He believes that law is essentially subject to a procedural morality. On Fuller 's view, human activity is driven to achieve goal or is purposive in the sense that people engage themselves in a particular activity because it helps them to achieve some desired goals. Insofar as human activity is essentially purposive, according to Fuller, particular human activities can only be understood in terms that make sense to their purposes and desired goals. Thus, since law system is essentially driven in such a way to achieve a purpose, it can be understood only in terms that explicitly acknowledge its essential values and
The concept of judicial independence a fundamental important in United Kingdom legal system. The concept is enshrined in Act of Settlement !701. Not only does the judicial independence form an element in the concept of the separation of power and rule of law, but also it ensure two other powers apart from Judiciary fully comply with the constitution and the law. To begin with, the concept also emphasizes the safeguards for judicial independence. It is crucial the judge is independent and impartial.
Law nurtures the longing humans feel for a life driven by solid principles in a rational and orderly way. The “rule of law” stands immortally for the values of justice, objectivity and universality. Following the law is a practical and symbolic practice to demonstrate accountability and legitimacy. McEvoy (2007) defines legalism as “seductive” in the sense that its force tends to foreclose interrogatives from other perspectives that should be posited. Moreover, he points out that there is a tendency of understanding this legalist paradigm in a state-centric practice, which works through a top-down influence (McEvoy 2007).
Aquinas argued that ‘every human law has just so much of the nature of law, as it is derived from the law of nature,’ but adds, ‘if any point it deflects from the law of nature, it is no longer a law but a perversion of law’. To Aquinas, human reason is fallible and prone to mistakes; human law ‘cannot have that inerrancy that belongs to the demonstrated conclusions of the sciences’. [ See n.2.] He repudiates the thesis that a law is a law merely because it has been decreed by a sovereign. He suggested that a rule can only become ‘law’ only if it has has appropriate moral dimensions.
In the judicial and quasi judicial context, this concept is backed by the basic underlying rule of “Justice must not only be done but also seen to be done”. In this background, the Doctrine of necessity gives legitimacy to decision making by ignoring the possible bias. According to this doctrine, a decision maker subject to disqualification owing to bias or conflict of interest can nevertheless make the decision if: 1) no other decision maker who is competent is available 2) no other competent decision making body can be constituted 3) quorum can’t be achieved without including him In such scenarios, the doctrine of necessity overrules the rule against bias. The logic of the doctrine of necessity is that, if there is a choice between allowing a person with bias to make a decision or to stifle the
Thus the law “you will not stand on the blood of your neighbor” is valid because it protects the natural right that an individual has to life. On the other hand Aquinas believes that the validity of a law is rooted in the divine principles that underlie the law. Natural law consist of an ethical aspect, which are the moral principles only known to God as well as a legal component which is the expression of these moral principles within the human legal system . According to Aristotle these moral principles, which exist on the eternal level of law, are the basis of the laws that are created on the human level. In the adoption case Justice Dornor asked whether a person enjoys the fruit of a forbidden act in order to illustrate the moral principles underlying our laws .
He says that justice involves the idea of equality. He goes on to argue that the use of justice can’t be described in terms of the idea that justice and generality, as a legal ideal, might share. Laws should be very clear and it should be specified as to which norms have the status of law. Hart discusses this and takes the stand that they should not be the end-all of legal morality. Thus, as far as primary rules are concerned, Hart argues that there is a need for certainty, so that these rules can be applied by general public without any official guidance.
Therefore, there is no reason why divine law must be superior than man-made law when human is just as effective and arguably, even more effective. It is true that human law is self-imposed, capable of violation, subject to exception, modification and repeal. Human law can be binding in conscience if it is formed
According to legal positivism, law is synonymous with positive norms, that is, norms made by the legislator or considered as common law or case law. Formal criteria of law’s origin, law enforcement and legal effectiveness are all sufficient for social norms to be considered law. Legal positivism does not base law on divine commandments, reason, or human rights. As an historical matter, positivism arose in opposition to classical natural law theory, according to which there are necessary moral constraints on the content of law.
Natural law theory states that there are laws that are immanent in nature and the man made laws should correspond as closely as possible. Man can’t produce natural laws but he can find and discover through his reasoning. If a law is contrary to a natural law then it is not a law. Laws should be related to morality. It is a concept of a body of moral principal that is same for all the man and it can only be find through human reasoning alone.