Thus, in a sense, Dworkin's criticism on Hart was not contradictory but rather complementary. Even with his theory about the Herculean judge, a rule of recognition is needed and, actually, presupposed. What is more, the very essence of Dworkin's theory is based on the Hartian view; he does not suggest something completely different as a theory; what he does make is points that are based upon a well-structured theory on law's nature. While Dworkin's theories ofter are utopian, Hart's viewpoints could not respond to modern societies. Hart's fixation for the external description of legal practice with no moral statements and his commitment to positivism created a loop in his analysis.
Dworkin’s argument for legal paternalism, however, uses Mill’s argument against him, and ultimately proves to be the stronger principle to justify law. I believe legal paternalism is the only principle that may justify laws, and it will be explained why by showing how Mill’s own views allow for legal paternalism, how Dworkin perseveres freedom through interference, and how there are functions in place to minimize paternalistic interference. However, we must begin by defining what these two philosophies are. First, the harm principle will be explained. Mill himself writes it as being, “… the sole end for which mankind are warranted, individually or collectively, in interfering with the liberty of action of any of their number, is self-protection.
In this definition, Hobbes asserts that law is command, not counsel and that law are the rules of just and unjust. Hobbes insists that any law must be promulgated. In order for one to know how to obey it, a law must be "signified by sufficient signs". Laws must be made known for them to actually be law. Thomas Hobbes is legal positivists.
Said quality is crucial to any doctrine of the rule of law since it is key to conducting a fair judicial procedure as well as well as to the functioning of the court within the constitution and to the fair and just application of the law. What does the rule of law mean to you? In my opinion, the rule of law is a doctrine embedded in some form of constitution (written or unwritten) whereby the law, its legal principles and sources is the highest form of authority to govern a nation, rather than the government with its own individual and potentially biased decisions. For the law and its constituents to function properly and democratically, they must abide by a series of principles which determines how it is to be made and construed. Firstly, they should be clear, precise, accessible, cohesive but also subject to statutory interpretation.
While he has gained much criticism for this method of reasoning and understanding, Breyer believes that by looking at and comparing America’s justice systems to other countries, one will be able understand America’s laws and governing system on a deeper level. Breyer states that judicial philosophy hasn’t changed, but rather, it is the world that is changing instead. This statement is one that has garnered much critique, especially from originalists who believe the Constitution is a document that should be taken, word-for-word. To Breyer, his experiences as a judge and a diplomat have shaped him into the Justice he is today, regardless of the political climate. Breyer believes that his job is to simply upkeep the rules of laws, and through this, society will be able to flourish in a way that will be helpful to it’s inhabitants instead of adhering to ancient codes that, realistically, only benefits those in the
They appear too restrictive in terms of the theme of isolation. Considerable evidence, however suggests the probability that politics was a motivating factor in the genesis of the novel. The theme but also to the tight construction McCullers claimed and reviewers have so often questioned in that the parable is a key not to broader implications. The situation and setting and dramatized through character and action in the thematic patterns are delineated. The parable’s theme is an affirmation of the democratic process, but its implications are the universal problems of illusion versus reality and the nature of man himself.
Weak discretion is part of the judicial role. The discretion is controlled and there are no gaps in the law. Hart says that judges exercise strong discretion in hard cases. But that seems to equate: Rules + Discretion = New Rules. In order to understand Dworkin’s criticism of Hart, we need to understand the distinction drawn by Dworkin regarding Rules and Principles, and Constructive Interpretation as propounded by
authority, or state, is in the business of ensuring compliance with its dictates by means of the official use of coercive power. A state is morally legitimate only if it is justified in using coercion as a means of ensuring compliance with its laws. But, Dworkin insists, the use of such coercion is justified only if there is a general moral obligation to obey the law. Thus any argument for the legitimacy of the state must demonstrate the existence of a general obligation to obey the law. Dworkin argues that there are at least possible legitimate states, because there are attainable circumstances under which such an obligation would obtain.
In addition to the last paragraph, we find a more ethical perspective. The duty to protect other is one that philosopher, using the concept of natural law, called “natural duty.” (Nardin 2000) John Rawls stated, “Natural duties are the basis for humanity. Natural duties work together with obligations to form requirements.” (Rawls 1971) The tradition in which the use of force is justified not only by self-defense but also by the morality of punishing the wrong and protecting the innocent could be use as a pillar for the concept. This tradition has some connection with international law and humanitarian intervention. “It holds that armed intervention is morally justified when people are violently mistreated by their rulers, and is reflected in the widely held opinion that states, acting unilaterally or collectively, are justified in enforcing respect for human rights.” (Nardin 2000) It is this concept that best describes the moral of humanitarian intervention.
The irritation is often correct of powerful and rich people and government officials, the politicians and media editors and their columnists. In the law and the courts, those who are used to be obeyed and feared commonly find it intensely annoying that there is a source of power that they cannot buy or control. The essence of a modern democracy is yet observance of the rule of law, where the rule of law will not prevail without assuring the judges and the practicing lawyers and also the legal academics, which it’s a very high measure of independence of mind and action. Judges be free to interpret the laws independently, impartially and objectively without subject to any undue outside pressure from the police, the public opinion, the military, political, or any other interested body or person in order for justice to be performed. It is one of the judicial independence definitions.