How can moral judgement be passed if the concept (a subjective construct) responsibility and morality is detached from any objectivity? Furthermore, objectivity cannot be restricted by binaries such as good and evil. With that said, it seems life negating to pass moral judgement on a peer based on a code of morals without an objective foot to stand on. Nietzsche is also concerned with another leg of the traditional concept of responsibility: Causality. Nietzsche maintains that: Firstly, free will and unfree will does not exist and an actor does not act out of free will.
If judges were to make law in hard cases, they would be applying the law retrospectively; that’s against the rule of law. Citizen has a complaint that even though he was not surprised by retrospective legislation, there was no liability at that time he did the act. If the citizen is being made retrospectively liable, it is because there was no law at that time that made him liable that places a special duty upon the legislature to justify retrospective legislation. Critics such as Greenawalt have argues that the ‘denial of discretion is wrong and is inconsistent with our ordinary understanding of judicial responsibilities for opinions. To suggest that judges have discretion is not to imply that they have license to do what they will.
Thomas Hobbes is legal positivists. In an attempt to solve the problem of interpretation, legal positivists conclude that there is only one way to interpret a law. According to Hobbes ' theory of legislation, it is the people who enforce the law that decide what it means. Hobbes viewed law somewhat negatively, arguing that the nature of the law is a restraint on
Framing law under a social context Hart envisaged legal rules not as a threat or restriction, but rather as enhancers of legal and social relations; one of 'law's greatest contributions to social life'3. As Hart claimed, '[Secondary rules] may all be said to be on a different level from the primary rules, for they are all about such rules; in the sense that while primary rules are concerned with the actions that individuals must or must not do, these secondary rules are all concerned with the primary rules themselves. They specify the way in which the primary rules may be conclusively ascertained, introduced, eliminated, varied, and the fact of their violation conclusively determined' (Hart 1994, p.
In other words, it’s recognized but never has been carried out. • Society needs to try and realize the conception of distributive justice and the circumstances that are permitted (in the example given its related to common good) • Corresponding to Moral desert, under the
But the fact that modern developments have limited the degree of fit between the prefatory clause and the protected right cannot change our interpretation of the right... We think that limitation is fairly supported by the historical tradition of prohibiting the carrying of ‘dangerous and unusual weapons.’” Even he recognized that blatant originalism truly doesn’t work. Simultaneously, non-originalism can run into the problem of over-extrapolation and judicial legislation, a power the framers specifically did not want the Judicial Branch to have. In Federalist Paper 78, Alexander Hamilton explains how the Judiciary is the least dangerous and powerful branch of government: “Nor does this conclusion by any means suppose a superiority of the judicial to the legislative power. It only supposes that the power of the people is superior to both and that where the will of the legislature, declared in its statutes, stands in opposition to that of the people, declared in the Constitution, the judges ought to be governed by the latter rather than the
he cannot just state that ‘’ God doesn’t exist’’. As rationalism demands logic and concept so he can’t even state that ‘’ God is the one moving this whole universe’’. So a rationalist will take the existence of god as logically meaningless and he will take the position of a noncognitivist. The above example does not mean that rationalist cannot have any opinion about anything. An opinion that does not contradict logic observation or evidence does not prevent from forming an indefinite opinion.
Realist school: Trend setters of this school Oliver Windell Holmes Jerome Frank Gray Cardozo Roscoe Pound etc. This school of jurisprudence focuses on law not as per legislative statute or enactment but as interpreted by the judicial courts in a decision or pronouncement. Features of this school: Just like it is difficult to come up with certainity of natural sciences, similarly, it is difficult to come up with certainity of law as well. Henceforth, law is uncertain according to this school of jurisprudence. The propounders of this school were against the word “logic” .They have concluded that a judge while deciding a case focuses more on emotion rather than “
On the other hand Legal Positivism theory states that law is made by humans and has nothing to do with morality or justice. According to Herbert Lionel Hart, a prominent figure in legal positivism, ?valid legal rules is exhaustive of ?the law,? so that if someone?s case is not clearly covered by such a rule (because there is none that seem appropriate, or those that seem appropriate are vague, or for some other reason) then that case cannot be decided by ?applying the law.? It must be decided by some official, like a judge, ?exercising his discretion.?? [footnoteRef:1] Thus, Hart believes that judges should have some room in applying the law by using their discretion.