The question of the exercise of discretion by judges remains to be answered.
The question in this essay is not about how new laws should be created, but rather about how judges should go about with interpreting laws. This essay will focus on two approaches of law; namely, Formalism and Realism. Formalism in interpretation separates law from other related concepts such as politics and morality; this means that they should apply legal rules in exclusion of their subjective opinion. Realists are mostly about the nature of judicial decision-making. They argue law alone cannot answer every legal question, in addition to rules, the subjective opinion of the person applying the rules can determine the outcome of a case.
It is arguable that H.L.A Hart has made a commendable contribution to the development of legal philosophy. Hart positioned his theory between formalism and realism. On formalism, he looked at what he referred to as ‘easy cases’- cases where clear rules apply to a set of facts, whereby rules are determinant. In contrast, from a realist point of view, he looked at what he referred to as ‘hard cases’- where he conceded the presence of gaps in legal rules, which he claimed that they leave judges with no choice but to exercise discretion. In American the Constitution is accepted as a living document which has to be kept up-to-date to meet new circumstances and sensibilities. This idea seems to accept Hart’s concession on ‘hard cases’ because it is simply suggesting that it is better to create new laws than interpreting old ones.
In continuation, I will look at two theories in relation to Hart’s view on ‘hard cases’, that is, Dworkin’s Interpretism and Pragmatism.
Dworkin’s Interpretism
Dworkin’s critique, by contrast, focuses...
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...ire judges to set aside their subjective opinions when they apply legal rules. In the case Cameron J looked at the general definition of neutrality which entails not taking a side in a conflict, i.e. unbiased. Neutrality implies not judging the validity of an opinion. Dworkin does not rule out the possibilities of some judgments going wrong, and some being right than others but still maintains that judges have a responsibility to interpret the law, and that they should interpret the law in its best moral light. Dworkin’s point is that we should accept that all legal disputes are solved are solved using the law itself. Hart believes that there can be gaps in law, although there are sources like the Constitution of the Republic of South Africa, he still maintains that such sources will at some point prove to be indeterminate, forcing judges to exercise discretion.
The court case of Marbury v. Madison (1803) is credited and widely believed to be the creator of the “unprecedented” concept of Judicial Review. John Marshall, the Supreme Court Justice at the time, is lionized as a pioneer of Constitutional justice, but, in the past, was never really recognized as so. What needs to be clarified is that nothing in history is truly unprecedented, and Marbury v. Madison’s modern glorification is merely a product of years of disagreements on the validity of judicial review, fueled by court cases like Eakin v. Raub; John Marshall was also never really recognized in the past as the creator of judicial review, as shown in the case of Dred Scott v. Sanford.
The law is seen in two ways; as being fair, neutral and having an unbiased arbitrator,
Gunther, G. (1991). Constitutional Law. Twelfth Edition. New York: The Foundation Press, Inc. pp. 1154-1161.
Law is a system of rules that are implemented throughout social establishments to govern behavior. A principle for judging acts as reasonable or unreasonable and they may seem objective, universal, and knowable, which dispositions are guide. Our function is rational activity, and our rational nature gives us dispositions when we are naturally disposed to seek to know, understand, and be
Culver, Keith Charles. Readings in the philosophy of law. 1999. Reprint. Peterborough, Ont.: Broadview Press, 2008. Print.
The purpose of this paper is to discuss how Chief Justice John Marshall affected the American Judicial System. The reader will therefore first find a brief biography of John Marshall. Then the paper will explain in detail the origins of the Judicial Power to subsequently...
Remy, Richard C., Gary E. Clayton, and John J. Patrick. "Supreme Court Cases." Civics Today. Columbus, Ohio: Glencoe, 2008. 796. Print.
Hall, Kermit L, eds. The Oxford guide to United States Supreme Court decisions New York: Oxford University Press, 1999.
This theory looks at how the sovereign and its officials created the law based on social norms and the institutions (Hart, 1958). However, hard cases such as this makes for bad law, which test the validity of the law at hand based on what the objective of the law was in the first place. The law should not be so easily dismissed just because it does not achieve justice in the most morally sound manner (Hart, 1958). Bentham and Austin understood that there are two errors in the way law is understood, what the law is and what the law should be (Hart, 1958). He knew that if law was to become what humans perceived the law ought to be, the law itself would be lost, but he also recognized that if the opposite was to occur where the law replaced morality, than any man would escape liability and there would be no retribution (Hart, 1958). This theory looks at the point of view of the dissenting judge, Justice Gray, which is that the law is what it is, even if it may conflict with morals. Austin stated that “The existence of law is one thing; its merit and demerit another. Whether it be or be not is one enquiry; whether it be or be not conformable to an assumed standard, is a different enquiry (Hart, 1958).” This case presents the same conflict that Bentham and Austin addressed, that the law based on the statute of the
Columbia Law Review, 104, 1-20. doi:10.2307/4099343. Reynolds, S. (2009). The 'Standard'. An interview with Justice Ruth Bader Ginsburg.
Over the years, different jurisdictions had built their specific system of rules of conduct to govern behaviour. These legal systems, influenced by historical and cultural roots, can be distinguished in two families, the Civil law and the Common law legal systems. The distinctions lies in the process in which each decision is make by the judge and on the legal sources that shapes the law. Indeed, by contrast to the Common law system, which is largely based on Precedents, meaning the decisions that have already been made by judges in similar cases, the Civil law system is based on legislator’s decisions and legal codes with which judges have to justify their judgment . Consequently, instead of referencing to concepts and rules
An issue that has remained debatable since the Jackson litigation was what ought to be the ultimate controlling factor in the British constitution: parliamentary sovereignty or the rule of law. This essay sets out to consider the reputedly irreconcilable tension between the two fundamental constitutional principles by analysing the extensive obiter dicta in Jackson and relating it to judicial review which upholds the rule of law. The contention of this essay is that despite the courts' deferential attitude towards the sovereignty of the laws of Parliament, the rule of law may potentially gain dominance and surpass parliamentary sovereignty to become the ultimate controlling factor in the British constitution.
Ronald Dworkin has become one of the most influential legal philosophers over the last century providing a ‘sophisticated alternative to legal positivism’. Dworkin is a non-orthodox natural law theorist, his account of law centres on his theory of adjudication. A key aspect of adjudication is the concept of Law as Integrity. However, some commentators suggest that Dworkin’s ideal does not reflect the reality of judicial interpretation. In this paper I will outline Dworkin’s ‘law as integrity’ and then highlight some of the criticisms that appear to generate doubt over his writings as a convincing model. I will conclude that whilst his main opponents offer some substantial critiques of Dworkin’s theory of ‘law as integrity’, Dworkin does establish a convincing theory that tries to bridge the gap on judicial discretion that other notable theorists, including H.L.A. Hart, fail to achieve.
Leslie G. Scarman, ‘Codification and Judge-made Law: A problem of co-existence’ [1967] 42(3) Indiana Law Journal http://www.repository.law.indiana.edu/ilj/vol42/iss3/3 accessed 12 February 2012
The central aim of this essay will be to support the legal-positivist that law and morality are strictly separable. In its simplest form many understand legal positivism to be the existence and content of law, which depends on social facts, and not on its merits. I will engage closely with the work of John Austin and his concept of law, which offered a developed and progressive piece of work from Bentham, focusing on Austin’s The Province of Jurisprudence Determined (1832) in order to demonstrate one of the earlier accounts of legal positivism. By exploring Austin’s theory of sovereignty, in which he outlines that in every state there exists an authority to which a large mass of citizens show compliance, I will address the consideration that