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The america legal realism essay
Judicial decision making
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The expectation from our judges that they will always act objectively in making their decisions is correct but only to a certain extent. By using the theories of interpretation and judicial decision-making of both Dworkin and American Legal Realism, it is evident that a balancing act occurs between objective judgments and interpretation and subjective judgments and interpretation. Often, subjective judgments are the most dominant to a large extent. One must look at the ideas of Dworkin in terms of considering that judgments have aspects of both objectivity and subjectivity. One must also look at the ideas of American Legal Realism where subjectivity plays a gigantic role in judgments leaving objectivity with little or no influence whatsoever.
Dworkin believes in the idea that judges interpret cases and make their decisions as objectively as they can and as objectively as the law allows them. However, he also believes that there are gaps in the law which cause judges to be obliged to insert their own judicial discretion which thus gives us the proof of the existence of subjectivity in judicial interpretation and decisions. This idea is evident in the Riggs v Palmer case whereby a murderer was entitled to benefits of a will even though he was the person who killed the victim in order to benefit from such a will. This showed that the murderer was, in deed, acting in line with the law because in the particular circumstances, he was entitled to the benefits of the will but this was seen as problematic. This clearly showed that there was a gap in the law which reiterates what Dworkin has said because even though the murderer is acting within the lines of the law, by the court allowing him to benefit from the will, it would create ...
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...ivities such as judicial decision-making and interpretation, it is not non-e
Works Cited
Denise Meyerson ‘Law as Interpretive’ in L. Elaine (ed) Jurisprudence (2013) 135 at 151.
Brian Leiter ‘American Legal Realism’ in Martin P. Golding (eds) The Blackwell Guide to the Philosophy of Law and Legal Theory (2008) 50 at 53.
Meyerson op cit note 1 at 149.
Ibid 151.
Ibid 153.
Ibid 151.
Ibid.
Riggs v Palmer 115 NY 506 (1889) at 514.
Meyerson op cit note 1 at 151.
Ibid 184.
Ibid.
Ibid 151.
Leiter op cit note 2 at 51.
Ibid 53.
Ibid.
Ibid.
Ibid 50.
Ibid.
Ibid 53.
Meyerson op cit note 1 at 149.
Ibid.
Ibid 188.
Ibid 151.
Ibid 185.
Leiter op cit note 2 at 50.
Meyerson op cit note 1 at 188.
Leiter op cit note 2 at 50.
Ibid.
Meyerson op cit note 1 at 149.
Ibid 145.
Ibid 191.
Ibid
Ibid 150.
Ibid 145.
Ibid184.
However, after looking at the facts, and the ruling, Dworkin's theory of law and judicial reasoning provides us with the most satisfactory explanation, and also shows that rulings, when applying social principles are meant to enhance society and bring about social growth.
Originalism, an orthodox principle of legal interpretation, focuses on interpretation pursuant to the original understanding of constitutional words . This incorporates arguments from the ‘text, context, purpose and structure of the constitution’. The originalist method of constitutional in...
“The principle of stare decisis does not demand that we must follow precedents, which shipwreck justice.”
The law is seen in two ways; as being fair, neutral and having an unbiased arbitrator,
In addition to this, the analysis of law was not considered thoroughly during judicial decisions. Therefore, the court uses backward reasoning where it uses the expected results it wants to deduce to make decisions. Such activities in the justice department have a lot of impediments to the impartiality of judicial system. The rights of the criminal in many instances are affected by the use of such methods to deliver justice. According to Marshall, the legal analysis used to determine the outcome of the courts has reduced since the changes in the judicial system. The rights of the individuals have significantly reduced with the changes in the court system because only the nine judges are privy to the outcome of the court proceedings; they are also not liable to the questions that may be raised about the legality of their
federal courts: A content analysis based on agency theory. PhD diss., The George Washington University.
Reece H., ‘The paramountcy principle Consensus or construct?’ [1996] 49 Current Legal Problems p. 267-304
Culver, Keith Charles. Readings in the philosophy of law. 1999. Reprint. Peterborough, Ont.: Broadview Press, 2008. Print.
As a positivist, Hart believes that there should be a firm distinction between ‘law as it is’ and ‘law as it ought to be’, specifically law and morality. According to positivists, whether a law is valid or not is not dependant on the justification of said law, but rather that it is recognized as enforceable by tests that are enforced by an efficacious legal system. To better understand this theory, one must look at Hart’s definition of a legal system and the separation of primary and secondary rules. The former refers to rules that are socially acceptable in a society and regulate the behaviour of persons in a society by creating obligations and therefore creating social pressure to follow these obligations. It is, however, insufficient for a legal system to contain only primary rules and because of this secondary rules come into play. Secondary rules enforce primary obligations in the form of law.
(8) D., Lyons, Ethics and the Rule of Law, Cambridge University Press, 1989, p. 81.
Hobson, Charles F. The Great Chief Justice, John Marshall And the Rule Of Law. University Press Of Kansas: Wison Garey McWilliams & Lance Banning, 1996.
H W R Wade ‘The Basis of Legal Sovereignty’ (1995) 172 Cambridge Law Journal 186.
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.
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