Secondary rules enforce primary obligations in the form of law. The rule of recognition can be used to explain this more clearly. Hart stands firm that the fulfilment of moral criteria is not needed in order for a law to be valid and denies the fact that there is a connection between law and morality. He states that in order for a norm to be legally valid, it has to observe ‘fundamental rules specifying the essential law-making proce... ... middle of paper ... ...riate and critical analysis of the law. Personally, Fuller’s idea of a legal system seems more plausible as he does not attribute legal validity in a binary fashion and there is room for moral criticism of the law.
You must support your answer with reference to academic and judicial opinion, as well as developing your own argument. There is great difficulty in defining the rule of law despite its unprecedented significance; however, simply in the words of TRS Allan it is ‘a corpus of basic principles and values, which together lend some stability and coherence to the legal order’. Raz and AV Dicey discuss the characteristics of what the law should be in their formal (procedural) definitions, whilst Fuller examines the content and morality of legislature. This essay aims to scrutinise both perspectives whilst questioning the possibility of the rule of law to co-exist in a legally sovereign and or democratic and non-democratic states today. Many argue that the rule of law is outdated and inapplicable to the modern world today.
"Our vowed responsibility is in this: That however pitiless that law may operate, we nevertheless adhere to it and administer it." This was, however, not the only factor to be looked after. What options they had does not dictate the morality of an act, it is only one part of a larger whole. Law is, in itself, morality, by nature of the fact that to defy law results in chaos. Originally the law was created to serve as a means of carrying out Justice, but the sheer nature of the fact that it has since, as in this case, acted in some way other than to uphold such a concept proves that it is a separate entity unto itself.
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.
However, Denning was ‘against is its too rigid application - a rigidity which insists that a bad precedent must necessarily be followed’. It is the doctrine’s rigidity that can prevent developments to meet the changing needs of society. However, this was recognised in the House of Lords 1996 Practice Statement. In addition, judges in the lower courts are adept at avoiding the doctrine’s rigidity. A judge may distinguish the awkward precedent on its facts - arguing that the facts of the case under consideration are different in some important way from those of the previous case and therefore the rule does not apply.
It may lead to uncertainty or it may lead to frustrated expectations.’ What Raz is saying here is that it is best to adopt the formal theory of the rule of law over substantive, keeping law and human rights separate, otherwise it would clash and not concentrate on the basic formal principles that both theories are concerned with. Take for example, as Raz says ‘uncertainty’ is clear violation of the rule of law, both formal and substantive theories are concerned with this, and this is prevented when agencies of the law i.e. courts provide ‘prospective, open, and clear’ laws. This means that laws should be available to everyone and easy to understand. Therefore the state transporting sections of individuals to concentration camps can be seen, in theory, from the viewpoint of the state in question, law abiding to the UK courts.
Hart claims that existing law must make reference to the basic rule of recognition , in basic terms, Hart is saying that a rule can only count as a law if it emanates from a certain source ( i.e. Statutes). According to Hart the main reason for having a rule of recognition is to provide a body of rules which will be publically ascertainable. This will allow us to work out what the rules are without having to depend on (usually subjective) judgments about justice or moral rights. Dworkin disputes this view of law and legal reasoning because he believes that the thesis only identifies the law by the criteria of pedigree and not by the criteria of content.
The critical features of liberal legalism are expressed within the law and our legal system in that it is adherence to precedent, there is separation between judicial and legislative functions of government, and it is adherence to procedural formalities. In conclusion, legal liberalism is a legal and political theory that politics should be controlled by constitutional limits. Liberalism can construe a particular decision because although we are free to conduct ourselves how we see fit, we cannot obstruct someone else’s freedom therefore freedom is fundamentally limited. Liberalism expects a logical and rational “actor”. In order to act freely we need space so we aren’t getting in the way of someone else’s freedom, therefore citizens must act within the straight and narrow path of the set rules.
Regarding judicial review, Chief Justice John Marshall wrote in his opinion that, “It is empha... ... middle of paper ... ...es his point by saying that it does not specify the extent of those powers. Personally, I believe that judicial review is a necessity in order to preserve the constitution. Thus, I disagree with Gibson’s opinion. Although I understand the content of his words and why he believes them, but I think a very specific power such as judicial review is necessary to check the other branches. The judiciary cannot abuse the power but the legislative and executive branches can create laws that are abusive to the powers given to them by the constitution.
Though in reality, that offense may be morally wrong but it is yet to be discovered and entered as a legal principle thus, representing the prediction of the future consequences. Holmes further says that the interpretation of the law in a universal notion as morally obligated... ... middle of paper ... ..., Holmes says legal language should be based on amendment or changes to suit current situations and not be measured from old or fixed legal principles. Indeed, Holmes’ theory that “the nature of legal language can obscure the social interests and hide the social advantage to some that a law promotes” is a very important philosophical thought. The fact is that legal language denies some people the right to social advantage or equal justice. For this reason, we should look at laws as they ought to be based on current situations at hand.