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.
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.
In this essay I will be discussing how the formal theory of the rule of law is an erroneous means of establishing laws within a state. A central theme to addressing this is essay is the distinction between formal and substantive theories of the rule of law. In order to reach my conclusion of the formal theory being proven to be insufficient, one must first appreciate the significant advantages which the substantive theory obtains. However, before doing so, I will briefly mention the importance of the rule of law in society and the requirements it needs to fulfil. Most people would dispute that the significance of law in society is to obtain justice, however justice is simply a term which is determined subjectively, it relates to an individuals
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.
The Supreme Court created the independent source system in order to ensure that Federal Courts would not have to define what are property interests. The Courts reasoning was two-fold. First, the Court felt that Federal judges were ill-suited to create a list of property interests, and that it “would be more objective and constrained” if courts relied upon state law. Courts have also expressed concern that property interests may become outdated if left to the courts to decide. The second reason is that Roth and its line of cases are designed to protect states, and ensure they play a role in defining property interests.
The “Harm Principal” is applicable to this situation because although Mr. MacDonald had the right to act how he felt was appropriate; his ideas obstructed the officer’s right to safety and vs. the officer exercised his freedom to push the door open which infringed on Mr. MacDonald’s freedom to live the “good li... ... middle of paper ... ...t this matter be remitted to the Court of Appeal for sentencing and it will be necessary for that court to determine whether the mandatory minimum sentence applicable under s. 95(2)(a)(i) of the Code is constitutionally valid. These are issues that need to be decided by the legislative functions of government as opposed to judicial functions of government. Throughout this case, the judge was devoted to following procedural formalities and ensuring equality for all citizens. In conclusion, based on the reasons set out above, I wholly believe that the judge deciding on R. v. MacDonald, 2014 SCC 3 acted on the perspective of liberalism. Since the judge acted on liberalism, an equal decision was made and each citizen received their freedom and the politically correct decision.
Contract Law Bingham LJ's statement expresses well the purpose of the doctrine of frustration which is to moderate the general rule, as expressed in Paradine v. Jane (1647), that, unless they have been expressly qualified, contractual obligations are absolute. It does not tell us much about the underlying principles of the doctrine. How and when does it apply and what are the effects? Contract law needs certainty and a doctrine that excuses parties from the performance of their obligations must, by necessity, be restrictive and unambiguous. By concentrating on the object of the doctrine, however, the author reflects accurately the courts' modern trend of relying less on an abstract theory justifying the doctrine, and more on an objective interpretation of the contract and the practical situation before them in order to produce a just result.
An example is found in contract law which grants people the rights to independently facilitate commercial transactions rather than commanding them to behave in a certain way. If we were to subscribe to Austin’s command theory, contract law will necessarily have to be characterized as telling contract parties what they must do to enter into a contract. However, this is convoluted and glosses over the important role of the law to not only regulate human conduct, but also to create powers for the citizen to engage in conceptually antecedent conduct (Schauer, 2009). Further, Austin’s theory of legal validity fails to account for the “internal” and normative aspect of legal obligations where people obey valid laws even without the fear of a sanction or threat of force (Hart, 1994, p. 79 - 84). Such a command theory is my... ... middle of paper ... ...ver, Holmes’s theory is not instructive on how to go about making these “prophecies” of law without any reference to explicit guidelines or guidelines, notwithstanding his proposition of referring to rather arbitrary factors such as the moral and political climate.
And given that many laws are bound to be incorrect, or unjust, a proceduralist argument seems to be quite a bit more viable for the democratic decision making process. But the purely procedural method entirely ignores the epistemic side, and so the outcome of the decision does not matter as long as the procedures were followed correctly. Estlund then examines the epistemic side of things. He analyzes what he calls the Correctness Theory, which proposes that a decision is legitimate if it is correct. He has us consider a diverse society where a decision justified based on an independent standard, the example he used was justice.
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.