One of the biggest problems with substantive versions of the rule of law is that definitions and meanings behind laws under the substantive theory can cause confusion among those trying to understand them. What makes substantive laws a potential threat to democracy is that when establishing laws around individual liberty, it becomes an issue because it may outweigh democracy in the process. It can be said that while a person may think they know the definition of substantive laws and what they mean, however, they may find themselves in legal proceedings where rights or laws change in meaning. Another problem with substantive laws is that there are some who believe the judicial system is a concern due to judges being given power to make decisions …show more content…
It is understood that certain elements of democracy are the right of owning property, having free association, the freedom of speech, and various other things as these are some of the necessary prerequisites for the realization of the self-determining person that democracy presupposes (p 105). These presupposes of democracy, however, when used as a basis to create laws that represent various facets of peoples’ liberties they can conflict with democracy. By attempting to establish personal liberties what can happen is that the greater democracy can be restrained due to the establishment of the personal liberties that each and every individual are entitled to. Responses to these anti-democratic claims made by some are that individual rights are required to preserve the integrity of democracy; that is, only free people can exercise the self-determination of democracy (p.104). It can be noted that some believe the existence and extent of democratic governance is only justified insofar as it best serves the enhanced liberty of individuals (p.105). Nevertheless, to this claim one can question if democracy is to pla secondary to personal liberties or functions as a greater force that establishes individual liberties while also staying true to democratic principles in the process. …show more content…
Today, while we live in democratic nations and have a general idea of our individual liberties and what democracy means, however, when analyzing the role of how substantive laws are established, what they mean, and how the legal system through judges define rights as well as have the final say in complex issues that relate to legal proceedings there is a reasonable doubt as to if the system is truly being democratic. Additionally, the role of democracy has some raise the question if democracy plays secondary to individual liberties or should function solely based on democratic principles. It can be stated that historically the judiciary system, appointing judges to settle legal matters have in the past shown signs of subjectivity concerning legal matters which further raises questions about the power given to legal positions who make crucial decisions about laws and rights. The establishment of substantive laws being given a definition and meanings to what they mean on paper does not entirely mean that they hold true in court proceedings or legal matters. Furthermore, this issue becomes more questionable as laws and rights can essentially be redefined in meaning by judges who make the final decision in the court proceedings of cases with either definitive details about the matter or a questionable lack of details. It can be understood
Government officials serving in the Judiciary branch hold incredible power, not only due to judicial review, but also because they are insulated from the American people. Supreme Court Justices are unelected and hold lifelong terms in office. Officials that are appointed by the President or a party usually have that person or party’s interests in mind. This action is not democratic because it allows the Judicial Bench to be stacked with a singular party’s morals and beliefs. This phenomenon contradicts all aspects of democracy by giving indispensable powers to these officials for life, by taking away the people’s right to representation by election, and by allowing certain degrees of judicial activism. Unelected judges that make important decisions for the American Government are not held responsible or accountable for any actions that appear to be wrong in the public’s eye because they cannot be removed from office except when having been convicted of a felony.
Can certain people assume absolute rights over others? Do people deserve a voice in determining what goes on in their lives as well as their country? Are people liable for their own actions? The questions asked above all fall under one theme that will be discussed: autonomy and responsibility. The American Heritage Dictionary defines the word ‘autonomy’ as self-government or the right to self-government; self-determination; independence.
In legal theory, there is a great debate over whether or not law should be used to enforce morality. The sides of the debate can be presented as a continuum. At one end, there is the libertarian view, which holds that morality is an individual belief and that the state should not interfere in the affairs of the individual. According to this view, a democracy cannot limit or enforce morality. At the other end, there is the communitarian position, which justifies the community as a whole deciding what moral values are, and hence justifies using the law to enforce community values. For libertarians, judges should play a prominent role in limiting the state, while for communitarians, judges should have as small a role as possible. In between these two extremes sit the liberal egalitarians, who attempt to reconcile democratic decision-making about moral values with liberalism. The problem is made more complex when one considers that both law and morality are contested concepts. Two recent cases where this continuum can be illustrated are Canada [Attorney-General] vs. Mossap, and Egan vs. Canada. In this essay, I will attempt to explore some of the issues produced in these two cases. I will begin with a summary each case, followed by an analysis of the major themes involved. I will then place the issues in a larger, democratic framework, and explore the role of law in enforcing morality in a democracy. I will then prove how the communitarian position - as articulated by Patrick Devlin - supports the decisions given in Mossap and Egan, and how even the great proponents of libertarianism - Mill and von Hayek - would agree that the decisions were just. A conclusion will then follow.
To the extent that we support individual rights of expression, argument and criticism, we make claims inconsistent with a view of democracy founded on the absolute sovereignty of the people as a whole. (1982, p. 41)
This paper discusses the contrast of two landmark United States (U.S.) Supreme Court cases that helped to clearly define how the Fourth and Fifth Amendments of the U.S. Constitution is interpreted, and analyzes the difference between the “Constitution” and “Constitutional Law.” Two cases that are referenced in this analysis are (1) Katz v. United States, 386 U.S. 954 (U.S. March 13, 1967), and (2) Olmstead v. United States, 277 U.S. 438 (U.S. June 4, 1928), which differed in ruling; one eventually overturning the other. Finally, a conclusion is drawn as to the importance of these case decisions in the lives of Americans.
In William Hudson’s book, American Democracy in Peril, he writes about different “challenges” that play a vital role in shaping the future of the United States. One is the problem of the “imperial judiciary”. Hudson defines its as that the justice system in the United States has become so powerful that it is answering and deciding upon important policy questions, questions that probably should be answered by our democratic legislatures. Instead of having debates in which everyone’s voices are heard and are considered in final decision-making process, a democratic-like process; we have a single judge or a small group of judges making decisions that effect millions of citizens, an “undemocratic” process. Hudson personally believes the current state of judicialized politics is harming policy decisions in Americans. According to him, the judicial branch is the “least democratic branch”, and ...
First of all, judges play an essential role in our democracy, by interpreting the law and being impartial, they make decisions which keeps our country in a democratic state. Judges promote and support charter rights, including freedom and equality. A strong case that proves that judges are an essential part in a democracy is shown in the case of Obergefell v. Hodges, John Obergefell was fighting for the legalization of same - sex marriage in The United States. On November 2014, the case went to the supreme court where it caught the attention of the nation. Obergefell was not only fighting for his own rights
The Hollow Hope examines the following research question: when can judicial processes be used to produce social change? (Rosenberg 1). Rosenberg starts out the book by describing the two different theories of the courts. The first theory, the Dynamic Court view, views the court as being powerful, vigorous, and potent proponents of change (Rosenberg 1). The second theory, the Constrained Court view, views the court in the complete opposite way. With this view the court is seen as weak, ineffective, and powerless (Rosenberg 3). In this view there are three different constraints that restrict the courts from producing effective political and social change. These constraints include: limited nature of constitutional rights, lack of judicial independence, and the lack of tools the courts need (Rosenberg 35). Even though there are constraints on the court there are conditions where the court is able to overcome the constraints.
‘Law as integrity’ embraces a vision for judges which states that as far as possible judges should identify legal rights and duties assuming that they are created by the public as an entity, and that they express the public’s perception of justice and fairness. This requires Dworkin’s ideal of Hercules, a judge of ‘superhuman skill, learning, patience and acumen’, to ask whether his interpretation of law could form a part of a coherent theory justifying the whole legal system. Law as integrity stipulates that the law must express one voice. Judges must accept that the law is based around coherent principles about justice, fairness and procedural due process, in all new cases which comes before them in order to treat everybody equally.
Robert N. Clinton, ‘Judges Must Make Law: A Realistic Appraisal of the Judicial Function in a Democratic Society’ [1981-1982] 67 Iowa L. Rev. 711 http://heinonline.org/HOL/Page?handle=hein.journals/ilr67&div=38&g_sent=1&collection=journals accessed 12 February 2012
It is important to distinguish between freedom’s kinds of values, because in defining a system of government, the attitude towards freedom is a key component. If freedom has no independent value, different schools of political thought might have the standpoint, that we should not value freedom at all, only the things that it is means to. Some might think that they know better what is good for people, and feel justified in constraining people’s freedom. We intuitively value freedom, and usually do not even notice, that we have it, because it woven through so much of our everyday life. We take freedom for granted, even though in some countries it is not so trivial. It is not enough to feel that freedom is our basic right, but to understand why it is so important, and why freedom can not be replaced by the specific ends one might think it is means to. I will argue, that freedom does have independent value. First I will talk about the non-independent value of freedom, and look at the different independent values, then concentrate on the non-specific instrumental value. I am going to look at claims where Dworkin and Kymlicka were wrong, and evaluate Ian Carter’s standpoint.
Human history is pock-marked with innumerable wars and revolutions. The cause for most of the revolutions has been the choice of freedom. The opportunity to live a life without physical, mental or emotional restrictions has been and still is of supreme importance to man. This has resulted in the most widely followed discipline of political governance: Democracy.
Modern day society is engrossed in a battle for protection of individual rights and freedoms from infringement by any person, be it the government or fellow citizens. Liberalism offers a solution to this by advocating for the protection of personal freedom. As a concept and ideology in political science, liberalism is a doctrine that defines the motivation and efforts made towards the protection of the aforementioned individual freedom. In the current society, the greatest feature of liberalism is the protection of individual liberty from intrusion or violation by a government. The activities of the government have, therefore, become the core point of focus. In liberalism, advocacy for personal freedom may translate to three ideal situations, based on the role that a government plays in a person’s life. These are no role, a limited role or a relatively large role. The three make up liberalism’s rule of thumb. (Van de Haar 1). Political theorists have
In turn, democracy provides the natural environment for the protection and effective realization of human rights. (Democracy and Human rights)
Democracy has come to mean a principle under whose flag has most of the developed countries aced in their race for Imperialism. It has gone beyond all previous governing systems and has made room for progress and development. By offering free and fair elections, democracy has redefined human dignity and patriotism. It has also helped to improve decision-making among the citizens, and brought down the crime level. Democracy is for sure the most fitting among the other types of government, and needs to be implemented fully for effective functioning of a state.