Raz also states that “the principles of natural justice must be observed” and that “the courts should have review powers to ensure conformity of the law”, however, the formal theory shows no regard of “natural justice” as it is a theory concerned with the procedures followed and not the content of the law, so therefore there is weakness in Raz’s theory of the rule of law. Therefore the formal theory of the rule of law engenders to unjust situations which may be justified if good procedures are implemented when making the law. Nonetheless, Raz upholds the notion that the substantive theory is inadequate as
Furthermore, legal positivists argue that moral norms are distinct from legal norms and therefore prefer to exclude it from the institutional law theory. MacCormick argues that not all legal rules contain a moral element. This is a limitation of the theory as the law can only maintain the normative order in the “legal sense.” Different people have different views on what is morally correct and if this is not embodied in the law then it is difficult for the normative order to be upheld as there would be a conflict in the decision of what ought to be done in the circumstances. Moreover, this theory is based on democratic law which is not universal and therefore rejects the
Nagel is not interested in justifying absolute rights, but in articulating actions that are prohibited. His belief is that the world is an imperfect place; that fear and human cruelty will always present difficult moral situations, and that therefore, establishing criteria to deal with these less than ideal situations is essential. He also argues, unlike Gewirth, that one can be confronted with two choices, both of whose outcomes are bad, and for both of which one bears responsibility. Thus, he asks, when both respecting and violating an absolute right are wrong, what is the morally right thing to do?
Despite, the Ipp Report providing people with a better understanding of the Act, some of the recommendations frustrate what has been said in case law. Recent High Court decisions have been leaning towards an increasingly strict application of the “but for” test. “The plaintiff must provide direct evidence establishing that, on the balance of probabilities, the harm would not have occurred “but” for the defendant’s negligence”. The Ipp report panel made no recommendations to overturn the ‘but for’ test in fact it believes that it is a “necessary condition”. Clearly, the “but for” approach plays an important role as a “threshold” test, but it should not be applied as the only test for factual causation, because it sometimes yields unacceptable results or results that do not accord with common sense.
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.
He rejected its neglect for including morality with regard to the law, arguing it was impossible to separate these two concepts and that morality influenced the legal system through legal principles. Legal principles that were drawn from common law supplemented existing legal rules he argued, acting as an indication and guide towards what the law ought to be. Due to their uncodified status, principles were more adaptable and better positioned to maintain justice over a lengthy period of time. Dworkin also boldly stated that the presence of legal principles indicated that there was one correct outcome to all legal cases; it was simply the task of judges to discover it. What can be drawn from Dworkin is that he believed legal positivism defined the law too narrowly; with the inclusion of legal principles he argued a more inclusive description could be
(b) i. Distinguishing a case Distinguishing a case means that we are arguing that the material facts of the present case differ from what has been presented in the earlier case and respectively should not be dealt with on the same principle of the earlier case. By other means, the ratio decidendi of the previous case does not apply. Besides that, the differences noted should be material and be able to affect the Court’s decision. ii. Overruling a case Overruling a case means that if a decision of another Court is overruled, then the ratio decidendi of that earlier decision is no longer good law.
Despite Mill's conviction that act-utilitarianism is an acceptable and satisfying moral theory there are recognized problems. The main objection to act-utilitarianism is that it seems to be too permissive, capable of justifying any crime, and even making it morally obligatory to do so. This theory gives rise to the i... ... middle of paper ... ...absent in the utilitarian standpoint. Ergo, rule- utilitarianism does not allow for an individual's freewill because it tells one to examine others rules, or beliefs and not one's own. Thereby conforming to sociality.
Raz states that ‘The law can violate people’s dignity in many ways. It is clear that deliberate disregard for the rule of law violates human dignity. It is the business of law to guide human action by affecting people’s options. The violation of the rule of law can take two forms. 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.
King says, “An unju... ... middle of paper ... .... I think some laws cause more problems just because people don’t agree. In conclusion King argues that a man has a right to take the law into his own hands, if the law is unjust. He also states that if the law is morally wrong any person should be able to disobey that law. Leibman contradicts by stating whether or not the person believes the law to be unjust he still should not break that law.