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.
This is proven when looking at the flaws in act-utilitarianism and relating them to the ways in which rule-utilitarianism tries to overcome them. As well one must look at the obstacles that rule-utilitarianism has on it's own as a theory. The problems of both act and rule utilitarianism consist of being too permissive and being able to justify any crime, not being able to predict the outcomes of one's actions, non-universality and the lose of freewill. Act-utilitarianism is a theory suggesting that actions are right if their utility or product is at least as great as anything else that could be done in the situation or circumstance. Despite Mill's conviction that act-utilitarianism is an acceptable and satisfying moral theory there are recognized problems.
That is, your particular charact... ... middle of paper ... ...essed for those decisions. Nagel constructs a number of compelling arguments in attacking Kantian morality, but in the end he simply misses the point. While numerous influences and external factors may affect the decision of a person, it is still the duty of that person to find the information that is correct and lead himself to the correct moral decision. If Nagel were correct, we would be unable to apply moral evaluations to anyone. This dissolution of morality looms over us threateningly until we realize that its strength is renewed with our own deeper focus.
He knew that if law was to become what humans perceived the law ought to be, the law itself would be lost, but he also recognized that if the opposite was to occur where the law replaced morality, than any man would escape liability and there would be no retribution (Hart, 1958). This theory looks at the point of view of the dissenting judge, Justice Gray, which is that the law is what it is, even if it may conflict with morals. Austin stated that “The existence of law is one thing; its merit and demerit another. Whether it be or be not is one enquiry; whether it be or be not conformable to an assumed standard, is a different enquiry (Hart, 1958).” This case presents the same conflict that Bentham and Austin addressed, that the law based on the statute of the
The Doctrine The doctrine of precedent is based on the need for certainty in the law. It means that lawyers can properly advise their clients on the basis that like cases will be treated alike, rather than judges making their own random decisions which nobody could predict. This helps people plan their affairs. According to Lord Denning, ‘It is the foundation of our system of case law’. However, Denning was ‘against is its too rigid application - a rigidity which insists that a bad precedent must necessarily be followed’.
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.
Understandably morals and law intertwine as both are concerned with upholding standards. However, the standards are not always the same and subsequently can conflict. Challengingly, in a modern democratic society finding a p... ... middle of paper ... ...ith concerns regarding Bentham substantiate that Bentham’s theory is the most congruable under the circumstances. I nevertheless will briefly rebut this critism of democracy as one needs to acknowledge individuals make up the majority. Conclusion Extreme interpretations of either theory are unworkable.
Justices must by necessity implicitly or explicitly consider questions of wisdom, justice, social harm and morality when deciding if a statute is unconstitutional. They should ensure that all these considerations are rooted in constitutional principles and constitutional questions. Society should not imagine these considerations are not present in judicial reasoning, nor should justices be ruled by them. The questions justices properly ask when deciding if a statute is unconstitutional are shaped by a moral vision of the proper role of the judiciary in representative democracy. There are times when the correct constitutional reading of a challenged statute is explicit and uncontroversial.
This means that two people may hold different opinions but it is the opinion of society as a whole that is considered to be the legitimate prescription to the problem. Estlund calls this “Epistemic Proceduralism” because it combines key points from both epistemic and proceduralist philosophies. This allows for some substantively unjust laws to be considered legitimate within large groups of people depending on the prevailing moral trends within society. Epistemic and proceduralism combination of democracy is one of the reasons people accept erroneous decisions have authority and legitimacy as long as proper procedures and guarantees were respected. This means that it is the common acceptable interpretation of justice rather than “true justice.” Anytime debate hits the public arena there will always be a variety of opinions and decisions must derived from procedural means rather than substantive correctness.
Many individuals who reside in democratic nations believe separation of powers combined with checks and balances ensure the government remains fair and incurropt. However, this belief is very difficult to prove because of the issue in defining an operatonal measure of checks and balances for a cross-country seeting, and missing counterfactuals in the seperatoin of powers. In this paper I will show recent work in poilitical agency withj data on corru... ... middle of paper ... ...means the Court cannot issue advisory opinions on legislation. In addition, a party bringing suit must have standing (a direct stake in the outcome) in order to challenge a statute. The most important rule of judicial restraint is that statutes are presumptively valid, which means that judges assume legislators did not intend to violate the Constitution.