Morality in the Judicial Process Essay

Morality in the Judicial Process Essay

Length: 2255 words (6.4 double-spaced pages)

Rating: Term Papers

Open Document

Essay Preview

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. In these cases, it would be extremely harmful to the legitimacy of both the court and the constitution to rule in opposition to the uncontroversial reading. However, abundance of clarity leading to homogeneity of opinion is not the norm. In the majority of cases, justices must make choices about how to read the constitution, which precedents are most relevant, what principles to draw from those precedents, whether those precedents should be upheld or modified, when the arguments of dissenting opinions are more convincing than the majority, the natural meanings of words, and the parsing of punctuation. When faced with these questions about the application of the constitution, justices have further choices to make about how best to rule. One choice they might make is to apply an academic theory of interpretation. For example, a justice might ascribe to the original meaning school which holds that the text should be read by modern observes as it would have been by reasonable people when it was written. By contrast, a justice might instead ascribe t...

... middle of paper ...

...overnment is by “consent of the governed”. This principle is applied to the judicial system by limiting the power of judges, and ensuring as many decisions as possibly are made through the democratic process. In the legislature, the most directly democratic of social intuitions, laws are written. It should be in the legislature where the questions of morality, which guide the writing of laws, are publically debated. A system of justice which ignores this moral foundation may be more flexible to punish grossly immoral behavior in individual cases. This advantage in flexibility is not worth the cost in consistency, predictability, and moral legitimacy to the law as a whole.

Works Cited
Regina v. Instan (1893) 1 QB 450
United States. Senate. Confirmation Hearings on Federal Appointments, Committee on the
Judiciary. 108th Cong., 1st sess. Washington: GPO, 2003.

Need Writing Help?

Get feedback on grammar, clarity, concision and logic instantly.

Check your paper »

Interpretation in Judicial Decision-Making Essay example

- The importance of legal positivism for legal practitioners is undoubted. The legal system, originating from two version being both English and Continental-European, has indeed undergone a process of evolution. Today, the existence of a separate legal view in society with its legal norms and a strict separation of law and morality is witnessed. An autonomous order has emerged in our modern society and law is now seen to be separate and self-sustaining with a normative function. There was no longer an external view of the legal system, as all law is man-made by the Parliament and thus a new theory was needed to understand and replace natural law....   [tags: legal positivism, judges, rule bound]

Term Papers
2130 words (6.1 pages)

Essay on Democratic Morality and the Administrative Law

- John Rohr views on Democratic Morality and the Administrative Law and how these laws affect the organizations. Democratic Morality deals with the issue that large organizations will have more control or influence on the development of policy. The Administrative law is concern with the legal aspect of the organization and the fairness across the board. The author examines the administrative law of democratic morality between the periods of 1800s and 1900s, with emphasis on the how democratic morality was used to bring about changes in the organizations....   [tags: Politics]

Term Papers
1994 words (5.7 pages)

Should We Legislate Morality? Essay

- If something is immoral should it also be illegal. In America, we should not pass laws where the primary concern is morality; we should only pass laws which have civil values as their primary concern. Civil values in this case are values which either ensures the safety or order of a society, such as, traffic laws or zoning laws. Also involved are more important values such as freedom, democracy, and liberty which have been laid out by our founding fathers. I have two basic reasons for holding this view....   [tags: Philosophy]

Term Papers
886 words (2.5 pages)

The And Moral Responsibility : The State Of The Debate Essay examples

- According to Greenspan, "Such cases as “impaired” psychopaths, perhaps redundantly, to allow for the possibility of deviant but basically functional cases. Though impaired psychopaths are not psychotic, I think we are intuitively inclined to deny them free will insofar as they lack a crucial resource for self-control. However, I shall argue that we can still hold them responsible" (Greenspan 420). Some people believe that Psychopaths are morally accountable for their actions because they still understand right from wrong, they do not feel guilt but they understand society 's laws....   [tags: Morality, Ethics, Remorse]

Term Papers
1201 words (3.4 pages)

The First Stage Of The Judicial Process Essay

- The first stage of the judicial process is a person has to commit a crime or be suspected of committing a crime. This is any violation of the law. There are crimes such as a ticket violation that do not require an arrest, but a person will just get a warning or a fine. After a crime is committed or suspected of committing a police officer will make an arrest. Arrest is physically taking someone into custody who was suspected of committing a crime. (Fradella & Neubauer, 2011). They will go through the process of being booked....   [tags: Jury, Appeal, Court, Grand jury]

Term Papers
2126 words (6.1 pages)

Judicial Process of the Supreme Court Essay

- Nature’s Judicial Process in the Supreme Court consists of decision-making; based on the jurisdiction of the Supreme Court. Although the Supreme Court has the capability to decide all extended cases; it also has the power to ascend under the Constitution, which allows the Supreme Court its jurisdiction in the Judicial Branch of government. The Judicial Process interpret the laws that are established in the Supreme Court; thus, allowing the Court to exercise its power by shifting its system under the Constitutional laws of the United States....   [tags: American Government, Supreme Court]

Term Papers
1160 words (3.3 pages)

Judicial Misconduct Essay

- Founders of the United States of America believed in providing the people of this great nation with a fair, and impartial judicial system. The basic rights of the people, which are listed in the Bill of Rights, needed to be respected and protected by the government. Abraham Lincoln once said “Government of the people, by the people, for the people, shall not perish from the Earth”. Every part of the United States government has a duty to protect the people that gave the government power, and one organization in particular plays a very large role in this charge....   [tags: prevention, judicial system, United States]

Term Papers
2125 words (6.1 pages)

The Problems Created by the Doctrine of Judicial Precedent Essay

- Introduction This submission will discuss the problems created by the Doctrine of Judicial Precedent and will attempt to find solutions to them. Whereas, English Law has formed over some 900 years it was not until the middle of the 19th Century that the modern Doctrine was ‘reaffirmed’. London Tramways Co. Ltd V London County Council (1898). Law is open to interpretation, all decisions made since the birth of the English Legal System, have had some form of impact whether it is beneficial or not The term ‘Judicial Precedent’ has at least two meanings, one of which is the process where Judges will follow the decisions of previously decided cases, the other is wh...   [tags: Judicial Precedent]

Free Essays
1530 words (4.4 pages)

The Judicial Process and Batson Case Essay

- The Judicial Process and Batson Case Despite the efforts of lawyers and judges to eliminate racial discrimination in the courts, does racial bias play a part in today’s jury selection. Positive steps have been taken in past court cases to ensure fair and unbiased juries. Unfortunately, a popular strategy among lawyers is to incorporate racial bias without directing attention to their actions. They are taught to look for the unseen and to notice the unnoticed. The Supreme Court in its precedent setting decision on the case of Batson v....   [tags: Jury Duty Bias Voir Dire Court Law Trial Essays]

Term Papers
2726 words (7.8 pages)

Essay on Judicial Process of Jack Kevorkian

- INTRODUCTION Jack Kevorkian was born on May 26, 1928 in Pontiac, MI. He attended the University of Michigan and graduated from the University of Michigan Medical School with a specialty in pathology in 1952. In 1970, Jack Kevorkian became the chief pathologist at the Saratoga General Hospital in Detroit, Michigan. An advertisement was placed in the Detroit papers in 1987, which described Jack Kevorkian as a “physician consultant” for death counseling. In 1989, Kevorkian invented the Thanatron, which translates from Greek to English as the “Death Machine.” The Thanatron was Kevorkian’s tool that he used in many physician-assisted suicides....   [tags: essays research papers fc]

Free Essays
2924 words (8.4 pages)