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How important is the relationship between law and justice
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American Legal System
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American Realism is the concept that certain American scientists, lawyers, theories, and educators came to the idea that realism contests the traditional legal entitlement that conventional legal foundations delivered an independent and self-driven system of legal dissertation uncorrupted by the government. Contrasting traditional lawful thought, American legal realism operated forcefully to represent the establishment of law without rejecting or misrepresenting a just morals .there is the prediction, the centrality of the role of the judge, skepticism over rules, fact skepticism, the illusive facts, look at the whole process, measure the results, shaking the dust off, and self-examination. I will go into each of these attitudes and approaches …show more content…
There is already skepticism over rules, so how can facts not be contorted too? There are many instances where high up individuals twist up-court decisions or have an influence over judges and the jury. There will always be individuals who do not follow the rules or do not care for the rules. The fifth notion is the illusive factors. There will always be “those prejudices when they are racial, religious, political or economic may sometimes be surmised by others. There is some hidden, unconscious bias of trial judges and jurors…” (Riddall, pg. 230). A judge is not a robot. They come from certain social upbringing, class, and views on the world. There will be bias and no one can stop it. So, with these illusive factors, one has to look at the whole process. If a lawyer can see step by step how the jury and judge will react to certain statements and pieces of evidence, they have a better chance of a winning case. A lawyer has to take into account every individual's upbringing and background to be fully aware how to persuade. Many lawyers have to shake the dust off of old books and cases to gain evidence and ideas for their case. Not all previously won cases though can still be used as an explanation today. However, lots of hard work and determination have led many to succeed in their field and help others. The final step is self-examination. So many of these contributors to this field, American realism, did not intend to create this “school”. They just wanted to differentiate different ideas and theories. American realism may not be an official school but has caused many to think about the state if our
Golda your example of OJ Simpson’s case is great when looked at from a couple of angles. First, it is an example of an individual that was trialed and found innocent by a group of his peers. Our legal system states that one needs to be proven guilty beyond reasonable doubt. In this case, the jury found issues and doubts within the prosecution’s case and acquitted Mr. Simpson. Public opinion sides with the statement that the outcome of Mr. Simpson’s trial was ridiculous, and that justice was not served. However, the judge in the trial (Mr. Ito) instructed the jury on what reasonable doubt is and how it affected the verdict they were about to make. We can argue that the system let a guilty man get away with a crime. On the other hand, we can
In his book, Kennan undoubtedly speaks from the point of view of a realistic man who speaks of his own judgements regarding the American policies based from his own experience. The author does this without overloading his readers of some heavy academic and theoretical concepts. One of his critiques regarding the construction of policies in the US is the legalistic and moralistic approach which is evidently used until now.
The legal system’s focus on legal guilt over factual guilt sets rules in place that could potentially prove an accused person’s innocence and thus solve the issue of factual guilt. The judicial system is structured in a way that ensures a person’s legal rights are upheld when it comes to criminal law. It is critical to the proceedings that all rules are followed
The theory of realism outlines an explanation of the global political system which can be used to analyse and view international relations, foreign policy and other interactions within the system. The theory revolves around several main tenets – states are the principle actors in the global system, these states compete to maximize their own
In The Concept of Law, H. L. A Hart criticizes John Austin’s command theory of law and argues for a new framework that interprets laws as rules. As a legal positivist, Hart is motivated to separate the descriptive question of what is from the prescriptive question of what law should be. Despite this, he believes we must also consider the normative aspect to law, which is reflected in the obligation we feel to follow it. With the notion of obligation in consideration, Hart proposes a framework that is a more sophisticated and consistent view of how legal systems work. In this paper, I will argue that - despite the overall usefulness of his framework – he fails to properly address how judicial decisions play a role in the changing and challenging
As an International Relations’ theory, realism has a long and complicated history whose roots can be traced back to the writings of the antique philosophers of Greece, Rome, and China. However, political realism increased in usage in the twentieth century after Edward Hellet Carr’s Twenty Years Crisis came to lead the rest of the schools of thought present in the field of International Relations. Soon, others joined Carr’s views: Schuman (1933), Nicolson (1939), Niebuhr (1940), Schwarzenberger (1941), Wight (1946), Morgenthau (1948), Kennan (1951), Butterfield (1953), and Waltz (1969). Realism emphasizes the fact that the states should rely on themselves in order to guarantee their own security in the anarchic international system. The hostile security interests and the changes in the balance of power will lead to conflicts. As for the term, although it is unsure where its origins lay, most scholars have agreed that either E.H. Carr, or Hans Morgenthau might have coined it (????).
Legal positivism is a legal philosophy or thought advocating for the written rules of law to be only the source of law. The implication hereof is that in the interpretation of any text of law recourse should be sought in the wording of that very same law or text to be interpreted. In our view, this is a sound philosophy because it promotes and maintains legal certainty by basing the interpretation of law on known and written rules, rather than some unwritten rules or personal opinion of judges that may be based on some ethical and moral principles. In this regards, the separation of law from morals as maintained by positivist thinking may contribute to the neutrality and objectivity
Realism, in the broadest of definitions, is the faithful representation of reality or verisimilitude. The realist is considered to be the “philosophical extrovert” . Within the scope of American literature, ‘realism’ spans the time period from the Civil War to the turn of the century. Some claim that American realism was the product of a country shaken by war combined with technological advances and increased consciousness of nationhood. Realism, according to Weinberg, “denies the continuum of time as meaningful dimension of experience because time cannot be seen or touched” . In essence, realism was a solution to the problem of the past. It “made a religion out of newness and contemporaneity” . However, some critics of realism have criticized it as having been “exposed as an insidious agent of the capitalistic-imperialistic-bourgeois hegemony” .
The idea of Realism says that a state’s behavior is driven by the desire to survive and become more powerful. Also, Realism emphasizing that foreign policy must be settled on national interest rather than moral and ideological ideas. Believing that the best idea to ensure survival is to have military security in order to maintain power. Which was commonly seen in the
The contemporary theory evolved from a collaboration of Hart’s work in 1961 The Concept of Law and Austin’s command theory, creating a “…more precise and informative explanation of law… and providing a closer analysis of rules” (Tebbit, 2005, p. 49). With that said, the importance of contemporary theory is to solve hard cases and to close a case with a fair verdict. But how is it possible for a Judge to make a decision based on the law in “hard cases” when the law has “furry edges” when applied to certain situations? Austin believed when cases were presented to the court with no clear precedent, the judge then became a “temporary commander” (Tebbit, 2005, p. 50). Hart believed that no matter how well a law is drafted, rules cannot cover every eventuality. Dworkin believed a rule could or could not be applied to a specific case, but a “constellation of principles” and as well as rules together could lead a Judge to make a decision (Tebbit, 2005, p. 54). To me, Dworkin’s constellation of principles and idea of legality, and Hart’s degree of discretion seems realistic when making a verdict for any case, especially hard cases; Dworkin’s ideology explains how the law is being applied while, Hart focuses on what exactly the law is.
Firstly, classical realism emerged out of the destruction of the First World War. Hans Morgenthau popularized the school and laid down its fundamental principles. He believed that human nature is unchanging and based on universal laws cultivate within us a desire to dominate others. From
ABSTRACT: The paper compares the Anglo-American and continental legal systems in parallel with a comparison of the philosophical foundations for each. The defining philosophical distinction between the two legal traditions (viz., the Anglo-American system is predicated on idealism and the continental system on materialism) is shown to influence the way in which criminal justice is handled by the two systems as applied to citizens, and how this influence is carried across to the regulation of business as applied to corporations. The idealistic (possibly theological) worldview inherent in the Anglo-American legal system explains its moral presumptions regarding human freedom, dignity, and responsibility, while the materialist worldview inherent in the continental legal systems explains its amoral assumptions about human motivations and behavior. I suggest that while the Anglo-American legal system may be justified in its moral philosophical presumptions as applied to citizens, the continental legal system, with its amoral assumptions, more accurately reflects corporations than citizens. Understanding how the philosophy behind the two legal systems influences the application of law in modern society can lead to improvements in public policy.
The naïve realism in us creates a haze over our eyes, making us believe that we see the world as it truly is, and that everyone else is biased towards themselves. This causes us to think that we are constantly in the rights and others are completely wrong and/or not educated enough on the facts. The actuality is, is that our beliefs of that we are always right contributes greatly to our delusions of how the world should work, and us not stopping to consider that perhaps we ourselves do not possess all the facts. It is like everyone is wearing a pair of glasses, however, our lens is crystal clear, and everyone else’s are fogged up and cannot perceive the world properly. For example, one day earlier in the year I was arguing with a friend about
Neo-realism, a later discipline of realism agrees on many of these factors, but instead of focusing strictly on human nature, they expand the theory to include the international system. Instead of seeing the system as states existing separately within a sphere of anarchy, neo-realism attempts to examine the force of the international system on the state and the influence of the individuals within a state. This is perhaps the biggest difference between classical realism and neo-realism. Furthermore, classical realism defines the state’s interests by power, as a result of man’s natural condition, neo-realism defines the state’s interests as defined by power and wealth. As noted in Baylis et al., (2008), “according to Waltz, structure
Furthermore, it is human nature for states to pursue power as an end. Morgenthau highlighted the influence of nationalism, ideologies, and imperialism in a variety of forms. Classical realism additionally asserts that the international system is anarchic and that security dilemmas lead to war. Classical realism can thus be deployed to provide both a rationalization for and critique of American power after the war.