Oliver Wendell Holmes Jr. is a man that has contributed majorly thorough his writings to the study of law. The book of the name “Common law” still stands as one of the major references in the study of Common Law. “The path of the law” in fact, is considered to have significantly contributed to the school of American legal realism. Though his work has received major criticism from philosophers that followed his time, they have been one of the major foundations for several legal studies. As one of the Jurist in the United Supreme Court, Holmes is known for his active attempts in moving away from the application of the principles of Natural Law in judicial decisions. He is known to have believed force and power to be above all.
“The path of
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In the former part of this paper I wish to discuss the thoughts Holmes had of law and project my critique on his theory of prediction. The latter half is dedicated to tracking the path of law as Holmes sees it.
Holmes begins by suggesting that law is a tool for prediction of the application of legal sanctions by courts. He states that rights and duties that arise from the law are also merely prophecies that allow individuals to predict the consequences of the breach of such rights and duties. This perspective of law that Holmes proposed played a key role in influencing American legal realism.
He emphasizes greatly on the need to divorce the concept of morality from law. He however does not entirely reject the fact that morality plays a part in shaping laws but states that, to truly understand law as a business, such distinction between law and morality is essential. He believes that individuals act not necessarily because of ethics and morality but simply to avoid sanctions from being imposed. However I believe that if that were true, the state would have a large discretion in the making of laws. The public would blindly choose to follow laws in fear of sanctions and not because they believe the law to be moral. They would never contest a law imposed even if it were contradictory of all moral and ethical beliefs held individually or even by the society
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According to Holmes, in order to master the subject, law must be studied from the perspective of a bad man who is concerned about consequences of his actions rather than the moral grounds behind it. In furthering his argument, Holmes states the example of the law of contracts. According to Holmes, one binds himself to perform the contract due to the prediction that its breach would result in payment of damages. My critique of Holmes’s argument arises again here. In stating that one performs a contract to avoid payment of damages alone, he is neglecting the fact that one might gain more in performance than through breach. Holmes is also assuming secondary obligation to be the only source through which contracts function. This assumption results in disregard of the primary obligations where obligations in a contract are performed for the sake of the contract and not of the fear of
Abadinsky, Howard. Law and Justice: An Introduction to the American Legal System. 6th ed. Upper Saddle River: Prentice Hall, 2008. Print.
The court case of Marbury v. Madison (1803) is credited and widely believed to be the creator of the “unprecedented” concept of Judicial Review. John Marshall, the Supreme Court Justice at the time, is lionized as a pioneer of Constitutional justice, but, in the past, was never really recognized as so. What needs to be clarified is that nothing in history is truly unprecedented, and Marbury v. Madison’s modern glorification is merely a product of years of disagreements on the validity of judicial review, fueled by court cases like Eakin v. Raub; John Marshall was also never really recognized in the past as the creator of judicial review, as shown in the case of Dred Scott v. Sanford.
Hobson, Charles F. The Great Chief Justice, John Marshall And the Rule Of Law. University Press Of Kansas: Wison Garey McWilliams & Lance Banning, 1996.
* The assumption made by the lawyer, and for that matter, by society, that its values and demands are intrinsically a priori valid, are a matter for another interesting research, yet it diverges too much from our point.
(7) H. L., Hart, The Concept of Law, ch. VIII, and D., Lyons, Ethics and the rule of law, Cambridge University Press, 1989, p. 78 ff,
This concludes my summary of lessons gleaned from the course BSL 301 Legal Research, Writing, and Analysis referencing Honigberg, G. "Gilbert Law Summaries: Legal Research, Writing, and Analysis" 10th ed. BarBri Group, 2006.
Mr Justice Wilson, ‘Lectures on Advocacy and Ethics in the Supreme Court’ (1979) 15 Legal Research Foundation Inc.
John Stuart Mill discusses the concept of liberty in many ways. I’d like to focus on his ideas of the harm principle and touch a little on his thoughts about the freedom of action. The harm principle and freedom of action are just two subtopics of Mill’s extensive thoughts on the concept of liberty. Not only do I plan to discuss and explain each of these parts of the conception of liberty, but I also plan to discuss my thoughts and feelings. I have a few disagreements with Mill on the harm principle; they will be stated and explained.
An issue that has remained debatable since the Jackson litigation was what ought to be the ultimate controlling factor in the British constitution: parliamentary sovereignty or the rule of law. This essay sets out to consider the reputedly irreconcilable tension between the two fundamental constitutional principles by analysing the extensive obiter dicta in Jackson and relating it to judicial review which upholds the rule of law. The contention of this essay is that despite the courts' deferential attitude towards the sovereignty of the laws of Parliament, the rule of law may potentially gain dominance and surpass parliamentary sovereignty to become the ultimate controlling factor in the British constitution.
Ronald Dworkin has become one of the most influential legal philosophers over the last century providing a ‘sophisticated alternative to legal positivism’. Dworkin is a non-orthodox natural law theorist, his account of law centres on his theory of adjudication. A key aspect of adjudication is the concept of Law as Integrity. However, some commentators suggest that Dworkin’s ideal does not reflect the reality of judicial interpretation. In this paper I will outline Dworkin’s ‘law as integrity’ and then highlight some of the criticisms that appear to generate doubt over his writings as a convincing model. I will conclude that whilst his main opponents offer some substantial critiques of Dworkin’s theory of ‘law as integrity’, Dworkin does establish a convincing theory that tries to bridge the gap on judicial discretion that other notable theorists, including H.L.A. Hart, fail to achieve.
The concept of law is an important philosophical subject in legal jurisprudence that has provoked debate in previous years, especially between Hart and Dworkin’s . Hart's theory was contained in the Book, the Concept of Law that provided a general and normative description that explained the notion of law. Herbert L.A Hart is famous for his legal philosophy that sought to define the concept of law. He redefined jurisprudence and established a line of inquiry in philosophy regarding the concept of law. Dworkin’s criticisms of Hart’s arguments have a focus on the doctrine of judicial discretion and the separation of morality and the law.
The English legal system is ostensibly embedded on a foundation of a ‘high degree of certainty with adaptability’ based on a steady ‘mode’ of legal reasoning. This rests on four propositions
United Kingdom is a country with a distinctive set of legal system. It is fairly different from other countries having civil law based legal systems. The legal system in the United Kingdom consists of various sources of law, where other civil law based countries rely only on a written set of law. European influences on the English Legal System came much later in near decades. This essay will aim to examine the development of the English Legal System by reviewing applications of various sources of law in the English Legal System furthermore to discuss the recent European influences on the law of England.
Firstly in this report, I will be giving the different definitions of rule of law by different philosophers; secondly, I will be applying the rule of law to the English Legal system and thirdly I will be explaining separation of powers with a focus on the impartial judiciary. Finally, I will be using cases to support every detailed point given.
The relationship between law and morality has been argued over by legal theorists for centuries. The debate is constantly be readdressed with new cases raising important moral and legal questions. This essay will explain the nature of law and morality and how they are linked.