Term Paper on "Rule of Law Legitimate?"

Term Paper 5 pages (2254 words) Sources: 1+

[EXCERPT] . . . .

(Hart, 105) Therefore, this means that the fundamental provisions of a Constitution are really law. (Hart, 111) However, because the assertion that a legal system does exist is cloaked in mystery and complexity, it can be seen that at one stage it may be considered as unborn, at another, as yet unseparated from its mother, and at another, independent, and at another, ready to die. (Hart, 112)

Evidence of the existence of a legal system must be drawn from two divisions of life, one being normal, and the other, where there is no general obedience to law. (Hart, 117,118)

The most important question that arises at this point is whether or not there is a natural law within us. According to Aquinas, there isn't, perhaps because man is primarily governed by the Eternal Law, wherein everything must be orderly. However, since Nature is neither superfluous in her generosity, nor is she miserly, no law can be said to be natural to man. In addition, man generally sees a means to a certain end in everything, and this is not at all a function of nature. Also, it can be said that when a man is free, he dose not come under the law, and he has 'free will', whereby he cannot be subject to natural law. However, all man is indeed aware of good and evil, and since all living things take part in eternal law, they receive the inclinations for good and evil form them, and a rational person would be provident for himself, as well as for others. In the same way, he also has a share of Eternal Reason, and this perhaps may be the very imprint of the 'Divine Light' upon him. (Aquinas, 35)

Maybe, as well, there is ho human law, because, when natural law is but a part of Eternal law, where everything is orderly, natural law would be sufficient for the orderliness of all human affairs. No law can spring forth form human reason, and in the same way, there may be two kinds of law, one, eternal, and one, temporal. (Aquinas, 36) When Divine Wisdom is involved, certain principles may become obvious, but the proper knowledge of each single piece of truth may not be evident. (Aquinas, 37) The law of nature would be the very same for all, but this does not mean that what has been created by human law belongs to natural law as well, and although it is possible to justify all things that may happen on account of natural law, it is not possible for the same to happen with human law. (Aquinas, 39)

Therefore, it can be said that the general principles of natural law cannot be applied to human law, and this gives meaning to the very diversity of positive laws among human beings. (Aquinas, 40) Dworkin in his article entitled 'Jurisprudence', states that in general, whenever lawyers argue or advice clients; they are faced with certain technical problems, or at times non-technical. For example, when the lawyer is faced with the issue of whether or not an issue is 'fair', then it would be a technical problem, and when a lawyer attempts to explain unclear concepts, he is faced with a complex problem. Maybe two lawyers would argue about whether the Supreme Court, in 1954, was just following the established principles, of making a new law. Such recalcitrant and intractable questions are referred to as 'jurisprudential', and most lawyers even disagree on whether to waste time or not in resolving them. (Dworkin, 1)

Until recently, the approach to jurisprudence, in the U.S.A. And in England, was that of professionalism, and most lawyers were of the opinion that such questions were troublesome because they could not be applied to Norman legal techniques, but since lawyers are trained to extract whatever information they can, they were able to analyze facts so that they could glean details from them. (Dworkin, 2) In the U.S.A., several researchers published accounts of the judicial process, stating that judges did not merely apply rules. 'Legal realism' soon established itself, and its various leaders thought that the orthodox theory had in fact gone wrong because it had started to take a doctrinal approach to jurisprudence. (Dworkin, 3) The strong emphasis on facts led to 'sociological jurisprudence', and this became very important to sociologists. (Dworkin, 4) Moral Realists argue that when a man has committed a crime, he must be 'treated' and not 'punished',… READ MORE

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