Term Paper on "Rule of Law Legitimate?"

Term Paper 6 pages (2531 words) Sources: 1+

[EXCERPT] . . . .

These types of questions are being referred to as 'jurisprudential', and the issue or matter of whether it is advisable to waste considerable time on resolving them is debatable. (Dworkin, 1)

There are two types of jurisprudence, one being 'ethical' and the other which is 'analytical'. When compared to English jurisprudence, American jurisprudence is essentially more complicated, and it is dedicated to a large extent on the issue of how courts decide complicated and complex cases. The needs of industrialization, and the need to deal with legal issues made the American courts succeeded in shaping the Constitutional Laws of the country during the nineteenth century, and this perhaps led to the skeptical views that people like Oliver Wendell Holmes and John Chipman Gray had of the entire judicial process, leading them to publish their views in certain legal publications. (Dworkin, 3) This type of skeptical approach, shared by numerous other eminent people, started to grow, and by the 1920's and the 1930's, it had become an intellectual movement that was termed 'legal realism', and its leaders were Jerome Frank, Karl Llewelyn, Wesley Sturges, and Morris and Felix Cohen.

These people were of the opinion that the orthodox theory had in fact become wrong because it had started to take a 'doctrinal approach' to jurisprudence, leading to a lack of a scientific approach to the problem. Thereafter, realism became the mainstay of the American legal system, and the importance of regarding law as an instrument for moving the society towards certain specific goals was recognized by scholars like Myres Mcdougal, Henry Hart, and Albert Sachs. Thereafter, there arose an important question, which was whether a judge always followed the rules, or could he make up new rules as and when applicable? This is even today a moot point, and lawyers have been arguing this for decades, because of the knowledge that a judge has tremendous power, and if he uses this power to justify something that cannot be done, then it may not be safe. Lawyers started to ask; how can a judge best reach a decision so that the goals of the legal process are met? (Dworkin, 4-5)

One may argue that the law would be economically more efficient if a judge were to take the economic considerations of his decision into account, but that he must do it with jurisprudence. In criminal law, the issue of jurisprudence deals with the issue of whether a man can be excused form liability on account of his mental instability, since the law often grants an excuse for such people, because the law is not aimed at revenge, but on attempting to prevent the criminal form perpetrating any further harm on innocent persons. (Dworkin, 6-7) Professor HLA Hart in his book entitled 'Punishment and Responsibility' argues that it is wrong to think that law has certain overriding goals, in the sense that every aspect of the law must pertain to these goals. Therefore, criminal law, although it aims at preventing crime, must also pursue those principles that may eventually limit the efficiency needed in reaching them. Perhaps the conventional attitudes towards blame and punishment must change, as is relevant today. (Dworkin, 8)

Is there a 'Natural Law' within us? Many people feel that there isn't, and this is because man in general is governed by the 'Eternal Law' and in reality, there is no natural law known to man. In addition, irrational creatures may act for a specific end, but man can't do the same thing. Man also has a 'free will', wherein he is not bound by laws, and the freer he is, the lesser he is bound by law. Therefore, it can be stated that law within a man can exist in two ways, one, as some part of him that rules and measures, another, a part that rules and measures him. (Aquinas, 40) Therefore, since all things take part in an eternal law, so does man. Is there, then, a 'human law'? It seems that there isn't. Since natural law is sufficient, there is no need for human law, and since human reason is not a measure of things, there cannot be a human law.

Therefore, does this mean that every human law has been derived form natural law? No. Positive law is in contrast with natural law, and it is said that the legal meaning of 'just' can encompass indifference too. (Aquinas, 1) In the 'Grand Inquisitor', where the action has taken place in the sixteenth century, the time of miracles and mystery, the God in Heaven had come down to Earth, and had started to heal the many sick and disabled who had flocked to him. (Chapter 5, The Grand Inquisitor, 248-249) When he raises a child from her coffin, he is arrested, and the Grand Inquisitor comes to visit Him in jail. (Chapter 5, The Grand Inquisitor, 249) He asks Him, "Is it You?" And admonishes Him for having come there to interfere and get in the way. He also states that he has wasted his entire life in committing acts of love for mankind, and for proving His love to man. (Chapter 5, The Grand Inquisitor, 250)

He goes on to talk about Masons, and that Catholics do hate the Masons a lot. The reason for this is that they may have seen them as competitors, and as people who were capable of breaking up one idea. In other words, where there should have been one flock and one shepherd, there are now several. To all these accusations, however, the prisoner of the Grand Inquisitor remained silent, and calm and unmoving. He then moved forward, and planted a kiss on the ninety-year-old man's lips, and this proved to be the entire answer to all his queries and all his accusations. The old man then opens the prison doors and says," Go, and do not come again." The Prisoner then walks away, slowly. (Chapter 5, The Grand Inquisitor, p. 262)

References

Chapter 5, The Grand Inquisitor. pp: 245-264

Dworkin. Jurisprudence. pp: 1-13

Holmes, Oliver Wendell. The Path of the Law. pp: 1-7

Corwin, Edward. C. From the… READ MORE

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