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Law Discussion: Jurisprudence - Essay Example

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The task of lawyers and judges is to apply positive law. They need not concern themselves with the question of whether that law is just or unjust." Discuss. Legal positivist theorists take a purely clinical or scientific view of the law and its functions…
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Download file to see previous pages In this regard, the task of lawyers and judges is to apply positive law. As a result, they do not concern themselves with questions of whether that law is just or unjust. From the natural law perspective, laws are intended to enforce moral codes.2 Thus if, the lawyers and judges are required to apply and interpret natural law, it would be up to them to determine that which is just or unjust. The main question is therefore whether or not lawyers and judges are required to apply and interpret positive or natural law. Positive law is perceived as the antithesis of natural law which in turn concerns itself with moral, religious and political ideologies.3 Therefore in the application of natural law, judges and lawyers would certainly occupy themselves with that which is just and unjust. Theorists have long debated what law is and what its functions are. For natural law theorists, laws reflect moral codes and social consensus as to that which is just and unjust. For positive law theorists, law creates and sustains social order by establishing legally binding rules governing social interactions and for the resolution of disputes.4 Certainly lawyers represent clients who have civil disputes, or clients who are charged with criminal offences and they argue in favour of their clients or the state. In reality, these arguments turn on the letter of the law and do not involve arguments about that which is just or unjust. ...
that judges and lawyers are charged with the responsibility of applying and interpreting the positive law and thus they are not concerned with questions of that which is just or unjust. Moore argued that positive law is the guiding principle in the interpretation and application of law as it directs courts toward a uniform approach to law.5 In this regard, a positive law approach to law is necessary for ensuring certainty and consistency in the application of law. According to Moore, if natural law theories were used to interpret the law, it would amount to an “ad hoc” system of interpretation where judge made law would be entirely inconsistent and incapable of facilitating precedents. Each judge would establish his own laws with a high degree of uncertainty and unpredictability with respect to outcomes of civil disputes and criminal trials.6 George however, justifies the application of natural law and thus argues for outcomes that are representative of that which is just and not unjust. In this regard, George defines natural law theories as: ...reflective critical accounts of the constitutive aspects of the well-being and fulfilment of human persons and the communities they form.7 Natural theories thus select the primary elements that facilitate “human flourishing” and are thus “prescriptive in our thinking about what to do and refrain from doing (our practical reason”. 8 Taken together, the prescriptive and practical reasoning employed by mankind identifies that which is right and moral and directs man as to what he should or should not do.9 George goes on to state, in identifying principles of morality, natural law include: A respect for rights people possess simply by virtue of their humanity – rights which, as a matter of justice, others are bound to ...Download file to see next pagesRead More
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