Duty of the Court and its Interpretation of Legislature - Coursework Example

Language and the Law Duty of the Court and its Interpretation of Legislature Introduction Jurisprudence is an integral part of the interpretation of courts about the laws made by legislature. In the above case the theories of Hart and Derrida can be used to analyse or discuss the courts’ interpretation of laws. However, according to Ernest Bruncken (2009), in some contexts, the interpretation may lead to mischief and may lead to aversion. Though the interpretation of an unbearable law out of existence can be termed as a fruitful source of confusion, but the lawyers are trained to have great hold upon the public using it. Moreover, even a wicked interpreter is capable of making law a wrong one. Consequently, the unnecessary strain that is being imposed on judicial system is making judiciary to do the work of the legislature. Ernest Bruncken quotes Vandereycken about the three stages in the development of judicial interpretation as the literal state, logical stage and the positive stage. The interpretation of significance finds in logical and positive stages as logical stage considers the will of lawgiver and respect for it. Whereas, the positive stage the law can be seen as the product of economic and social forces working through law giver and finding expression accordingly. Hence, in this case the question about the power and duty of the court to travel outside the law on a voyage and discovery comes to the fore. The metaphor in the above sentence deals with the nature of interpretation that deviates from the original meaning and logic of the law considered. Hence, in the context of court interpreting the law in positive stage, the exigencies of social life will be the sole consideration of the court (Ernest Bruncken, 2009). Hart’s Theory and Positivism Hart’s theory and concept made greater impact on contemporary positivism as he applied the radical insights of the new linguistic philosophy. According to Tebbit Mark (2000), he explained the central problems of jurisprudence with sound theoretical footing and tried to do simplify the complexity of law. As Hart acknowledged the value of Bentham and Austin’s efforts of clarification and tried to expose the weaknesses of classical common law, he tried to establish the power of Courts to go beyond the intentional meaning of the law to interpret according to the social situations. As he expressed reservations about some areas of law as serious obstacles in the path of genuine understanding, he viewed the interpretation of courts about the law as the articulation of pre-existing good. Hart disagreed with Hobbes and Austin about the positive form of command theory and supported the revealing of true explanatory strength. The reason for rejection of command theory by Hart is that it did not reflect the reality of any possible or actual legal system and its explanatory power was limited thus confining the courts to certain points while interpreting the law. In that manner he supported the power and duty of court to interpret the law according to social situations. While stating his concept Hart constructs two effective arguments. First about the essence of law that purports to explain and thus stated that the rules cannot be orders or commands. As he felt that the rules are the ones, which facilitate social transactions, the interpretation of courts plays an important role in applying the law to various social situations thus giving the power to court to go beyond the concept of the rule in law. The second argument is about the distinction between types of legal rules that talks about analysis of social practices. As he pointed out that concept of an accepted rule is missing in Austin’s analysis, Hart supported the sophisticated understanding of the social practice following a rule (Tebbit, Mark (Author), 2000). The important aspect in Hart’s argument is that the rules in the law are open textured. Hence, Judges have to fill the gaps by their discretion. Hence, he supported the interpretation of judges as well as their discretion to go beyond the rules and commands in the law to give judgment according to common good of society or according to social situations. As he divided the laws into two categories, the first type are duty imposing rules and the second type are power imposing rules, the secondary rules go into the roots of primary ones and interpretation can be done. The open texture concept of Hart explains the discretion of judges and courts that is not governed by the rule of law. The above discretion comes to the fore, when the language in the law is indeterminate that necessitates the discretion and interpretation of courts. Hart talks about the meanings of the words in the rules and laws as they are important to understand them and to interpret. When the definitions of the words used in the law are not precise Hart supports the discretion of judges while interpreting the law. As the legislature, which prepared the laws is not god, it is impossible to anticipate future developments, which use the law according to the situation then. Hence, unless a new law is enacted, the existing laws need to be interpreted by judges according to the developments in the society and in the economy. Moreover, even the terms like fairness and reasonableness or justice have general standards of understanding in different situations. If the law did not define the above-mentioned understanding according to different situations, there will be no other option to judges to interpret it, though it amounts to go beyond the general interpretation. As there is no clear rule governing the selection of precedents in common law system, Hart supports the argument that the judges may have to either narrow or widen the rules extracted from the precedents according to the present situation. Though, Dworkin challenges the Hart’s theory of Judges’ discretion about the existing rule that supports that, it depends on legislature to make it as a law. However, Dworkin did not show a substitute to judges’ discretion in the absence of words in the law that suit best to the present developments or situation. However, the term principle is absent in Hart’s theory of positivism and Judges’ discretion as there can be numerous number of standards assumed for a rule or a law. Hence, in the absence of standards and principle for a law, the judges’ interpretation and discretion may not be according to the ethical values inherent in the law. Hence, Hart’s theory can be regarded as best when combined with the principle aspect of Dworkin as it states that one cannot be allowed to be benefited by his/her own wrong doing. As Hart theory states that the judges can use their discretion when there is no applicable rule of law, it can be accepted when there is a basic legal principle involved in their discretion. However, the discretion with principle should not amount to the legislation as it is not the job of judges to make laws. Hence, while interpreting they can go beyond the ambit of the rule, if there is no suitable law or a rule that defines or solves the situation faced by judges. Hence, judges should keep in mind that their discretion should be according to the essential element of the rule of law, which is separation of powers. Hence, in the course of interpretation or discretion, the judges can go as far as possible as long as essential element of separation of powers is not violated. However, the above aspect cannot restrain the judges from settling a dispute in the absence of a suitable law using their discretion as the postponement of the settling of the dispute till new legislation takes place may amount to denial of justice (Jason, 2009). Signature, Event, Context In contrast to Hart, according to Derrida, there is no absolute context to interpret. Derrida explains the above aspect by talking about the meaning of the communication by stating that the communication is basically the transmission of meaning, but still have number of definitions. As a result Derrida argues that the interpretation if allowed may lead to entry of semantic, semiotic and linguistic as well as socio cultural aspects into the judgment or discretion. Hence, Derrida doubts about the prerequisites for the context that allows interpretation or discretion. One important aspect that he talks about to oppose the discretion or interpretation as a duty or power of the judge is the insufficiency of the usual concept of context as it is accepted in numerous fields of investigation. Hence, according to above aspect, the discretional decision in one context may not be suitable in another context. Then the judges cannot support their own decision according to a particular rule in one context to be acceptable in another context. In this context, Derrida talks about law of mechanical economy that has been brought by history of writing that used the convenient abbreviation. As a result he quotes the representation being complicated due to different interpretations and expressions as well as writings. Hence, according to Derrida, the interpretation or discretion should not disturb the fundamental understanding. As the communication developed from signs, painting, writing and to digital mode, the laws also need to be made by the legislature according to the need but a mere interpretation is not enough that may not be sufficient to inculcate or convey the fundamental principle inherent in the laws according to discretion or interpretation. A law according to Derrida is a rule that communicates something to those who are absent, when the law is made. In the above case as representation supplements presence, it undergoes homogenous modification and hence analysis of everything in the interpretation is not possible thus undermining the essence and fundamental principle of law or the rule. Derrida heavily depends on Condillac’s principle of expression, representation, recall, and make present even in the absence of the object for the present perception. Derrida opines that the kind of analysis of written signification neither begins nor ends with Condillac, the analysis is ideological and primarily in order to contrast its notions to concepts of the communication. As the elaboration of law is itself a representation of idea, it should not deviate from the very basic principle of the rule and there should be a system to enact the laws according to the developments instead of leaving it to the interpretation and discretion of judges. Derrida explains the importance of the principle of law by comparing with the written sign that is the basic of communication and execution of law also the same. Hence, he states that the law (writing) cannot be a modification of presence and hence discretion cannot be allowed after a certain extent and the metaphor ‘the power and duty of the judges to go on a voyage are strictly limited’ will be true in case Derrida’s Signature, Event, and Context. The discretion comes from the fact that the writing (law or a rule) is a secret, which is not true. Hence, the discretion will be limited to make the common people understand the basic principle of the law and not according to developments and situations in the case or the society. The absence of a law maker cannot give the power or the duty to the judge to modify the law according to the present situation and that amounts to legislation, which is not a duty of the judges. Hence, according to Derrida, it can be termed as the discretion when exceeds the limit amounts to legislation, which is not a duty of the judges (Jacques Derrida, 1971). Alice Marguerite Crary et al (2000) find that Derrida opined every case is independent from each other and so the interpretation. Hence, the interpretation differs in each case and results in giving different meanings to law, which may be different from that of the one given by the literature. In this context, if one thinks that interpretation is a thing that determines or explains the meaning of a rule, then it is the necessity of thinking about the rule and event. Hence, the meaning derived from the interpretation need to be essential to the meaning of the rule. However, the easy cases which demand certain decision according to rule may not leave room for judicial discretion and in those cases, the positivism or discretion is not necessary as the meaning is directly involved in the case. According to Derrida, judge is a calculating machine and one cannot say that he is just, free and responsible. As a result, the interpretation and discretion of judges need some limits to make their decisions remain in the ambit of law. The inherent meaning of Derrida is that the Judge as interpreter and as a machine has to locate the general region of the problem and should interpret within that space and thus reduces the discretion in the interpretation. Hence, though Derrida’s argument also allows interpretation, due to the location of general region the discretion is limited (Alice Marguerite Crary, Rupert J. Read, 2000). In addition to the above arguments, according to Legrand, Pierre, (2008), language was the bedrock of Derrida’s philosophical project and the totality of the problem in the case is defined accordingly. As no text is completely extricable, the text as well as the rule need to have embeddedness within the discursive formations that can be taken into account while interpreting or using discretion. Hence, according to him, the power or duty of judges going beyond the law need to have certain constraints and a definition of problem region is necessary while using discretion. The inherent aspect in the above argument may be discouraging the people to use the same discretion for different problem using same law. Hence, Derrida’s theory inserts more responsibility in judges while going beyond the law in certain problems that arose in various cases. As a result, Derrida’s argument brings out a protocol for interpretation as well as discretion and prevents the misunderstanding of interpretation for one problem to all the cases the same law. Hence, he argues that foresight mixed with the meaning of law gives an appropriate interpretation for the problem. However, the confining of an interpretation to a single problem depends again on discretion of judges only and hence, unless a law can be made in this regard, the complete implementation of Derrida’s theory is not possible (Legrand, Pierre, 2008) Conclusion In the above discussion of "The duty of the court is to interpret the words that the legislature has used (...) the power and duty of the court to travel outside them on a voyage of discovery are strictly limited”, Hart’s theory of positivism allows discretion of judges to a larger extent than that of the Derrida’s argument. As Hart claims to give a chance to judges to interpret as well as to use discretionary power, he is giving a power to judges to use their discretion regarding a rule. However, in the case of Derrida’s argument, judges need to follow a protocol to define a region of space for a particular problem that arose from a case and should interpret the law only according to that case. Hence, the important aspect in Hart’s theory is to allow the discretion of judges as a power but Derrida makes it a duty to use discretion according to a protocol. Hence, when Hart’s theory talks about the power of going beyond the rule by the judges, Derrida talks about the duty of judges while using discretion. References Ernest Bruncken, 2009, Courts and Legislation. Part 6, chestofbooks.com, Retrieved on 25th April 2009 from http://chestofbooks.com/business/law/Legal-Method/Courts-And-Legislation-Part-6.html Tebbit, Mark (Author). (2000). Philosophy of Law : Introduction, Florence, KY, USA: Routledge. Jason, 2009, Hart’s Theory, Jasononline.com, Retrieved on 25th April 2009 from Jacques Derrida, 1971, Signature, Event, Context, hydra.humanities.uci.edu, Retrieved on 26th April 2009 from http://hydra.humanities.uci.edu/Derrida/sec.html Alice Marguerite Crary, Rupert J. Read, 2000, The new Wittgenstein, United States: Routledge. Legrand, Pierre, 2008, Of Derrida's Law, ssrn.com, Available at SSRN: http://ssrn.com/abstract=1226442 Read More