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Out of Hart, Dworkin and Altman, who provided the best understanding of judicial discretion What implication do their position have for the legitimacy of judic - Essay Example

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In Robert Bolt's play A Man for all Seasons, Sir Thomas More faces a very difficult ethical dilemma: whether or not to give his approval to the plans that King Henry VIII of Britain has to divorce his current wife. While, as king, Henry could have chosen (and actually did choose) to do whatever he wanted, he felt that he needed More's open support on a political level…
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Out of Hart, Dworkin and Altman, who provided the best understanding of judicial discretion What implication do their position have for the legitimacy of judic

Download file to see previous pages... After Roper says he would cut down every law in England that kept him from pursuing and capturing the Devil, More answers:
Oh And when the last law was down, and the Devil turned 'round on you, where would you hide, Roper, the laws all being flat This country is planted thick with laws, from coast to coast, Man's laws, not God's! And if you cut them down, and you're just the man to do it, do you really think you could stand upright in the winds that would blow then Yes, I'd give the Devil benefit of law, for my own safety's sake! (Bolt 46)
In other words, from More's perspective, the protections that the law affords everyone are worth the protections that the law offers the accused, no matter how obvious his or her guilt may seem. More clearly advocates a fairly literal application of the law and would frown on a great deal of legislation from judicial benches.
More, of course, lived four centuries ago. Legal philosophy has changed a great deal since then. One movement that has been particularly influential in the past century has been the advent of legal positivism. This idea asserts a fundamental difference between law and morality. By extension, this idea suggests that there is room for judges to act as social activists, and use rulings to ameliorate the damage that the gaps between the laws as they stand and the ethics of particular situations can wreak. H.L.A. Hart, Ronald Dworkin, and Alfred Altman all have perspectives on the proper role of judicial activism and discretion.
Dworkin and Hart come in on basically opposite sides of the argument. While Dworkin views the law as a system that always provides a correct answer, through his Theory of Adjudication (Gaffrey 22), Hart asserts that laws themselves are "open-textured" and that there is room for judges to use discretion to plug the gaps between legal rules and morals (Bix 52). Altman takes a middle view based on his idea of "truncation," which basically refers to a judge knowing when to apply the law to its most literal extent, and when to abridge its extension (Altman 5). Given the liberal ideals of the modern rule of law in the United Kingdom, it would seem that this middle way provides the most room for compromises in cases where compromises are clearly needed, without permitting judges to become too activist in their rulings.
Hart's concept of legal positivism divides the law into two categories: primary, or duty-imposing, rules, and secondary, or power-imposing rules. Primary rules confer rights or set obligations: criminal law is made up of only primary rules, for example. Secondary rules dictate the ways in which primary rules are made and enforced. An example would be the rules that dictate the makeup of Parliament, and the rules governing the enactment of acts in Parliament (Bix 51).
One of the most crucial elements of Hart's theory is the "open texture theory." Hart uses the term "open texture" to mean that there are some situations in which judges should apply discretion when there is a case that may be said to fall outside existing rule of law. He supports this assertion with three reasons. First, language itself, which comprises laws, contains many loopholes, just by virtue of its very nature. While words in a legal rule may well ...Download file to see next pagesRead More
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