American Realist Movement

To explore his question Rosenberg looks into different court cases in which believers of the dynamic court view think had the most impact on

America has seemed to always have contentious relations with the rest of the world in concerning their reaction to international affairs and an overinflated sense of nationalism. With the terrorist attack of 9/11, not many seem to mention the attacks that happened before that signaled the hate for America. The bombing of the World Trade Center in 1993 and the attack of the USS Cole highlighted events in which it brought to light the planned attacks against United States. Some may say that the Americans should have expected this reaction as there were events that happened before that signaled a rise in anti-American idealism.

The use of pragmatism has become more popular in courts today because it can conform to the many changes

Summative Assessment Unit 2-Idealism and Influence In the late 1800’s through the early 1900’s, America’s identity was rapidly shifting as each new era came along. At the end of the each era, there were problems that were needed to be fixed. As Woodrow Wilson stated in What is Progress?, “The laws of this country have not kept up with the change of economic circumstances in this country; they have not kept up to the political circumstances.”

By the late eighteenth century, the Enlightenment, or the Age of Reason as it was called had begun to rapidly spread across Europe. People began believing in the ideals of popular government, the centrality of economics to politics, secularism, and progress. This cultural movement was sparked by intellectuals and commonwealth thinkers such as the influential writer John Locke and the famous scientist Isaac Newton, both who emphasized the fact that man, by the use of reason, would be able to solve all of his problems-whether it be problems with the government, morals or the society. However, these ideals weren’t just limited to the European nations where they had first begun. On the other side of the world, off in the United States,

Soccer teams have goals that they want to reach before the end of the season. Three concepts each team considers are what skills the team needs, what skills the team has that sets them apart from others, and how will it convey, to onlookers, that it is a strong competitor. Similarly, The American Dream is shown through literature before the rationalist era in three ways. Non-fiction from the Pre-colonial and Colonial eras present the Dream in three ways. One element of the American Dream is seeing America as the Garden of Eden. Pre-rationalists’ writings contain a theme of individuality. Another component that the first American literature has is a hope for the future. Three aspects formulate the American Dream that is present in pre-rationalist

The biggest difference between the writings of Austin and Hart might be that the former while setting the framework for a plausible theory, fails to elaborate on its most basic premises. Hart expanded on legal positivism by enhancing the theory suggested by Austin and making it more credible, all while debunking natural law theory. One example is the manner in which Austin argues that the concept of law is subject to the command of a higher authority backed by threats. Although this is a way in which law can be presented, it is also a simplistic definition. Hart argues that although Austin’s definition of the law might be applicable to criminal law, it fails to justify other variants of legal process such as contracts or marriage licenses. He argues that “Such laws do not impose duties or obli­gations. Instead, they provide individuals with facilities for realizing their wishes, by conferring legal powers upon them to create, by certain specified procedures and subject to certain (p. 27)” It is difficult to associate laws such as the ones concerning marriage to the idea of a command backed by threat. The differentiation between laws that grant liberties when compared to those that might take them away is something that is not taken into account by Austin or explored in depth by natural law theorists such as Aquinas.

Hart goes on to write of the importance of being able to settle cases in the courts rather than legislating in advance. He refers to Von JHerring’s ‘heaven of legal concepts’, Hart explains this concept “this is reached when a general term is given the same meaning not only in every application of a single rule, but whenever it appears in the legal system.” This would appear to be the polar opposite of ‘open texture’ and would be prevalent in a legal system of mechanical jurisprudence. He explains that this would allow for a greater measure of certainty and predictability but at the expense of being unable to exclude cases which we may wish to exclude. “The rigidity of our classifications will thus war with our aims in having or maintaining the rule.” Thus the concept of mechanical jurisprudence would hinder the courts ability to take into account things such as equity and the pursuit of social aims, in the pursuit of a clear and rigid

Hart promotes the need for a clear distinction between law and morality on two levels. Firstly the Social and hermeneutic level in regards to both law and morality sharing vocabulary in both structure and function- showing that in many societies legal rules will match their moral rules. Second a logic and hypothetical level – Hart believes in the possibility of a legal system existing without the influence of morality as there are cases were legal systems do not match the moral grounds of society.( see Austins command theory and the idea of one sovereign ruling all) (SOURCE)

The legal-formalist belief in the capacity of legal rules to determine the outcomes to legal disputes without having recourse to the judge’s political beliefs or sense of fairness has been severely criticised by, amongst others, legal realists and critical legal studies scholars. This assignment will firstly address what legal formalism entails, following which the criticisms of legal formalism will be discussed and lastly whether legal formalism can impede the transformative ideas of the Constitution. All of the above will be analysed to determine the role of legal formalism today.

Arguably one of the most influential legal theorists of the 20th century, Ronald Dworkin’s dealings with law’s interpretation and integrity has lead to inevitable contradictions with that of positivist ideology, with his work essentially revitalising a method of thinking that had long been considered dead and buried. Perhaps most notoriously, Dworkin combated the positivist theory of his former teacher and predecessor as Professor of Jurisprudence at Oxford University, H.L.A. Hart. When comparing the two, it is apparent that Dworkin and Hart disagree on a plethora of issues, however there exist several

The expectation from our judges that they will always act objectively in making their decisions is correct but only to a certain extent. By using the theories of interpretation and judicial decision-making of both Dworkin and American Legal Realism, it is evident that a balancing act occurs between objective judgments and interpretation and subjective judgments and interpretation. Often, subjective judgments are the most dominant to a large extent. One must look at the ideas of Dworkin in terms of considering that judgments have aspects of both objectivity and subjectivity. One must also look at the ideas of American Legal Realism where subjectivity plays a gigantic role in judgments leaving objectivity with little or no influence

This article discusses the conceptions of legal normativity, both moral and “strictly legal” conceptions. According to Spaak, regarding the normative force of legal justification, legal positivists can still embrace the moral idea and not be in conflict with their generally held belief in the “strictly legal” concept of law. In Torben Spaak’s opinion, there is a reason to desire legal positivism; he explains this through introducing the concept of jurisprudence. When discussing the nature of law, Spaak states, “that while the moral conception is what is likely favored on a smaller scale, the strictly legal conception is more appealing because it is broader,” (478). Spaak is arguing, his belief that “validity-based explanations come nearer to the truth,”(483) rather than belief-based explanations. He concludes that we are to prefer legal positivism over natural law theory. “That is why in this article I have been concerned with the law itself rather than our views about it.”(483)

Realism believes that the state is the main actor of the most important in determining the direction of a country. This means there is no term mentioned as an International Organization but merely the State. Realism also believes the State is deciding on the future of the people. In connection with it, the state is certainly confident that whatever actions are correct and appropriate

Frederick Schauer’s paper, Was Austin Right After All? On the Role of Sanctions in a Theory of Law, has two central claims. First, the fact that law is primarily coercive (with the use of sanctions to ensure compliance) has been vastly overlooked in the wake of H.L.A Hart’s critique of John Austin’s work on legal positivism. Second, those who aim to study the philosophical nature of law would be better to examine what makes law truly important and distinctive rather than the necessary and mandatory features of law. In this paper, I will begin by describing Austin’s account of the nature of law. Then, I will explore Hart’s criticisms of Austin’s account that Schauer objects to before delving into Schauer’s argument. To conclude, I will