Analytical Philosophy : The Law Of The Land As It 's Exists Today

Legal research is not only about discovering how the law applies, it is also about determining how strong case is. Using legal research we are analyzing strength and weaknesses of client’s case, and using counteranalysis we determine how opponent can use weaknesses against us. In this paper we will establish why counteranalysis is important and why do we use it, when we use it and where we can apply it.

The proposition by Austin to reduce various types of law into a single form, as command of the Sovereign backed with sanctions had invited much criticism. One of the flaws in his proposition is that not every law is coercive in the way that it is backed with sanction. To view law as command backed by threats of sanction is to overlook a significant part of the legal system.

Both statutory interpretation and the Human Rights Act are a doctrine of precedent by which law is changed and justice is served. The doctrine of precedent is an essential principle of English legal system, which is a form of reasoning, interpreting and decision making formed by case law. It suggests that precedents not only have persuasive authority but must also be shadowed when similar situations arise. Any rule or principle declared by a higher court must be followed in future cases. In short the courts and tribunals are bound within prearranged restrictions by prior decisions of other superior courts. All the judges are also obliged to follow the set-up precedents established by prior decisions which is called Stare decisis. Making decisions according to precedent helps achieve two objectives. Initially it aids to maintain a system of stable laws which gives predictability to the law and affords a degree of safety for individual rights. Moreover, it ensures that the law progresses only in accordance with the developing perceptions of the community. Therefore, it more accurately mirrors the morals and prospects of the community that we live in.

It is often believed that the relationship between certainty and flexibility in judicial precedent has struck a fine line between being necessary and being precarious. The problem is that these two concepts of judicial precedent are seen as working against each other and not in tandem. There is proof, however, that as contrasting as they are on the surface they are actually working together to achieve one common goal.

Citizens develop this law to satisfy their wants and fears as individuals in the society as citizens live by their common interest but this sense of fear as holds the society in place together. Municipals law is about formulation, developing tools that have strength in numbers, establishes that all of us work together. It is then defined how parts obey the whole, so the whole can be possible. Without a superior authoritative, we fall into isolation because we need the supreme who govern us of ‘what is right and forbid what is wrong’ or Superior to the inferior, meaning, the whole to the part or state to the individual, which gives respect of their existence as citizens and the state not about citizen’s being a creature of God.

Though the lecture ‘Path of Law’ has been subject to criticisms, yet even after a century it has both a note of triumph.

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.

All three of these cases, if mechanical jurisprudence were to have been applied, would have been dealt with in the same way. This presence of ‘open texture’ makes it difficult to believe that the judiciary applies its trade in systematic and a mechanistic way, when the law is so general and vague. Open texture and our relative indeterminacy of aim when legislating leaves room for judicial discretion and breadth in the law.

This essay will examine the doctrine of Judicial precedent that helps form the English Legal System. It will illustrate various views that have been raised by Judges and relating cases to the use of ‘Stare decisis’ when creating precedents. In addition it will discuss how the developments in the powers of the courts now also allow them to depart from these precedents to an extent.

Sociologists have many perspectives when it comes to the examination of our laws. Three out of many theories of lawmaking processes are the Rationalistic model, Functionalistic view, and Conflict perspective. Rationalistic models view laws as a rational way of increasing protection for members of society from crimes which are “socially injurious” (Vago 2012). Functionalist view look at where the ideas behind the laws come from and describes laws as “re-institutionalized customs”, where lawmaking is a reiteration of customs (Vago 2012). Conflict perspective describe laws as value the opinions of the elite, instill unequal access to economic goods which upkeep the social economical groups, basically keeps the elite on top (Vago 2012). The three theories are all similar but different at the same time. In my opinion, conflict theories captures the reality of law making process.

Classicism is associated with the works of Cesare Beccaria (1738–1794), the father of the classical school of criminology and Jeremy Bentham (1748-1832) (Walklate, 2007). Both reformers of the classical school were demanding for more effective, rational and fixed system of justice. Brown, Esbensen and Geis (2012) highlights that, as classicists intended to reform the system and administration of justice, one of the key concepts was Beccaria’s doctrine of Egalitarianism. This refers to equality before the law, where offenders must first be convicted by the court of law to be subjected to punishment (White and Haines, 2004). As all individuals are equal before the law, this led to the rejection of individualised punishment, in which to eliminate judicial discretion; there cannot be individualised punishments (Mantle, Fox and Dhami, 2005).

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.

Hart’s critique of Austin boils down to determining the normativity of law (the reason why we should

In this paper, I will propose that it is better to look at whether a law is legally valid or not through the perspective of natural law theory as opposed to positivist theory. My argument consists mostly of the language of “improvement” which can only exist based on the theory of natural law which states that law is something which has an objective truth behind it. Only when there is an objective mark to hit can there be hits and misses and I believe that positivism disregards the possibility of hits and misses entirely. So, my argument is that it makes more sense to consider legal validity of a law from the perspective of natural law rather than positive law because it includes not only the previously set up legal system when considering validity, but it also considers the general idea of some kind of morality as well. A sub argument is that the starting legal system must have had some basis by which to have been created and accepted which must be some form or notion of morality.

And so today, it is needed to rely on socio-legal research for law reform, which serve the various purposes such as it suggests a reform in the existing law, socio-legal research, collect, search and make available the legal principle which are useful for society, it suggests a set of rules where no rules exist at all.