Discuss The Arguments Against The Agency Model

The role of the Judicial Branch of the United States has been the most dynamic throughout the Nation’s history. By adopting the power of judicial review in Marbury v. Madison in 1803, the Supreme Court established its position as being arguably the most powerful branch of Federal Government. However, this also made the Judiciary’s role the most controversial. Should the Court be required to interpret the constitution strictly through the language it contains? Does the Court have the right to overturn morals legislation? Through analyzing court cases like Lawrence v. Texas, one can gain insight on the role of the Supreme Court and how it fits within the confines of the United States Government.

The structure and agency debate is a common one in the field of sociology and different theorists come up with different ways of accounting for the actions of social actors. This essay takes the position that structuration solves the problem of this much contested debate. Initially key concepts and elements of structuration will be pointed out .These elements include structure, agency, social systems and power amongst many others. Subsequently, there will be engagement of a discussion of different schools of thought and finally it will be demonstrated how structuration prevails over the structure-agency debate.

Statutory interpretation is the legal process whereby a judge applies a statute to a case and must give meaning to the words in the statute in order to decide what they mean and how it should be applied to a particular case. When interpreting statutes, the judges’ role is to put into effect the Parliaments wishes. Conflicts may arise when deciding if the intention of Parliament can be found in the words of the statute itself or whether judges should acquire into the purpose of the Act then interpret the words themselves. In order to interpret these

In the dissenting judgment made by Callinan J in the landmark New South Wales v Commonwealth (“Workchoices’ Case”), a strong criticism was mounted against constitutional interpretation methods employed in the judicial forum. Explicitly, this conjecture was focused at Isaacs J’s judgement in Amalgamated Society of Engineers v Adelaide Steamship Co Ltd (“Engineers’ Case”), where a textualism approach to constitutional interpretation was adopted. Callinan J expressed the Engineers’ Case as “less than satisfactory”, using “detached language” to discredit its literal methodology of interpreting the constitution.

According to Robertson’s article ‘There is also a potential loss of the accumulated value of the precedents that have been established — a loss of history. Because law has value as information that can inform decision-making about future actions, anything that changes the law can potentially destroy value’. This can definitely be threatening to not only the judicial courts, but to the very basis that established well known fundamentals of law, with that being said, contracts are modernising and so must the legal structure in order for citizens to be better educated and protected.

text, in this case; the constitution. During the Coy v. Iowa court case, he argued that the court

The global market has shown exemplary contribution to the growth of the world's development until recently where financial crisis have been bombarding most economies. As a result, the cost of livelihood had been unaffordable to many who live below the dollar. The monetary crisis has led to the lowering of many currencies against the dollar, hence advancing the economy crisis to most worldwide nations. This turn of events has been attributed to the lack of exercise of business and management ethics in many multinational companies, firms and investments. Financial scandals have been the order of the past twenty years leading to the sweep over of the flourishing global market. The scandals, especially in larger companies and multinational, are spurred by inter and intra-conflicts in their organizational structures.

The court case of Marbury v. Madison (1803) is credited and widely believed to be the creator of the “unprecedented” concept of Judicial Review. John Marshall, the Supreme Court Justice at the time, is lionized as a pioneer of Constitutional justice, but, in the past, was never really recognized as so. What needs to be clarified is that nothing in history is truly unprecedented, and Marbury v. Madison’s modern glorification is merely a product of years of disagreements on the validity of judicial review, fueled by court cases like Eakin v. Raub; John Marshall was also never really recognized in the past as the creator of judicial review, as shown in the case of Dred Scott v. Sanford.

Scalia argues that the Constitution should not be interpreted too strictly or too leniently, but reasonably. Scalia argues that being a textualist is essentially interpreting the Constitution for what it says, not what they think it was trying to say. Scalia believes that interpreting the Constitution for what the framers meant it to say. However, he also believed that being a good textualist required not being too literal. If someone simply takes everything the Constitution says as gospel with no form of interpretation at all then it would constrict progress. The world today is extremely different compared to the world that the framers lived in when they wrote the Constitution. Which is why the sweet spot of textualism has to be found, not too literal and not too lenient either. Scalia also brings forth a counter to the argument against textualism, the one which he claims to be the most mindless, and that is that textualism is formalistic. Scalia says that of course it is formalistic because law revolves around formalism. Formalism is what makes a government a government of laws and not of men, says Scalia. Textualism is what Scalia based his interpretation of the Constitution and statutes on and this is quite evident in many of his famous opinions

The relationship between structure and agency is a key discussion point in sociology. The concept was brought to life by the sociologist Georg Simmel, but has been discussed by many other famous theorists, such as Emile Durkheim and Max Weber. The partnership between structure and agency are crucial to the development of society, and the process of individualization.

Some judges in their obiter dicta have declared their inclination to disregard the Parliament’s legislative objectives, and therefore limit parliamentary sovereignty if the rule of law is vulnerable or if the circumstances demand “a principle established on a different hypothesis of constitutionalism” . They have also suggested that, while the British Constitution is dominated by parliamentary sovereignty, “The rule of law enforced by the courts is the ultimate controlling factor on which our constitution is based” . This represents a possibility of stretching the dominance of the rule of law in constitutional law so that it becomes more powerful than parliamentary sovereignty in the British Constitution .

I agree with Dworkin on this because this idea of subjective decision-making and interpretation is evident in the American Legal Realism theory where rules (or law) are seen as insufficient to cover all different types of cases. Even though the theory of American Legal Realism believes in the above idea, it still believes that some laws do, in fact, cover certain cases and scenarios which allows for the direct application of the law and thus an objective approach to judicial decision-making and interpretation. Through this, we see that both Dworkin and American Legal Realism identify the balancing act between objective and subjective judicial decision-making and interpretation. Yet, both the theories of American Legal Realism and Dworkin strongly affirm the idea of a subjective aspect always, or often, coming into play when judges take part in deciding cases and interpretation.

Justice William J. Brennan, Jr. said it the best in his speech to the Text & Teaching Symposium, "We current Justices read the Constitution in the only way that we can: as Twentieth Century Americans." Justice Brennan also called the Constitution a fundamentally public text and called for its use to resolve public issues. If that is true, then the document must be interpreted from today's perspective - Judicial Activism. However, using only that approach would be saying that the work of the original framers was mute. This document is over two hundred years old and still very relevant to today's society. In my opinion, the court needs to find a fine line between activism and restraint or intentionalism

Before Pierre Bourdieu and the first generation of practice theorists structure and agency where assessed as two different forces that spurred culture. Structuralists like Lévi- Straus asserted that the structure of society and the structure of human cognition followed a rational scientific manner. The mind functioned by recognizing structures and patterns within society. It was heavily situated within the structure of language and the patterns within it such as grammatical rules and the ability to break down the code, when language is properly used, to communicate.

In Li CJ’s judgment in A Solicitor v Law Society of Hong Kong [2008] 2 HKC 1, he commented in paragraph 9 that the “rigid and inflexible adherence by this Court to the previous precedents may unduly inhibit the proper development of the law and may cause injustice in individual cases. The great strength of the common law lies in its capacity to develop to meet the changing needs and circumstances of the society in which it functions.” In this essay, this statement would be discussed with reference to the role of the courts and their relationship to the legislature.