Dworkin And Hartin Theory Of Law

ANNECDOTE. The majority of the High Court in Clark v Marcourt, awarded damages of approximately A$1.2 million to the appellant, as the respondent was found guilty of breaching various warranties of the deed to purchase various property from a fertility centre, putting the appellant at a significantly better financial position than she would have been in had the breach not occurred. Prima facie, Clark seems to suggest undermining the compensatory principle in contract. ## This essay will analyse the decision in Clark through the doctrinal legal research method, using “normative” research. The aim of this research method is to answer the question of “what is the law” via logical reasoning and analysis of appropriate legal rules, and whether it applies to a particular factual situation.

In the case of R v Clarke, it seems that the harsh approach was the right stance to take to prevent future offenders appealing with similar cases. Taking a preventative stance in interpretation can be linked to using the harm principle as a form of criminalisation. Professor Hamish Stewart identifies the ‘harm principle’ as appropriate criminalization to prevent harm to others, conduct must show harm before it can be criminalised. It can easily be argued that by focusing on the preventative component that can be identified in the reasoning of R v Clarke through the He Kaw Teh presumptions that the High Court was taking a harm principle approach in an attempt to prevent future offences of a similar nature. This stance can easily be criticized in relation to legal moralism with some scholars making claims of overcriminalization creating ‘world in which the law on the books makes everyone a felon, and in which prosecutors and police both define the law on the street and decide who has violated it’.

while at the same time not talk over the reader’s head or bore them to death with legal writing. Mr. Forsythe has collected original research that has exposed new pieces of evidences about important problems dealing with the legal reasoning choices and the pieces of evidences mentioned in the people’s majority opinions.

Oliver Wendell Holmes, Jr. once stated, “The life of the law has not been logic; it has been experience” (Holmes). In making this comment, Mr. Holmes an American jurist who served as an Associate Justice of the Supreme Court believed that logic should not be the only particular way of understanding a system of rules, but by the influence of one’s knowledge and legal skepticism toward the law. Similarly, proponent’s of legal realism, which is a naturalistic approach to law that focuses on predicting what judges actually do in deciding cases felt the same way as Oliver. On the other hand, supporters of formalism insisted that the law and legal reasoning should determine all adjudications based on objective facts, unambiguous rules, and logic.

  In legal theory, there is a great debate over whether or not law should be used to enforce morality.  The sides of the debate can be presented as a continuum.  At one end, there is the libertarian view, which holds that morality is an individual belief and that the state should not interfere in the affairs of the individual.  According to this view, a democracy cannot limit or enforce morality.   At the other end, there is the communitarian position, which justifies the community as a whole deciding what moral values are, and hence justifies using the law to enforce community values.  For libertarians, judges should play a prominent role in limiting the state, while for communitarians, judges should

This paper will demonstrate how Hart’s account of the relationship between law and morality shows an understanding of how they both work together yet can also work as separate entities. It will take a specific look into the internal point of view to aid the understanding of why

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

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.

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.

To fully understand the impact of Williams v Roffey Bros & Nicholls Ltd [1989] on the doctrine of consideration, its is important to examine the doctrine more closely. Traditionally, modern English law has largely abandoned the benefit/detriment analysis and prefers the definition provided by Sir Federick Pollock that “consideration may be defined as an act of forbearance of one party, or the promise thereof, being the price for which the promise of the others is

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 is compiled to review and apply Ronald Dworkin (Dworkin) theory and how his theory was incorporated to assist in constructing laws. In light of Dworkin’s theory, significant areas such as moral principles, legal principles, rights and rules will be explore to understand the influence that these attributes had, in essence of creating laws.

Sanctions are only appealed to in the event that there is a breach. It therefore follows that the opinion of Hart is that various form of law cannot be explained in a single expression as orders backed with threats of sanction. Thus, in contradiction with Austin’s viewpoint, Hart formulated a dual system which contains two types of rules, primary rules (duty-imposing) and secondary rules (power-conferring). Primary rules are generally duty-imposing, which embodies non-optional rules of obligation. It often concerned with standard of behavior as requirement to do or to abstain from performing an act. On the other hand, secondary rules are ancillary to primary rules the former conferring right to introduce, to vary the primary rules and to determine the mode in which their violation could be determined (judicial process). Such secondary rules are rather regulatory or facilitative than coercive in nature. In short, Austin’s catch all theory of seeing law as command back with sanction leave no room for right, privileges given to subject of Sovereignty which does not constitute non optional

As a part of this relationship individuals gave up some of their liberties in the interest of the common good, with the purpose of the law being to ensure that these common interests were met. For Beccaria, this meant that the law should be limited and written down so that people could make decisions on how to behave. More importantly, punishment was to fit the crime not the individual and was to be certain and swift (Williams & McShane, 2010). Offenders were to be seen as reasonable people with the same capacity for resisting offending behavior as non-offenders. The guiding principle of the criminal justice process was the presumption of innocence; and in this general framework punishment was to be seen as a deterrent to criminal behavior. The central concern of the law and the criminal justice process was therefore the prevention of crime through this deterrent function.

This paper aims to present Dicey’s formulation of Rule of law; its fallacies ; its applicability in modern times; and Rule of law & The Tinkerbell Effect as analysed by Cameron Stewart.