The Role Of Legal Rules On Judicial Decision Making

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

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.

Furthermore, in Standard Oil Co., the Supreme Court stated that “The term "monopoly,"… as used in the Sherman Act was intended to cover such monopolies or attempts to monopolize as were known to exist in this country; those which were defined as illegal at common law by the States, when applied to intrastate commerce.” The Supreme Court went on to further state that “the principles of the common law applied to interstate as well as to intrastate commerce.”

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 the courts of the United States there are three different models of judicial decision making that the Supreme Court uses. Included are the legal model, in which the decisions are based solely on the provided facts on the case. (Mitchel) It can also choose to let previous case hearings and decisions influence the decision for the case at hand. An example would be Reno v. ACLU where the court ruled that the anti-obscenity law was to broadly written that it violated the first amendment right. (Mitchel) Another methodology used is the attitudinal model, where the justices can make any decision they wish without fear of losing their job due to their life term in the position. (Mitchel) A way of viewing this would be imagining a bench with a mixture of conservative and liberal justices, the way the judges interpret the constitution is based on their own ideologies, meaning that the conservative justice will interpret the constitution in a conservative way, and vice versa for the liberal justices. (Mitchel) An example being in the 2000 election, in which the fiasco of Bush’s victory in Florida ended up having to be hand tallied, the Supreme Court intervened and due to the five conservative justices ruling against four liberal justices, the court ruled that the hand tally should cease and that Bush should be elected President. (Mitchel) The final method of explanation is the strategic model, which states that justices make decisions based on they think their peers will vote, and

www.iep.utm.edu/legalpos/ [April 17 2001][accessed 4th November 2012] Plato.standford.edu/entries/legal-positivism/ [2003][accessed 4th November 2012] 6 Joseph Raz The Authority Of Law: Essays On Law And Morality(1979)p. 47

The American people have high expectations for the government, especially our court system. The courts are expected to solve disputes through enforcing laws set forth by our legislators, and to do so without bias. Typically, the courts fulfill their purpose in this way, but the task becomes much harder when there is no precedent, or when a changing culture causes backlash to precedent. Furthermore, a vague law or ideological question may also make an orderly dispute resolution a more difficult task than the courts were designed to handle. As the constrained court view would suggest, these are hurdles the courts must overcome in order to solve disputes and keep the integrity of the court system. According to this view, judges don’t

Each of these philosophies has engendered rich schools of thought and many tomes have been devoted to defining each position, but we can distill working definitions from their governing hermeneutic principles. Textualism (often called strict constructivism) calls for an interpretation and application of the law guided by taking the words of a source document literally with strict adherence to etymology and historical precedent.1 Legal pragmatism, in contrast, adopts a hermeneutics stressing ‘‘(1) the importance of context; (2) the lack of foundations; (3) the instrumental nature of law; and (4) the unavoidable presence of alternate perspectives.’’2 In the Hamdi case, Justice O’Connor’s pragmatism battled and bested Justice Scalia’s textualism. That triumph, however, was a narrow victory, and a victory riddled with dissonance. It was also a victory that evoked from Scalia one of the more scathing jeremiads he has issued from the bench. In what follows, I shall analyze the argumentation of Hamdi in terms of substance and style, and will look at the various opinions issued, along with a detailed examination of Scalia’s lamentation. A decidedly American philosophy, pragmatism seeks what works. In that pursuit, its focus on the instrumental often privileges expediency over principle. For many human endeavors, finding expedient resolutions simply

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.

Within the rule of law there are formal and substantive theories. Firstly, a formal theory literally is ‘shape’. Meaning what is the shape or form of law? The ‘form’ of law is

Once again, through American Legal Realism, we see the idea of general rules being incapable of providing decisions in specific cases. The

citizens are under a duty to obey the same laws, and there can be no

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)

The rule of law is a difficult concept to grasp and proves elusive to substantive definition. However, the following work considers the attempts of various social and legal theorists to define the concept and pertinent authorities are considered. Attitudes and emphasis as to the exact shape, form and content of the rule of law differ quite widely depending on the socio-political perspective and views of respective commentators (Slapper and Kelly, 2009, p16), although there are common themes that are almost universally adopted. The conclusions to this work endeavour to consolidate thinking on the rule of law in order to address the question posed in the title, which is at first sight a deceptively simple one.

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