The Theoretical Perspective of Legal Realism

Chief Justice Bird dissented with the majority that second degree murder should not be applied that believes that the prosecution had to prove two elements of implied malice which are an intent to kill and a conscious disregard with life. She believes that the majority fail to show the existence of these two elements in this case. The facts showed that the act of speeding through a green light can be dangerous, but it is not an act likely to cause the death of another individual. Also, it was 1 a.m. and the witness testified that there was no other cars around. She compares the defendant’s actions to those of the defendants in People v. Fuller (1978). In this case, the defendants fled from the police during an attempted auto burglary and began to drive on the wrong side of the road. This happened in an early Sunday morning, so many cars had to swerve and avoid the defendants. They ran a redlight and went through two police cars that were trying to block him off. They ran a second red light and hit a car which resulted in the driver 's death. Chief Justice Bird compares the facts of that case to this one. She compares how in this case the defendant did not run a red light where the collision occurred and the streets were empty since it was 1 a.m. She does agree that driving while being under the influence does make driving more dangerous and can cause more accidents, but he does not believe that driving under the influence is not enough evidence to establish an act to kill

     In his book on ?The Behavior of Law? Donald Black attempts to describe and explain the conduct of law as a social phenomenon. His theory of law does not consider the purpose, value, impact of law, neither proposes any kind of solutions, guidance or judgment; it plainly ponders on the behavior of law. The author grounds his theory purely on sociology and excludes the psychology of the individual from his assumptions on the behavior of law (Black 7). The theory of law comes to the same outcome as other theories scrutinizing the legal environment, such as deprivation theory or criminal theory; however, the former concentrates on the patterns of behavior of law, not involving the

The first thing to establish is the different theories that revolve around this topic to gain an understanding of the different views. The main two perspectives are known as the Natural Law theory and Legal Positivism. Natural law theorists claim that morality and law

A changing landscape is presented, as de Smith states, ‘Judicial review provides just one of a number of legal controls of administrative action and its role is inevitably sporadic and peripheral.’ in 1980 whereas in 1995, he states ‘…the effect of

The rule of law as proposed by A.V. Dicey asserts that no man should be punished except for conduct in clear breach of the law.  This assertion supports the fact that the legal system rests on the objectivity of the Judiciary.  Where we are governed under a system which rests upon the impartial application of laws, and under which citizens’ rights and obligations are regulated by those laws, there must be an established and accepted system for making law.  The law must be publicly known. Interference with rights and obligations must be justified within the law as the perception of rights, freedoms and equality in society is influenced by the quality of Judicial rulings.

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.

A central issue for all sovereign states is the organization of their judiciary and the role it plays in furthering the peace, order and good government (POGG) as a feature of constitutional rule (Yusuf, 2014). As the highest forum for legal challenges, the final appellate court can play a crucial role in policy making. This research provides answers to what influences a state’s governing coalition in choosing a final appellate court. As challenges to policies deemed necessary for POGG percolate up the judicial hierarchy, legitimization by the judiciary is an important issue (Dahl, 1957). The concept of ‘political jurisprudence’ encapsulates the idea that judges, as well as courts, must be understood as part of the political and judicial

Legal positivism offers a definition of laws as a written declaration made by government officials that have legal power to control certain aspects of society and human conduct (Himma, 2004). Legal positivist recognize all rules, regulations, principles and other forms of law that come from an authorized government body or official (Himma, 2004). But Legal positivist do not recognize laws, principles or any form of law or behavior modifier that does not come directly from an authorized government official (George, 1996). Any behavioral norms will not be recognized but legal norms are deemed as enforceable by the police power of the government (George, 1996). Legal positivism is often put in contrast with natural law because they are basically opposites.

In the early 20th century a group of American scholars, lawyers and judges considered these issues and put forward a theory now known as American Realism. They attacked the formalists claims of their decision making process and highlighted that was not how the courts operated during adjudication. Roscoe Pound stated “The notion that most judicial decisions should or could be deduced from general concepts or general rules, with no attention to real-world conditions or consequences, critics labelled “mechanical jurisprudence.”3, another realist Oliver Wendell Homes Jr. concurred “General propositions do not decide concrete cases.”4 Realism is not easily defined, however, the key concept of the realists was that they wanted to look at the law in action in the real world. How it actually worked in real life, what do judges actually consider when making a decision, Holmes clarified the

These are two legal philosophies or theory of law that are commonly used in the daily arguments and discussions of the legal issues. These two, in as much as have the observance of the law as the common factor, have varied or divergent approach to law as a discipline and as a practice.

2. In the positivist definition of law a legal person is a purely formal legal concept, a fiction, a device, and a construct. The focus is on the variable rights and duties attributed. Through legal personhood, the way that society and the state interact with the individual is prescribed. Davies and Naffine outline Kocourek’s

I pick the Social Security Administration for this assgniment, it is a federal government agency. Am interested in the Revised medical criteria for evaluating mental disoders proposal due to the fact that the Social Security Administration affect the lives of most Americans and proposed changes will impact many citizens. The proposed regulation will not affect me or affect my business, because am into car retailing business and the proposed Social Security regulation does not have direct impact on the retailing business.

In Greek Mythology, King Midas is granted a wish and wishes for the golden touch which he believed to be a good then realizes it is a curse. That day King Midas learned a lesson to think before speaking. As a kid, I was naive and I never listened to my parents, but as I grew older it dawns on me my parents are right. “Life has an irony all its own. What you wish for, you get, but you discover that it 's not what you want.”(John Austin Connolly). Austin was a noted British jurist and published extensively concerning the philosophy of law and jurisprudence. I am using the quote because it explains why being careful what you wish for is important as a kid.

The slight difference between Hart’s social rules and MacCormick’s informal normative order can potentially lead to important differences in their theories of law. The underlying idea of MacCormick’s legal system’s rule-defining informal normative order then becomes the ultimate determinant of what is and is not law. Without the requirement for an underlying idea, Hart will most likely disagree with MacCormick about what is and is not law, setting apart their theories.

The world of the law is the world of external, mainly social, structures and relations. If it wants to bring a judgment over events in the internal world of the spirit, it must gather the necessary evidence from the external world, and then proceed further by way of conjetures that become legal presumptions. It speak rather of excluding a) marriage itself, b) an esencial element or c) an essential property; and to these three may be added, for the marriages of baptized Christian, d) sacramentally.