What Are The Arguments Against Legal Realism

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.

To be sure, modern laws are made to express the general will, a will that aims at the common good. This means that laws in most cases intend to protect every social member’s rights under the principle of justice and fairness. For telling examples one need to look no further than American judicial system. The access to the two courts systems, one federal court and one state court, provides citizens with the greatest potential to have their legal problems

In August 2015, the case Miller V Davis brought to light the complicated relationship between law and morality. Indeed, Mrs Davis a county clerk in Rowan county (Kentucky), is being sued for not delivering marriage licences to same sex couples as she believes that homosexuality is morally wrong. Thus, despite the fact that same-sex marriage has been made legal by the U.S Supreme Court since June 2015. Ought individuals to apply the law though it is in inadequacy with their moral beliefs? Do the law should be totally free from any moral influence? Many legal scholars have argued on these questions, as well as trying to define the terms “law” and “morality”. While no one has agreed to a universal definition, law can be defined as a “body of rules, whether proceeding from formal enactment or from custom, which a particular state or community recognizes as binding on its members or subjects”. On the other hand, morality is referred to as an “ethical wisdom” , the set of common values unifying a society. This essay will discuss the role of morality in the law, while analysing different legal school of thoughts arguing on the topic. First of all, positivists such as Bentham, Austin and Hart, argued that morality should not interfere with the law as it is created by a legitimate authority. On the other hand, naturalist theorists, such as Aristotle, Fuller and Dworkin, believed in the existence of a “higher law”, highly influenced by morals, has to be integrated in a legal system

concentrates that law is purely used to promote good by the state. Furthermore, law should

It is easy to see that the legal factors involved are themselves not perfect. Since the Court is made up of human beings who are similarly imperfect, it is not implausible to suppose that the Court likewise

PHL 612 Philosophy of Law [Calendar Description]: What is law? What makes something a legal norm? Should

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 contrast between Natural Law and Legal Positivism is a necessary starting point for those who wish to understand the relationship between law and morality, and the most varied manners in which it influences society to this day. When it comes to analyzing which theory offers the most well-rounded idea of law, one can argue that Legal Positivism provides the best definition of what law is at its essence. However, because Legal Positivism came to exist as a critique to what was proposed by Natural Law theorists, it is significant that both are explored in depth as means to support such argument.

The conventional accounts of Justice normally begin by stating a fundamental rule of Aristotle – Justice is to treat equals equally and unequals unequally, and that unequal treatment should be in proportion to the inequality. In everyday life though, justice is seen as an attribute of law, while all laws are not necessarily just. Many great socio- political movements of the world have focused from time to time on unjust laws eg Apartheid laws in South Africa and Caste laws in India. Impartiality and fairness are understood to be the two aspects of justice. But it would be misleading to suggest that Justice refers solely to the fair application of a rule.

In Hart’s eyes, though there may be a congruence between law and morality, it is by no means a necessary connection. (Hart, DATE)

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

This shows us that the idea that Dworkin has of moral principles playing a role in judicial decision-making and interpretation is correct to a large extent, and thus the use of subjectivity is accurate and apparent.

In this course we have been learning a lot on the topic of legal pluralism and normative orders. The paragraphs below will illustrate legal pluralism by using the case of Multani v. Commission Scolaire Marguerite Bourgeoys. First of all, we will begin with defining what legal pluralism is then we will go more in depth into the case. We will be covering the essential background of the case, the decisions of the courts and schoolboard with justification and a short personal reflection on the subject.

I agree mostly with what Ronald Dworkin is quoted as stating in this article. His opinion of the “moral conception of law’s normativity”(479) is what

develops into a commentary on the majesty of the law, the status of judges who must