Legal Theory Systems

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By Steven J. Burton

This booklet deals an unique conception of adjudication inquisitive about the ethics of judging in courts of legislations. It deals major theses. the nice religion thesis defends the potential for lawful judicial judgements even if judges have discretion. The permissible discretion thesis defends the compatibility of judicial discretion and criminal indeterminacy with the legitimacy of adjudication in a constitutional democracy. jointly, those theses oppose either conservative theories that might limit the scope of adjudication unduly and leftist severe theories that might release judges from the rule of thumb of legislation.

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Therefore, the ‘lawyer’s perspective’ on law, although valuable for some purposes, is arbitrary as the ultimate viewpoint on law if not for the simple fact that law is a social institution. With regard to the ‘institutional perspective’ it is important to make a further sub-division between legal philosophers. There is (a) the ‘engaged’ institutional perspective and (b) the detached or ‘disengaged’ perspective. The ‘engaged’ institutional perspective is the viewpoint of the legal theorist who seeks to give an account of law from the wide institutional perspective, placing law in its wider political and social context, but who has some sort of commitment to, or endorsement of, a particular legal system or type of legal system.

Indb 25 09/12/2010 10:48 26 Q&A Jurisprudence 2011–2012 Duty is an essential aspect of the law of nature, but how ought citizens to react in the presence of a tyranny? Ought they to obey rules which are clearly contrary to the natural law? In an interesting passage in De Officiis (44 BC), Cicero insists that no duties are owed to tyrants. ’ This passage has been cited repeatedly as a justification of the removal of tyrants who seek to destroy the common bonds uniting society. Others have interpreted it as a metaphor by which Cicero seeks to proclaim that no man has a right to rule in a fashion that will destroy the unity of the community without being challenged by first being exposed as a destroyer of the social harmony demanded by Providence.

To question his judgment, to voice disagreement, is to revert to the anarchy which characterised the undesirable state of nature. This is a part of the price to be paid for the peace which is intended to flow from the surrender of one’s individual will. Where a sovereign makes ‘bad law’ or performs acts which seem contrary to the general interests of the community, it is, says Hobbes, a matter between him and his God, not between him and the citizens. ) But where it is quite clear that the sovereign has lost the capacity to maintain the peace and protect the safety of the citizens, or where he has acted in an obvious attempt to destroy the individual’s right of self-preservation, citizens may be absolved from their duty of loyalty.

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