Jurisprudence. Essay

2254 words - 9 pages

Answer both parts A and BA. What approach would Prof. Dworkin take to the issue dividing the majority and the dissent in the joined cases before SW v United Kingdom CR v United Kingdom?B. How might a legal positivist respond to Prof. Dworkin's approach?From the beginning of the creation of civilised societies man has felt the need for the creation of a set of rules that will govern his society and allow the smooth everyday living in them. Since early societies could only be ruled by the sword or by God it is evident that the first set of rules created by man were based on religious guidelines. As societies evolved into more complex and sensitive structures, so did the needs of the people living in them. Therefore the old religious rules had to be upgraded into new rules which would cover a broader area of everyday life and which were usually based on experiences and moral and ethical rules of society.Modern law has now developed into a mixture of a clear legislative rule and its interpretation by the judicial. On this matter, two schools of thought have had a great impact, Natural Law and Legal Positivism. A third school of thought is the one developed by Professor Ronald Dworkin and is described as the Intermediate Theory. Professor Dworkin's is said to belong to neither of the pre-mentioned schools of thoughts as he is not a Natural Law theorist but his theory is critical of Legal Positivism. Since verdicts given by modern courts of law are not solemnly based on fixed legislative statutes but also on the judiciary discretion, there is much discussion to be made on the different views on each case. In this case we shall examine how the theories of Professor Dworkin and those of Legal Positivists apply in cases where there is controversy as to the law itself and its interpretation.Part A.In the joined cases of SW v United Kingdom and CR v United Kingdom before the European Court of Human Rights , the issue was whether sexual intercourse in a marriage could constitute a rape if it happened without the consent of the wife. Adding to the problem faced by the court was the fact that there was no clear law on the subject because at the time when the incidents occurred, sexual intercourse was considered part of the marital duties. The argument therefore was whether the principle that a man cannot have sexual intercourse with his wife without her consent existed at the time of the two incidents and furthermore if it did, can it be applied on these two cases or is it a retrospective punishment. The majority based their decision on their view that at the time when the offences were committed the relevant law stated that the defendants' actions were unlawful. On the other hand, the dissent was of the view that the existing law at the time of the offences did not constitute the defendants' actions unlawful and that they were simply being punished retrospectively because of social morals and ethics but not according to the law.When considering Professor...

Find Another Essay On Jurisprudence.

Compare critically Bentham's, Hart's and Dworkin's accounts of legal obligation. The essay is submitted for the course "Jurisprudence"

3038 words - 12 pages , Jurisprudence: Theory and Context (London: Sweet & Maxwell, 1999)Wacks, Raymond, Swot Jurisprudence (London: Blackstone Press, 1999)Lord Lloyds of Hampstead and Freeman, M.D.A., Lloyd's Introduction to Jurisprudence (London: Stevens & Sons, 1985)Dworkin, Ronald, Law's Empire (Oxford: Hart Publishing, 1998)Dworkin, Ronald, Taking Rights Seriously (London: Duckworth, 1977)Hart, H.L.A., The Concept of Law (Oxford: Oxford University Press, 1961

Can a free person ever obey the law? - Jurisprudence - Essay

1182 words - 5 pages Freedom is one of the most sought after values in the world. Humanity strives to be free, to make our own choices and decisions without being constrained by others. Many people deem themselves to be free. However, Philosophical Anarchists such as Robert Paul Wolff put forward the argument that political authority contradicts individual autonomy. This essay will critique the Philosophical Anarchist point of view that authority is incompatible with


755 words - 3 pages Jurisprudence is a ragbag. Into it cast all kinds of general speculations about the law. What it is for? What does it achieve? Should we value it? How is it to be improved? Is it dispensable? Who makes it? Where do we find it? What is its relation to morality, to justice, to politics, to social practices, or to naked force? Should we obey it? Whom does it serve? These are the questions of which general jurisprudence is comprised. They can be

Feminism as a Theory of Law

2885 words - 12 pages more than this it would allow them to “change the rigid contexts and structures” mentioned above, which have prevented the advancement of gender equality within the legal structure. However, postmodernism also raises some problems in relation to feminist jurisprudence. Hilaire Barnett states that “there must be developed critiques … which reject the universalist, foundationalist, philosophical and political

Care and Protection of Children Act 2000

1887 words - 8 pages prosecute a Juvenile. ANALYSIS:- In a simple term Jurisprudence in the knowledge of law or can be attributed as a science of law, in which we analysis different elements like the sources, approaches and certain legal concepts through which we deduct the nature of law. There are different approaches towards law and each of these approaches inherits different view points behind law. In jurisprudence these approaches help to analyze the term law in

The Legal Perspective of Ecosystems in Wild Law: A Manifesto for Earth Justice by Cormac Cullinan

1305 words - 6 pages environmentalists throughout human history. Cormac led the drafting of the 2010 Universal Declaration of the Rights of Mother Earth. He still maintains his role as senior environmental lawyer and adviser on institutional, policy and regulatory reform in the fields of environment and natural resource management. His work in pioneering the legal philosophy governance systems called “Earth jurisprudence” is internationally recognised. Cormac is currently also the

This Essay Is A 1 Page Biography On Adam Smith, The "Father Of Capitalism"

281 words - 2 pages , jurisprudence, and political economy, also known as "police and revenue". Theory of Moral Sentiments, which he published in 1759, contained some of his lectures from Glasgow. This book stressed the general harmony of human motives and activities under a beneficent destiny. He published his most famous work, The Wealth of Nations, in 1776. Its emphasis was more on a general theme of "the invisible hand", which supported harmony of interests, and free

Forensic Essay

926 words - 4 pages , Hinrich (1825) Enrico Pattaro, A Treatise of Legal Philosophy and General Jurisprudence: Vol. 6: A History of the Philosophy of Law from the Ancient Greeks to the Scholastics, Springer (2010) Francis de Zulueta, The Institutes of Gaius, Text with Critical Notes and Translation, Oxford: Clarendon Press, (1946) Gian Luigi Falchi, Disputes between Sabiniani and Proculiani, A. Giuffre (1981) H. F. Jolowicz – Historical Introduction to the Study of

Ausubel’s Expository Teaching Model

1385 words - 6 pages Ausubel’s Expository Teaching Model Highly abstract concepts, such as jurisprudence and sovereignty, oftentimes cause high school students much struggle when trying to thoroughly understand such conceptual ideas. To teach these theoretical concepts, one must not only equivalently utilize David Ausubel’s Expository teaching model, but also retain an overall knowledge of other valuable strategies related to Ausubels’s model (Woolfolk, 2004

Religious Pluralism and Islam

1813 words - 8 pages Shahadah. This, among many other practices, is an example of the religious plurality that exists within the Islamic world. The Islamic world is home to a large and diversified religious community that, on the surface, seems homogenous in its religious practices. But many religious schools of jurisprudence, schools of theology, and other religious movements exist under the umbrella of Islam, these schools bring religious diversity to Islam that

Statement of Interest

604 words - 3 pages I distinctly remember sitting at the table while still a grade-schooler, listening to my grandparents discuss countless decisions of the apex court and their potential impacts on the day-to-day affairs of the country. Growing up in a household filled with civil servants and members of the judiciary has certainly instilled a natural interest in jurisprudence and matters of public policy within me. As I’ve grown older, I’ve become personally

Similar Essays

What Is Female Jurisprudence Essay

954 words - 4 pages Female Jurisprudence: - The importance of gender specific language in Legal reasoning. "Language matters. Law matters. Legal language matters.” Does not get any truer than this. Without language and linguistics one cannot communicate and without law the land would be lawless. You need some of jurisprudence and for that the letter of the law is the binding force and something that everyone has to agree on whether they like to nor not. Although

Theories Of Constitutional Jurisprudence Essay

770 words - 4 pages Constitutional jurisprudence is a way that the court decides whether something is constitutional or not. It forms a basis for the justices to reach a conclusion regarding different cases that they encounter. Three main theories pertain to the constitutional jurisprudence; original intent theory, living constitution theory and plain text meaning theory. Among these the living constitution theory is the best because it takes into account the

Feminist Jurisprudence: A Women’s Experience Essay

926 words - 4 pages jurisprudence, a philosophy of law based on the political, economic and social equality of sexes. I will be discussing many of the laws that were passed not only with a male perspective but also as a form of oppression towards women. It is an inquiry that is methodologically and substantially an inquiry from the point of view of women’s experiences. It criticizes and subverts patriarchal assumptions about law including patriarchal attempts to

Schacht And The Origins Of Muhammadan Jurisprudence

2252 words - 10 pages Joseph Schacht was perhaps one of the more controversial Western scholars on Islamic law. Although his work, The Origins of Muhammadan Jurisprudence, was originally received with some measure of critical acclaim, over time, scholars have attempted to redress the controversial underpinnings of his theory on the nature of prophetic authority in the centuries after Mohammad’s death. At the heart of Schacht’s argument is the idea that legal