1. Describe these two judicial philosophies. Judicial Activism is when judges/courts do not strictly stick to the interpretation of a law, but create a new one. Easily explained, when an issue is being ruled upon, courts establish a new law to rule broadly on the issue rather than limit their verdict. A lot of magistrates go beyond the constitution and statutes words and use their own political and personal thoughts.
This led to disputes amongst the states that could not be readily settled, as it relied on each state’s court system which invariably chose to discount the ruling of the other states. The Constitution, under article III section I, allowed for a central court system, including one Supreme Court and a system of lower courts. This would alleviate the dissention in the AoC court system and allow for cases to be heard and decided based on a central system of
This is true, but to interpret the laws and judge their constitution are the two special functions of the court. The fact that the courts are charged with determining what the law means does not suggest that they will be justified in substituting their will for that of
From there, Thrasymachus then states that justice, from the perspective of the ruler, is obeying their laws (339b). Socrates responds with three counter-arguments that thwart this definition: that rulers can make mistakes and pass laws that are against their interests (339c), that because of this then obeying the law would not be doing the interest of the ruler (339e) and that therefore obeying the law would not be in the interest of the stronger (339e). So justice cannot be doing the interest of the stronger (339e). Thrasymachus does not accept this
Judicial review is the right, or duty, the court has to review the constitutionality of legislation and/or actions taken by the executive branch. The court has the right to choose its cases, but these are brought before them not sought after by the court. What is the separation of powers? This is a form of checks and balances between the executive, legislative, and judicial branches of government. They are in place so as to contain the power of any one branch attempting to overstep its authority and act in a tyrannical matter.
Socrates constantly reiterated that divine law must supersede the laws created by state in the Apology, an argument he completely contradicted in Crito, where he emphasized on the importance of respect of institution and one’s civic obligation. A functioning government and society would not be feasible if there is an absence of clearly defined laws. Legitimate nation-states have constitutions, sets of rules that their constituency must respect and obey to establish a social order. It also serves as a binding social contract or an agreement between the government and its subordinate
In this essay, first the arguments of the Federalist Paper and the Supreme ruling of Marbury v. Madison will be discussed. Then these two sources will be compared and the similarity and difference will be clarified. Finally, the necessity of judicial review in the checks and balance system and its importance will be proved. One of the most important features of the jurisdiction, Hamilton stated, was the complete independence of the branch from the other two branches. The tenure in which the judges hold during good behavior is their biggest protection and creates the separation from other branches.
Policy is an important consideration for the courts to decide the duty owed by defendants. Lord Bridge suggested that it should be fair, just and reasonable when imposing duty on defendant. It is thought that the imposition of a duty solely base on foreseeability of damage is not desirable. As Winfield and Jolowicz suggests that “the court must decide not simply whether there is or is not a duty, but whether there should or should not be one.” For the purpose of this essay, I will discuss how policy can influence the imposition of duty. The most important policy concern has always been the “floodgates argument”.
Many laws have evolved and changed meanings over time, and therefore, the “law of our land” must be applied as accurately as possible for the criminal justice system to work effectively. The original content for which the amendment regarding counsel stemmed from a need to reinforce the standards set by colonial Americans when they were facing the English. The right to counsel was not necessarily a positive state because often the counsel appointed was not working necessarily for the defendant’s best interest. Nowhere does the amendment explicitly state that the accused will be provided counsel by the government (Sonneborn, 2004). There has been an addendum that had to be put in place later to combat any legal issues that would have been faced when integrating the right to counsel clause into the modern criminal justice
'Only Hard Determinism is justifiable' Discuss. Determinism is the idea that all actions are governed by laws outside of one’s control. Some philosophers believer that one’s ability to make free choices is an illusion whereas, others state that there is something else beyond understanding that may cause one’s actions to be determined. There are a variety of theories which are response to dealing with debate about free will and determinism. Hard determinism is the theory that human behaviour and actions are wholly determined by external factors, and therefore humans do not have genuine free will or ethical accountability.