Historically, What Theoretical Perspective on Legal Order Do You Think Has Been the Most Influential on Canadian Laws and Lawmakers? Essay

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I believe historically that Canadian law and lawmakers have been most influenced by the theoretical perspective of Positivism regarding legal order because of outcomes like the sentencing of Robert Latimer for the murder of Tracy Latimer, legislation mandates such as the ten year minimum sentence for second degree murder, and how positivism interprets laws as written in stone. Positivism is defined by the Oxford Reference Dictionary as, “the theory that laws are to be understood as social rules, valid because they are enacted by ‘the sovereign’ or derive logically from existing decisions, and that ideal or moral considerations (e.g., that a rule is unjust) should not limit the scope or operation of the law.” In other words, rules are made by human beings and that there is no inherent or necessary connection between law and morality. An important point to remember about positivist according the textbook Canadian Law: An Introduction, is that people should not be mislead to believe that those who support the positivist framework are inherently amoral or motivated by a desire to defer to the status quo. To the contrary, positivists do argue for a legal process that protects liberty and democratic institutions, and prevents the abuse of political power (Boyd, 2002). In the case of Robert Latimer, Latimer was convicted on a charge for second degree murder for murdering his daughter Tracy Latimer. At his first trial Latimer was found guilty for second degree murder and sentenced to a term of life imprisonment without parole eligibility for ten years. Latimer appealed the decision and was awarded a second trail. At the second trail, the trail judge did not permit the defense of necessity to go to the jury, and the jury convicted Latimer of second degree murder and granted Latimer a constitutional exemption from the mandatory minimum sentence. The sentence of the

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