The power of the Supreme Court to declare laws unconstitutional leads some people to assume that the judicial branch will be superior to the legislative branch. Hamilton examines this argument, starting with the fact that only the constitution is fundamental law. To argue that the constitution is not superior to the laws suggest that the representative of the people are superior to the people and that the constitution is inferior to the government it gave birth to. The courts are the arbiters between the legislative branch and the people; the courts are to interpret the laws and prevent the legislative branch from exceeding the powers granted to it. The courts must not only place the constitution higher than the laws passed by congress, they must also place the intentions of the people ahead of the intentions of their representatives.
Artifactualism is constructed from many aspects of a variety of law theories, such as the Natural Law, Legal Positivism and Legal Realism. Though comprised of these theories, Artifactualism also criticizes them on different levels. What this theory derives from Natural Law is that law cannot be interpreted without taking into account it solidifies social norms that are present within it. From Legal Positivism it emphasizes that law is a human construct and that the focus should be on more tangible dimensions of law . Law should be interpreted through the contextual analyses of what people do in law versus focusing on finding the essence of Law as it criticizes Legal Positivists for doing.
Martin’s argument on how the Charter is antidemocratic has six main premises. Firstly, Martin supports his claim by making a point that judges, as they hold no accountability for what their judgments, can “overturn deliberate policy decisions made by the elected representatives of the people where those decisions do not accord with the way the judges interpret the Charter.” Thus, the Charter, according to Martin, is antidemocratic. Secondly, Martin discerns the differences between liberalism and democracy, creating operational definitions for each. He explains that liberalism “is about individual rights,” and is “about the ability of individuals to do as they please without interference from the state.” Therefore, according to Martin, Liberalism “makes protection of the autonomy of the individual more important than the promotion of the welfare of the
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.
Despite these 'similarities' between the two documents, the statements reach separate conclusions as to how the United States should continue to protect liberty. While both statements appear to uphold the Declaration, it is the Sharon Statement, and not the Port Huron Statement, which supports the Founder's intentions for the United States' government. The Port Huron Statement deviates from the original documents and proposes an expansion of the government in order to protect individual freedom; it suggest publicizing private affairs to protect liberty, a paradox it creates even as it names paradoxes in the United States. The Sharon Statement upholds the integrity of the Declaration and the Founders by adhering to the Constitution and not stepping past the bounds of government it lays out in its structure. The Port Huron Statement, if applied to United States policies, would destroy the liberty carefully established by the Founders, laid out in the Constitution, and defended throughout American history.
I would be the first to advocate obeying just laws. One has not only a legal but a moral responsibility to obey just laws. Conversely, one has a moral responsibility to disobey unjust laws. I would agree with St. Augustine that “an unjust law is no law at all.” Now, what is the difference between the two? How does one determine whether a law is just or unjust?
Sinnott defines consequentialism as: Consequentialism, as its name suggests, is the view that normative properties depend only on consequences. This general approach can be applied at different levels to different normative properties of different kinds of things, but the most prominent example is consequentialism about the moral rightness of acts, which holds that whether an act is morally right depends only on the consequences of that act or of something related to that act, such as the motive behind the act or a general rule requiring acts of the same
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.
Thoreau implies that as long as one moral person can stand up for himself, others will follow and eventually force change. Second, civil disobedience is a method of political engagement: its goal must be aimed at bringing the law into conformity with the requirements of justice. No civil state is perfect – all contracts have compromises and flaws. As a united people of a state, it must have its general will parallel to the path of justice to ensure freedom and equality. Therefore, the general will of the people requires that laws be amended to reflect morality and justice.
Describe three major philosophical theories of law. The principal objective of analytic jurisprudence has traditionally been to provide an account of what distinguishes law as a system of norms from other systems of norms, such as ethical norms. All forms of natural law theory subscribe to the Overlap Thesis, which is that there is a necessary relation between the concepts of law and morality. According to this view, then, the concept of law cannot be fully articulated without some reference to moral notions.The Conventionality Thesis emphasizes law’s conventional nature, claiming that the social facts giving rise to legal validity are authoritative in virtue of some kind of social convention. The Separability Thesis, at the most general level, simply denies naturalism’s Overlap Thesis; according to the Separability Thesis, there is no conceptual overlap between the notions of law and morality.