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Jurisprudence Essay

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Mill on Individualism and Morality

The Hart-Devlin debate
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H. L. A. Hart

Essay 3 Problems of the Philosophy of Law. Part II American Jurisprudence. The Nightmare and the Noble Dream. Law in the Perspective of Philosophy. Essay 6 Scandinavian Realism. Essay 7 Self-referring Laws. Essay 8 Utilitarianism and Natural Rights. Essay 9 Between Utility and Rights. Essay 10 Rawls on Liberty and Its Priority. Essay 11 Social Solidarity and the Enforcement of Morality. Part V Four Legal Theorists.

Essay 13 Diamonds and String: Holmes on the Common Law. Essay 14 Kelsen Visited. Essay 15 Kelsen's Doctrine of the Unity of Law. To say this is not to condone or encourage private immorality. On the contrary, to emphasise the personal and private nature of moral or immoral conduct is to emphasise the personal and private responsibility of the individual for his own actions, and that is a responsibility which a mature agent can properly be expected to carry for himself without the threat of punishment from the law.

Lord Devlin disagreed with this libertarian point of view. His Lordship argued that the policing of vice is as an important a function of the law as the policing of subversive activities. Devlin contended that it is as difficult to delineate the realm of private morality as it is to ascertain one relating to private subversive activity. Hence, he argued that one who is no apparent menace to others may, by his immoral conduct, jeopardise part of the moral establishment on which society is based.

Given that every society is entitled to preserve its own existence, he submitted that it follows that it has the right to employ the institution of the criminal law and its sanctions to enforce that objective.

Lord Devlin postulated the test that every moral judgment should be determined on the fundamental basis that no right-minded man could act in any other way without admitting that he was doing wrong. Such a question should be left to the judgment of a jury of peers, where the decision could be left to a matter of feeling and conscience.

His Lordship thereafter attempted to set in place a threshold for the intervention of the criminal law. He argued that the law was entitled to intervene to address behaviour that aroused feelings of indignation and disgust in society.

The view that the majority have a moral right to dictate how all should live. This is a misunderstanding of democracy which still menaces individual liberty. This analysis chimes with that advocated by Mill more than a century earlier. Many ordinary citizens would subscribe to the contention that it is the function of a democratic government to enforce the side of the collective interest in most situations.

One could say that this approach buttresses the rationale and indeed the legitimacy of modern democracies. No one can be a democrat who does not accept the first of these, but no democrat need accept the second. Mill and many others have combined a belief in a democracy as the best - or least harmful - form of rule with a passionate conviction that there are many things which not even a democratic government may do.

Dworkin commented on the Hart-Devlin debate by considering a scenario in which a citizen decides to vote against a man running for a public office because he is aware the candidate is homosexual and because he believes that homosexuality is profoundly immoral.

He postulates several fundamental rules of moral reasoning and finds that if a decision to vote against a person due to his homosexuality is to have a rational basis, certain types of reasoning are excluded. Dworkin resolves that even a reason not disqualified by virtue of prejudice, emotional reaction, or social pressure may be insufficient.

The reason produced must be one that is consistently held. It remains possible that the ordinary man could produce no reason for his view, but would simply parrot his neighbour who in turn parrots him, or that he would produce a reason which pre-supposes a general moral position he could not sincerely or consistently claim to hold. Jurisprudence, so treated, may take its place as one of those inductive sciences in which, by the observation of the facts and use of reason, systems of doctrine have been established which are universally received as truths among thoughtful men.

But Jurisprudence in its in its investigation of the origin, principles, and development of law, obviously furnishes rules which teach men to acknowledge and select good laws, to shun evil laws, and to practice the existing laws and apply them skillfully. A Jurist may state principles of law in his study, enact laws in the senate, or advocate rights in his forum Heron, Thus Jerome Frank was a leader in deriding the possibilities of predicting official behaviour by the application of traditional legal rules and was most skeptical of the potentialities of reliable prediction by any means; yet he made uniquely significant contribution by drawing upon many psychologies to demonstrate the importance of predispositional factors the subjectivities of decision makers in affecting all decision.

Jerome Frank has set out in his well known work… to analyze the law from a psychoanalytical point of view. Lawyers in general, and judges in particular, have clung to the myth of legal certainty, by establishing fictitious system of precedents, hiding before themselves and others the fact that every case is unique and requires creative decisions.

A similar myth surrounds the activities of juries. Analytical jurisprudence expresses this child like desire for certainty and stability. Although Gray joins Holmes as one of the two great Jurisprudential heroes for Jerome Frank, Karl Llewellyn, and the other legal realists, he is much more than that ; he is a kind of American John Austin, but one whose analytical Jurisprudence does not act as if legal concept originated and developed outside legal history.

He represents the positivistic branch of the American pragmatic legal tradition. He is closer to Austin than Holmes, than but not as influenced as Holmes— or John Dewey— by historical jurisprudence, or the evolutionary controversy, or the increasing respect philosophers paid to the very idea of historical development Gray, Langdell viewed law as a science, which could be practiced very simply by applying legal rules mechanically to specific cases recorded in the law reports.

Jerome criticized this arguing that Langdellian legal science had very little to do with law, because it overlooked such things as the lawyer-client relationship and the rule of the jury.

The purpose of Realism, on the other hand, was to expose this myth. The contradiction which can be found in the work of not only of Jerome, but also of another American Legal Realists, is a serious flaw. While some sought a stable referent, others, such as Mackinnon and Matsuda, sought to refashion old tools to serve new purposes.

The equal protection clause of the American constitution seemed a promising candidate, and the Jurisprudence of antisubordination was born. West, Kennedy, Mackinnon and Matsuda are united in the belief that outsiders will not find freedom, justice, or equality in the law as it is.

Inequality…is not a bad attitude that floats in the sky but an embodied particular that walks on the ground. Liberal jurisprudence is essentially masculine jurisprudence, in other words, because it prioritizes the distinctively male ethic of justice or rights.

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Example Essays. Jurisprudence means the knowledge or skills of the law. The law is basically described as an iceberg. Only one third of the laws are visible to us, the other two third are deep down, where it .

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We will write a custom essay sample on Jurisprudence specifically for you for only $ $/page. Order now By law is here understood positive law—that is, the law existing by position, or, the law of human enactment. Jurisprudence is the science of positive laws, and, as such, is the theory of those duties which are capable of being. Jurisprudence law and morality essay read this don t need to comparative and more details about the rules is a more. Ethical foundations jurisprudence in jurisprudence is once again.

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I sincerely acknowledge the help rendered to me by our Faculty for the Jurisprudence. He has helped me a lot whenever I needed any sort of assistance and guidance related to the topic. I acknowledge the sincere help of our library staffs and our net centre-in-charge, who by rendering me help in locating appropriate resources [ ]. This essay has been submitted by a law student. This is not an example of the work written by our professional essay writers. Jurisprudence Social Legal | Free Jurisprudence Law Essay.