In Blood, the case revolves around whether a widow should be allowed to be artificially inseminated with sperm. Courts must decide the dispute before them to perform their constitutional role. All judges must follow Laws of Commonwealth, which are set laws made to assist judges in arriving at a fair and lawful decision. In none of these scholarly writings, however, do they allude that it is an option for the courts not to decide a dispute. These social rules then determined what the law in that society is.
The Case of the Speluncean Explorers. This also ensures that no one is treated unfairly or unjust, and guarantees that no offender is punished by an un-written law. Legal positivism is the opposite of natural law theory where moral constraints are the foundation of the theory, natural law was derived from morality originally Marmour, A significant reason for this is that courts are faced with the task of judicial review, where the activities of the government are scrutinized. I agree with him because in this situation where the co existence of the men is not possible without the taking of life, positive law is not applicable.
How about receiving a customized one? The last point was that a sovereign is one who is obeyed by the majority, the sovereign being one essat is a superior to an inferior Austin, Leaving the dispute without resolution in a dangerous case raises the immense concern that the general public would resolve the dispute in their own fashion.
The Case of the Speluncean Explorers: Essay Example, words GradesFixer
As a positivist, Trupenny would have argued that behaviour will not be recognised as law if the behaviour is expressed by anyone other than governmental bodies or officials. Austin claims that legal legitimacy is an important function of social facts Austin, The judge also used the literal rule to interpret the statute. This is a disadvantage of positive law as it is unfair and leaves individuals with no justice Kramer, This thesis suggests that the sovereign, being a governmental body or official who holds the most power in the society, is a distinguishing feature of the legal system.
He also raised a point regarding the jurisdiction that the state had over these explorers at the time of the murder given that they were miles below the territorial jurisdiction. Click to learn more https: Sorry, but copying text is forbidden on this website!
Case of Speluncean Explorers Essay
This is even in such a case where the courts made the decision to kill an unborn child for the life of its twin.
The judge also used a special verdict to assist him in determining a reasonable punishment.
Leave your email and we will send you an example after 24 hours Arguably, the court is refusing its job in some way as it fails its constitutional role of upholding the rule of law. There is also the possibility for judges to advise matters to be handled by the legislature or executive, whilst in the meantime, deciding the dispute based on what rules they can explorrrs.
Sumerian Language in Ancient Mesopotamia: Also, there was no malicious intention in committing the murder and it was solely for the purpose of survival.
When removed from principles of morality, fairness and justice, written law ceases to be lawful. How can Diane Blood, who sold her house spelunceean pay off legal fees be told in the end that there was no decision, a stalemate to her situation with nothing resolved?
The Case of the Speluncean Explorers
Legal positivism consists of many positive traits. Also, what the men did was according to the agreement accepted by all of them.
Accessed May 23, Finally, a critique of legal positivism will be provided utilising two main concepts from this theoretical perspective.
This gives defendants fairness and rights considering the disastrous situation they found themselves in. It is discovered upon their rescue that they have done as such, and the remaining four explorers are put on trial for murder.
These are monarchs, sovereign bodies and supreme political superiors, who are men and women sepluncean a state of subjection with political powers. Blood is such an example of a judicial review.
This essay has been submitted by a student. A similar disadvantage to legal positivism is that the theory states that it does not require any spelunceean of ethical justification of the statutes themselves Himma, This also ensures that no one is treated unfairly or unjust, and guarantees that no offender is punished by an un-written law.
This thesis was then adopted in the 20th century by legal positivists and modified by placing emphasis on social rules Marmour,