Defining Law Essay Example | Topics and Well Written Essays - 1500 words

Defining Law - Essay ExampleUndoubtedly, to be of use, most regulates or systems of rules overtop a method of enforcement, whether the method be remedial in nature, such as a civil judgment, or a penal sanction imposed in a criminal matter. John Austin, a counsellor of the social fact thesis of wakeless positivism, contends that the primary distinguishing feature of a effectual system is whether its rules underside be enforced (1995). Austin argues that a rule of justice in society is legally reasoned if and only if that rule is commanded by the societys sovereign and is backed up with the threat of sanction, or enforcement (1995). As such, it is Austins beat that the essential element of a law is whether someone has the ability to sanction its noncompliance.Austins slope seems tenable. Indeed, without enforcement, laws have no effect. To ensure compliance, and in the absence of any moral obligation to obey a law, an absence which we mustiness presume, a law must impose a consequence for a violation. Even the rules that govern the practical application of law, such as rules of procedure, require some sort of sanction for a breach. A prominent philosopher of law, H.L.A. Hart, has suggested that Austins position on enforcement is clear when applied to those laws that restrict our behavior, but is inapplicable to the set of rules that grant us the indicant to create rights and obligations, such as contracts and wills (1994). Even those rules, however, are enforced through sanction, to wit, the threat of litigation and the hatchway of voiding, for example, a created document should it contain a flaw.And the essence of such litigation, indeed the very root of its existence, is that law is subject to interpretation. Ronald Dworkin, a pillar of modern legal philosophy, believes that adjudication is and should be interpretive (1982). According to Dworkin, judges should come out to the political structure of their community when deciding hard cases by, fi rst, ensuring that their interpretation is in accordance with the communitys existing legal practices, and, second, that the interpretation is presented in the best moral light (1982). As such, Dworkin posits that a law is specifically characterized by its language, the facts to which the law must be applied, and the best moral application of that law given the social practices of a particular community.The idea that law is a set of rules subject to interpretation was also recognized by the legal realist movement. Inspired by John Chipman Gray and Oliver Wendall Holmes, and reaching its analytical peak in the twenties and 1930s, legal realism contradicted legal formalism by asserting that judicial decision making is guide far more frequently by the political and moral insights of the judge rather than by legal rules (Himma, 2006). Legal formalism embraced the concept that a judges decision, or holding, would always logically follow from the legal rule being applied to a particular set of facts, leaving little or no means for interpretation (Himma, 2006). The realist model asserts the opposite extreme, claiming that (1) any matters worth litigating are thereby divisive enough to require interpretation of the applicable rules, (2) judges make new law in exercising discretion when deciding legal disputes, and (3) when deciding