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LAW3021 Legal Theory

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LAW3021 Legal Theory

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Course Code: LAW3021
University: University Of Glasgow

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Country: United Kingdom

Questions:

1.The Speluncean case provides examples of how judges apply theory to Judicial decision making.  Which judgement in the Speluncean case sits closely with how you would decide the case based on the facts in Speluncean and why?
2.This semester you have learnt many legal theories and approaches including: utilitarianism, liberalism, legal formalism, legal realism, natural law and legal positivism.  Can you identify any of these theories or approaches in the individual decisions of the Judges in the Speluncean case? Look at each individual judgement and provide a theory(s) and give reasons for why you think each judge is impacted by that particular theory.
3.What would each of the Judges of the Speluncean case have said about Dudley v Stevens and the German case of Miewes?
4.Choose a legal theorist we have studied in our course. Provide an analysis of how the theorist you have chosen considers the relationship between law and Justice?
5.In your studies this semester what legal theory (s) and or theorist(s) do you most feel aligned with? Why? Provide reasons for your answer.

Answers:

1.The case of Speluncean Explorers is a fictitious case that has been created by Lol L Fuller in Harvard Law Review. The judgement of Foster was in my view was much relevant than others in deciding the case. He has correctly highlighted that how individuals were under the natural law rather than the Commonwealth law, because of the circumstance that has been created at the time of killing. There are some other reasons for supporting the view of Justice Foster that is related to the function approach that has been taken by him. The Commonwealth of Newgarth laws has been assumed to apply over the individuals. Since the applicability of the statue based on the functional approach has the major purpose of deterrence. It has been concluded by Foster that if the conviction has been upheld than the statue purpose cannot be served as in the same manner as it is present for the self-defence.
If Foster judgement has been analysed then he wants to convey that if the person have no any other option for the survival than the practicality of the positive law disappears. This principle accurately lays in this case and therefore in my person views Foster opinion in the case was much more significant than the others judges. The explorers who were living in an isolated world that has not been experienced by others and in that situation it has become very tough to survive. Therefore, the natural law has come into the action that allows the Speluncean explorers to make and to implement their own laws.
Foster in my view has provided proper arguments and given better explanations. The judge must consider law but at the same time it becomes necessary that they also must consider the following details of the laws that must been taken into consideration but at the same time the situation or the circumstances are also been important to be considered. Therefore, the viewpoint of Foster has been considered very closely to the decision. It can also be said that Foster viewpoint exact view the points of the natural law theory.
Foster judgement also contrasts the other judges’ views on the Speluncean case by suggesting that law does not work in every circumstance. The law depends on the circumstances and in this case, the law of Commonwealth will not apply. It will be dealt by laws of nature. Therefore, he found the accused should be held free.  
2.Chief justice truepenny has provided with the two views. The first view states that the statue shall been free from the ambiguity that is the best way to for the honest judiciary. This view is similar to the Legal positivism theory that states that the law has been made by the legal statue and it has been accepted by the society. The second view that suggests that providing mercy to the defendants is not a role of judiciary, as it will provide a harsh result.
Foster has stated that the law of nature permits them to kill and Foster approach can be consider is to be the proponent of the Natural Law theory. The natural law theory state about the behaviour of the human and the nature of the World and Foster view was similar to the Natural Law theory.
Justice Tatting statement is difficult to categorise under the theories. As the Justice Tatting did not conclude that what should be the right outcome. He has been unable to separate the emotion and to enact the law. Justice Tatting was trying to give fairness by considering justice into consideration. However, his views can be considered as Utilitarian view.
Justice Keen that affirms the sentence that has begins with the insisting that his personal view on morality and immorality and granting of mercy are irrelevant in relation to the law. Justice Keen considered the case as a simple question that applies the Newgarth positive law. In a plain meaning, it can be said that the opinion of Justice Keen exemplifies reasoning in relation of Legal Positivism. Legal Positivism states that only the legitimate sources that are enacted or adopted like written regulations, rules and principles that have been recognised by the governmental authority.
Legal realism is kind of the naturalistic approaches to the law. Justice Handy viewpoints are similar to this theory. This theory states that the approach must been to examine the law that is established on the value free method of the natural science that is also known as the science of real. Justice handy stated that the official of the government including the judges often lost in their own thoughts and they forget that these patterns does not resembles to external world. The approach of the Justice Handy was based on the value free method.
3.In  Regina v. Dudley and Stephens case, the court have found the defendants guilty of murder on the rule that in any circumstances killing of an innocent person will not justify murder, also in the case when there is extreme hunger. In this case, persons Dudley and Stephens killed parker for the hunger in order to save their own life.
Chief justice Truepenny will affirm the conviction but will also ask for the mercy. In his view the judiciary must been free from ambiguity and the case must been deal by chief executive and not judiciary.
Justice foster will acquit the defendants because of the circumstances that were happen where rule of law does not applies and where law of nature applies.
Justice Tatting view in accordance with the natural law, will be his priority over the agreement between the parties. If he will conclude his decision than he will acquit the defendants.
Justice keen will affirm the case as in his view the defendants will not been provided mercy due to the applicability of doctrine of separation of powers.
Justice handy will also favour to set aside the conviction in his view the public opinion is matter and in this case majority of people want that the defendants should been released.
German case of Miewes, where the agreement was happened between the parties to kill and can eat the person on the will of the victim. Miewes was charged for the murder.
Chief justice Truepenny will have found Miewes guilty of murder but for only five years because the murder was on his will. However, in this case the murder does not apply on the laws of the Constitution. Therefore, some mercy has been given in this case. 
Justice Foster will have also found guilty of the conviction as the natural law does not applies in this case and it the conviction can be in accordance with the proper laws.
Justice Tatting view is difficult because in his view the agreements between the parties is of no value when causing murder and might have found the Miewes guilty of murder for the life imprisonment.
Justice Keen view in relation to the law the morality and immorality does not matter and in this case, he may have found Mr Keen guilty of murder
Justice handy view that the Mr Keen has must been held guilty because the act of Mr Keen does not been justified by saying that on the will of the victim he has killed.
4.Ronald Dworkin Legal theory suggests the best link between the law and justice. He was a philosopher, jurist and scholar of United Sates. The theory of law of Ronald Dworkin presented in the Law’s Empire in which judges interpret the law. It is the most contemporary theories of the nature of law that consist of moral principles, especially justice and fairness. He has commented on the various legal issues and has advocated that the Constitution should have an interpretivist approach to the law and morality.  
In Accordance with the law of integrity, the law must have some standards to deal the cases that come to the judge. It must been structured on the logical principles of fairness, justice and the procedural due process and all the new cases that comes. Dworkin also suggested that the law of integrity provides a blueprint for the arbitrator that guides judge in deciding the case by using the same methods from which the integrity was derived.
It can be analysed by the Dworkin theory that the integrity can be said to be both an adjudicative and the legislative principle1. Legislative principles suggest that the makers of the law must make them as morally coherent. Adjudicative principles are necessary in engaging in a constructive interpretation. The Constructive principles are the method by which the social practices, work of art and texts can be interpreted.
It is said that Dworkin has proposed a third theory of law because it has contrasts with both the law of nature and legal positivism. Legal positivism can be supported by the three theories. The first is Social fact Thesis that states that the legal validity is somewhere are a function of the social facts. The second Conventionality Thesis that states that the social fact give rise to legal validity are imposing by the virtue of a social convention. The third Separability Thesis is rejecting the naturalism Overlap thesis. It states that there is no conceptual overlap between the law and morality.  These theses have been rejected by the Dworkin on the issue that there are some standards that are required to follow and the social facts cannot be explained according to these standards. It also states there is a relation between the law and morality.
Dworkin on every issue has interrelated the justice and the law on every aspect of his theory. It can be analysed that Dworkin wants to convey that justice is only been defined when morality and law can be interrelated and can be read as one.
5.Natural law theory and the theorist John Finnis are the one that I am aligned with. The natural law theory talks about the morality and the law. The natural law speaks about the human behaviour that defines the moral law. It can be said that the human beings are the rational beings and if it is seen morally than they must behave that make them conforms to their rational nature. Thus, the moral law can be having said to be derived from the nature of human beings. In Accordance with the theory of natural law, there is no much division between the notion of law and the notion of morality. Therefore, in my personal view I support this theory because it is necessary that the law can be only dealt with the laws that are written but it is also necessary that they must be interpreted according to the morality, if both terms been taken into consideration then only the actual law has been defined.
The Theorist John Finnis I was aligned with because it has a very clear thought about the natural law theory. John Finns neo-naturalism has been said to be the development of the classical natural law.  It has talked about the various fundamental goods for the humankind such as knowledge, life, friendship, play, religion, practical Reasonableness and the aesthetic experience. John Finns also explained the unjust law that it can be legally valid but it failed in realization of the moral ideals. The unjust law cannot be considered as a full law however, it is legally binding. John Finns has given the theory of ethics or morals and the theory pertaining to law in order to consider Overlap Thesis. Therefore, in my John Finns has provided a good relation between the morality, ethics and the law. It is analysed from the views of the John Finns that the morality is an important part for the human good conduct. John Finns in my view has able to support that the Natural law theory best states the link between the morality and justice. Therefore, from the John Finnis view can be analysed that the morality is an important part of the law, law and morality cannot be divided.
Bibliography
Journal/Books/Articles
Bix, Brian, “Natural law theory” (2006) 223 A companion to philosophy of law and legal theory 225
Burton, Steven, “Normative Legal Theories: The Case for Pluralism and Balancing (2012) 98” Iowa L. Rev 535
Feser, Edward, “Classical natural law theory, property rights, and taxation” (2010) 27 (1) Social Philosophy and Policy 21
Fligstein, Neil, and Doug McAdam, “Toward a general theory of strategic action fields” (2011) 29 (1) Sociological theory
George, Robert, “Natural law” (2008) 31 Harv. JL & Pub Pol’y 171
Green, Michael Steven, “Legal realism as theory of law” (2004) 46 Wm. & Mary L. Rev 915
Moore, Michael, “A natural law theory of interpretation” (2005) 58 S. Cal. L. Rev 277
Nourse, Victoria, and Gregory Shaffer, “Varieties of new legal realism: Can a new world order prompt a new legal theory” (2009) 95 (61) Cornell L. Rev 
Posner, Richard, “Legal formalism, legal realism, and the interpretation of statutes and the constitution” (2007) 37 (179) Case W. Res. L. Rev 
Scanlon, Thomas, “Contractualism and utilitarianism” (2012) 103 Utilitarianism and beyond 110
Schauer, Frederick, Fuller’s Fairness: The Case of the Speluncean Explorers (2016) 11 U. Queensland LJ 
Van der Burg, Wink, “The work of Lon Fuller: A promising direction for jurisprudence in the twenty-first century” (2014) 64(5) University of Toronto Law Journal, 736.
Van Staden, Marius, “The Case of the Speluncean Explorers in the South African Constitutional Court” 1 (2015) 1 (16) Obiter 35
Cases
Regina v. Dudley and Stephens (1884) 14 QBD 273 DC
Others
Harding, Luke, Victim of Cannibal agreed to be eaten (2003)

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