We will occasionally send you account related emails. How about receiving a customized one? The trial judge applied only the course that was open to him under the law. The first was that the law is command issued by the uncommanded commander — the sovereign, meaning that a command can only be enforced by governmental bodies or officials Austin, Firstly, Justice Foster takes the view that positive law cannot be applied to the case. In Blood, there is no judge who refuses to decide the dispute, but the court struggles to exempt Mrs.
How about receiving a customized one? In this case the judge had to look at the facts and use the Law of Commonwealth to decide the penalties that would be imposed on the defendants. Theory , Jeremy Bentham. 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. Moreover, in the history of the English legal system, there has not been a dispute so impossible that the courts refused to reach a decision.
Accessed 22 May Both Blood and Speluncean Explorers have immense public pressure and scrutiny placed on the judges. Such an example occurred with Justice Tatting when he invented so many hypothetical scenarios that he could decide the dispute before him. It was first adopted to imply the idea that law is positive. Hypothetical situations can put a totally different slant on the facts of a case, which could make the situation even more dubious than before. How to cite this page Choose cite format: Ultimately, the court rules in favor of Mrs.
Legal positivism is the opposite spluncean natural law theory where moral constraints are the foundation of the theory, natural law was derived from morality originally Marmour, Positive law does not leave any discretionary power for the judge to give morality to their decisions.
The Case of the Speluncean Explorers: Essay Example, words GradesFixer
TheoryJeremy Bentham. The courts, therefore, cannot be allowed to refuse to decide the dispute. These mechanisms would be redundant if the courts were allowed to refuse the dispute before them.
It’s Importance to Developing Nations Essay. Inclusive is also known as incorporationism thd soft positivism. The purpose of this essay is to critically analyse one of the five judgments in the case of the Speluncean explorers. Discretion Thesis is used on complex cases only.
There will be three main parts to this essay. How can Exolorers Blood, who sold her house to 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
A similar disadvantage to legal positivism is that the theory states that it does not require any sort of ethical justification of the statutes themselves Himma, Austin claims that legal legitimacy is an important function of social facts Austin, For otherwise, there would be gaps in our law left unanswered, for individuals to fill in the gaps as they please.
However, the judges also have to balance their sympathies with the rule of law that provides that murder is to be punished.
The Prosecutor and counsel for the defendants both agreed on this course of action, it spfluncean then accepted by the court. He believes that the four explorers are innocent of any crime and rests his conclusion on two grounds.
Case of Speluncean Explorers Essay
Click to learn more https: The Pedigree Thesis was originally from Bentham but then adopted by Austin and modernised Hart, I agree with sppeluncean because in this situation where the co existence of the men is not possible without the taking of life, positive law is not applicable.