Legal Theory
Legal theory:
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Legal theory
PARTA 1) what law is shown/talked about/enacted?
The law that is talked about is criminal law
2) Were lawyers shown? If so how are they represented? What other legal actors are shown? (Police, criminals etc) How are they represented?
They were lawyers present; the other legal actors are members of the military tribunal. Some of the actors were Burt Lancaster, Richard Widmark, The criminals in question are the 21 Nazis on trial. They are accused of committing various numbers of inhumane trails. 11 were hung, 6 were jailed and 3 were acquitted.
3) Was justice served? If so whose justice? What assumptions about law in our culture can you make from watching this show?
Justice was served. The justice in this case was in favor of the Jews who were killed in German during the holocaust.
4) What was/were the genders/races/sexual orientations of the characters? What relationship do they have to the ‘law’ and each other?
The criminals were all male, they were Caucasian. The victims were both male and female, they were Jewish and the members of the legal tribunal were mostly male. The criminals were answerable to the law due to their participation in the murders. The victims were seeking justice for the death and torture of their family members. The legal tribunal were responsible for ensuring justice prevailed by sentencing the criminals. 5) In the Movie Judgment at Nuremburg which lawyers could be considered natural lawyers? Why?
The lawyers who acted on behalf of the victims based their arguments on natural laws arguing that the offenders did not have to succumb to the demands of the government despite the fact that the government had the legal authority to carry out their orders.6) In Judgment at Nuremburg which lawyers could be considered positivists? Why?
No lawyer can be considered a positivist. This is due to the fact that the court denied the arguments of defense who claimed that they acted in line with the law of the German government at the time. Most of the judgments were thus made through the observation of the natural law.
PART B1) Explain the elements of Aquinas’ account of law. How does Aquinas’ version of natural law differ from Fuller?
Known for his take on natural law Aquinas provided an opinion in all aspects of law. He supports the overlap theory which combines the observation of moral law and concepts of law. The rules of law cannot work without consideration of the moral point of view. Morality thus plays a significant role in the determination of what is right or wrong in the eye of the law.
Fuller on the other hand, accounts for a different in regards to the definition of law. He lays out eight principles that make up the morality of law. If rules do not fall into any of the principles of law, they do not quality to be termed as law. These principles are inborn and are thus laws that they society accepts in general.
2) What are the central elements of Austin’s account of law? How is it different to Hobbes’ and Fuller’s?
Austin states that law is created through the facts that are determined by the society. The credibility of law is separate from the advantages and disadvantages. Hobbs states that the set of rules cannot be recognized as laws if they are not recognized by the government. Hobbs has a more classical approach to law, he account that God is the creator of all of making and is thus the overall giver of the law. This works hand in hand with the laws of the government. As stated earlier, the Fuller differs from Austin in that he maintains that all social rules cannot be dubbed as law if they do not apply in his 8 principles of law. The 8 principles guide the society on the way they should address each legal situation.
3) Do you agree that in Judgment at Nuremburg the understanding of law that is affirmed is positivism?
Positivism is the law that is derived by man. This is the opposite of natural law in which is derived from the moral laws of the society. Most of the defendants were tried on the role that played in the holocaust. According to natural law, the acts that these defendants committed were not accepted in any society including German. The laws that were affirmed were thus not under the positivism laws.
4) Is Atticus Finch a good lawyer?
Atticus finch is a good lawyer. He dedicated his life to fight for justice for the ordinary people in the society. The legal system at the time was corrupt; this would have made any other lawyer give up. Finch fought for justice until the end despite the fact that it was evident that he would lose the case. 5) What would you do in John Yoo’s situation? What would you do in Dan Mori’s?
If I were in John Yoo’s situation, I wools continue to rally against the treatment of tortured victims. Most of the victims have not received justice to date. John woo should thus continue to rally in favor of such victims.
6) Who would you want to defend you if you were charged under Part 5.3 (Terrorism) of the Commonwealth Criminal Code – Dr Ernst Janning, Hans Rolfe, Atticus Finch or Major Dan Mori? Explain.
I would like Hans Rolfe to defend me if I were charged under terrorism the code. He has a background in this area of expertise. This was seen in his delivery of the closing argument in the trial at Nuremburg. He would thus provide the best legal advice on the way to approach the case
PART C
Explain the relationship between positivism and formalism? Is it possibleto be a natural lawyer and also a formalist?
Positivism is the reliance of the laws made by a central authority such as the government concerning all aspects of life. It is different from natural law in that natural law tends to be flexible. Formalism is a branch of positivism in that it contains some principles that are the same as positive. Formalism is differentiated through the in that it places emphasis on reasoning as opposed to the policy. A natural lawyer can thus be a formalist lawyer in that both use reasoning to determine the basis on which they argue their cases. Both do not rely on rigid policies to which are manmade in nature2) Do you agree that Professor Charles W. Kingfield Jnr is the archetypical formalist?Yes I do
3) Do you chase (digital) paper in law school? Does Kennedy’s description that law school takes nice, normal people and turns them into manipulative, self-serving operators within a hierarchy reflect your experience?
This does not reflect on my experience so far. The rule of law was created so as to find a way of providing justice for all. Some lawyers may take advantage of the system so that they can win a particular case. This however does not reflect on the whole legal system in that some people take on law as a career so as to make a difference in the society.
4) What really where the realists all about?
The realists were all about politics as opposed to law. Realists have classified law in the same category as politics. This is owed to the fact that law is written by politicians who amend the rules to suit their needs. Most of the policies require legal structure before they are enforced. Both factors thus work together in order to be viable.
5) Is Rumpole a rule skeptic, a fact skeptic or a ‘manipulative, self-serving operator within a hierarchy’?
Rumpole is a rule skeptic
6) Who would you want to defend you if you were charged under Part 5.3 (Terrorism) of the Commonwealth Criminal Code — Professor Charles W. Kingsfield Jnr, James T. Hart or Horace Rumpole? Explain.
I would choose Horace Rumple to defend me. He has a history of tackling a wide range of legal cases. His cases range from simple cases to more complex cases making him qualified to address a case involving terrorism.PART D
1) What are the basic concepts that make up law and economics? How does Coase differ from Posner?
The law of economics is the merging of economic practice into the rule of law. Most of the principle arguments are derived from the area of philosophy. The creation of the Tort law looks at issues such as liability, ownership and contracts. Coase differs from Posner in that he states that the government should allocate full control of property to the public. This will in turn encourage free trade enabling the decongestion of the market. Posner places emphasis on the judiciary and the power it has to alter judgments. He states that the judicial body should be independent of the government of proper distribution of property and property rights are to be achieved.
2) How does Coase’s theorem explain legal relations? Does justice feature in the analysis?
The Coase theorem deals in the issue of property rights. He states that property rights should be assigned to individual parties removing the responsibility from one are. This will deregulate the system which in turn would provide more efficient management of the market. Justice features in this theorem in that granting the society there right to own property ensures that their protected from more influences parties.
3) Explain the basic principles of Marxism.
The principles of Marxism state that the society is divided into people who differ in ideologies. This is defined by the people who hold power in terms of numbers and the people who govern the state. This conflict of interests leads to the creation of alternative laws that suit the needs of each group.
4) Do all Marxist legal theories agree that law is incapable of acting separately from the economic base of a society?
Yes, this is one of the laws that make up the principles of Marxism.5) What would Marx say happened in Kerrigan v the Commonwealth from The Castle? What would Posner say?
Carl maxes principles mention that there is a conflict of interests in any society. The natives were interested in saving the land while the government wanted to sell the land. He would thus not agree with what happened in that the government used their position in the society to alter the law to suit their needs. Poster would insist that the government respect the rights of the natives. This would be made effective through the establishment of a proper judicial system that would protect the rights of the natives.
6) What world would you prefer to live in — Spielberg’s Minority Report or Stich’s The Castle? In which world do the economically disadvantaged get justice?
I would prefer to live in Spielberg’s the minority report. The fact that the government can prevent an occurrence from happening due to their ability to see the future is ideal. Despite the fact that it questions the existence of free will, the economy will be well served if the government had the ability to project a future occurrence and rectify the issue before it affects the whole economy.