Tuesday, August 6, 2019
Law in the light Of Three cases Essay Example for Free
Law in the light Of Three cases Essay Framing his arguments on the conception of the Ã¢â¬Å"original understandingÃ¢â¬ as basis, Bork argues that this theory is the best and sole method which can be utilized in order to resolve and reconcile the perceived conflict that exists between what he calls as the Ã¢â¬Å"MadisonianÃ¢â¬ or Ã¢â¬Å"counter-majoritarianÃ¢â¬ dilemma. This problem primarily concerns the judiciary of creating law bereft of popular approval or consultation. The reconciliation between the two opposing poles according to Bork can be further resolved through the guidance not only of the basic functions of the branches of the government but, far more importantly, also of the FramerÃ¢â¬â¢s original understanding of the Constitution of the United States of America. Bork emphasizes that it is not essentially the role of the courts to legislate or create laws from where they are primarily positioned and that the courtÃ¢â¬â¢s primary duty is to adjudicate. Moreover, he also argues that the courts should not only practice restraint in arriving at legal decisions over cases but that they should also make manifest of Ã¢â¬Å"neutral principlesÃ¢â¬ quite apart from ad hoc pronouncements or subjective valuations or judgments which Bork sees as insufficient. In essence, the theory of originalism within the scopes of the constitutional interpretation by the U. S. is a conjuncture or a family of theories that reinforces the perception that the Constitution has an unchanging, hence fixed, and comprehensible meaning right at its establishment or the time of its ratification. It is also a theory of law that is formalist in nature and is closely related with the theory of textualism. The theory of originalism is currently popular among the political conservatives of the United States political system that is directly intertwined with Robert Bork as well as Clarence Thomas and Antonin Scalia although there are also quite a number of liberals who support and make use of the arguments being put forward by the theory of originalism. For the most part, originalism is conceived as a family of theories whereby a set of interpretations, though separated by fine distinctions, are nevertheless held together by their theoretical and argumentative support for originalism. The theory of original intent suggests that originalism is the view that argues that the interpretation of a written constitution is held to be firmly aligned with the primary intentions of those who drafted and approved its legality. This interpretation based on original intent has so often been used to disapprove unpopular groups such as gays and blacks during the middle parts of the twentieth century from acquiring civil liberties. The reason to this is that the original intent of the authors or the Ã¢â¬Å"foundersÃ¢â¬ of the constitution did not practically intend explicitly or implicitly either for gays or for blacks to be duly given with the same rights that white males enjoy. On the other hand, closely related to textualism is the notion of the Ã¢â¬Å"original meaningÃ¢â¬ which holds that the precise and rightful interpretation of the constitution should be entirely founded on what the ordinary meaning of the written texts in the constitution would have been during the year or the time when it was drafted and ratified. Although these interpretations of the theory of originalism may not necessarily come into full agreement on the use of the terms expressed in the constitution, they nevertheless share the same view that there is an authority that exists with the ratification of the constitution that should serve as the backbone in extracting the meaning of the constitution. The very distinctions correspond to the intentions of the authors, the plain meaning of the written texts in the constitution, and the comprehension of those who authored the constitution or those who ratified it. Paul Brest held contradicting arguments to those that are being proposed in the context of originalism. Brest maintains that the theory of originalism is itself unworkable for the reason that it is practically not feasible to identify and aggregate the intentions of the framers of the constitution whose numbers come in multitudes. He further maintains that the arguments being put forward by originalism is difficult to be pursued and be delegated to current issues that beset the legal system. Frederick Schauer, as a proponent of legal formalism, may very well suggest that the substance of laws is not an area of concern for the judges to delve into but is rather the function of the legislative body in a democratic government. The division between policy or normative considerations and legal reasoning, as put forward by formalism, highlights the issue revolving around the attempts of justices to determine the legal valuations of statutes. Planned Parenthood versus CaseyÃ The constitutionality of a number of state regulations in Pennsylvania that correspond on the legal issued of abortion were put to legal test in the case of Planned Parenthood versus Casey. The Supreme Court of the United StatesÃ¢â¬â¢ lead plurality opinion maintained the right to acquire an abortion although contemporaneous to its decision is the lowering of the standards for the assessing limitations of such right which in turn nullified the validity of one regulation in favor of the upholding of the other regulations. The case in itself is divided between differing judgments among the justices and that none of the opinions of the Justices were merged or could have been merged by a majority among the justices. Moreover, the case has made clear the very substantial role of precedents in deciding the legality and outcome of the arguments in legal cases. The main precedent that has been used in the case is that of Roe v. Wade which initially recognized the right guaranteed by the U. S. Constitution to decide for and acquire an abortion as a form of liberty specifically maintained by the Fourteenth Amendment, specifically by the Due Process Clause. The course of the case posed the first challenge directed towards the courtÃ¢â¬â¢s ruling in the case of Roe that further distinguished itself as a seminal issue in the history of the abortion rights in America. On the part of the Justices who comprised the panel that will decide the merit and outcome of the case, dissenting opinions were raised and held. Part of the arguments raised by the justices who concurred with Roe as precedent suggests that the arguments raised in the Roe case were legally substantial enough to uphold the constitutionality of the provisions set forth by the Constitution. That is, the Roe case as precedent addresses the contentions of the complainants in the manner in which prior court rulings are maintained and, hence, determine the legality of the case inasmuch as the contentions to the legal rights are provided and preserved. On the other hand, part of the panel of justices dissented on the substantiality of the constitutional provision by arguing that the Roe case, when used as a precedent in the case at hand, was incorrectly decided and, hence, cannot be considered in extracting the necessary legal remedy in the case of Planned Parenthood versus Casey. Rawls and the principle of fairness Central to John RawlsÃ¢â¬â¢ conception of justice is his treatment of the concept of justice as Ã¢â¬Å"fairnessÃ¢â¬ . From this main precept, Rawls continues his argument by expounding on the circumstances that will give rise to these fair conditions. Before centering oneÃ¢â¬â¢s attention on these circumstances, it must be noted that Rawls primarily makes use of the veil of ignorance in determining the principles of justice that the society will eventually adopt. These first principles of justice will then serve as the basis for the legal aspects of the society such as the creation of legislative proclamations, precedents, drafting and ratification of the constitution, legal sanctions expressed in these written codes of law among many others. At the onset of the determination of the principles of justice, Rawls suggests that the members of the society will convene in order to determine which principles are to be accepted as the first principles. The convention of the individuals is made on equal on grounds on several bases. First is that the individuals will be deprived of general knowledge on matters which will allow them to obtain a relative advantage over other people in the convention. This limiting of knowledge is met through the hypothetical veil of ignorance that serves as the Ã¢â¬Å"veilÃ¢â¬ which strains out specific knowledge among them. The specific types of knowledge Rawls refers to are those that revolve around the context of the age, race and social status among many others. The knowledge of these specific factors, Rawls claims, lead to an unfair advantage of some over the rest for the reason that it results to basic inequalities prior to the commencement of the convention of rational individuals. On the other hand, what must only be permitted are general knowledge such as the knowledge that the principles that the convention of individuals will eventually agree on will automatically subject these people to the scopes and limitations set forth in these principles and other sets of principles that can be derived from them. Eventually, the individuals in the convention will agree on the first principles of justice they are able to decide. Conversely, this is the crucial part whereby fairness is met. Fairness here is taken to mean that the first principles were derived under fair conditions to the individuals and that the principles, consequently, are fair as well. From this, it is claimed that the moral obligations that are to be extracted from the principles of justice are those that the individuals will not disagree on for reasons of injustice or unfairness. The reason behind this is that the veil of ignorance guarantees fair conditions in arriving at fair principles thereby ensuing that the individuals will not go against the provisions of the law derived from the first principles. John Simmons, on the other hand, maintains that there is apparently the non-existence of any strong moral duty towards the law of any given society or state. Moreover, Simmons argues that moral obedience towards the constitution or the law in general barely amounts to the premise that even in a just or orderly state only some natural duty and not all brings justification of compliance to the law. Further, Simmons analyzes and determines that RawlsÃ¢â¬â¢ conception of a natural duty of justice (all must build and maintain just institutional arrangements) as a justification for the natural duty to obey the law is inadequate to bring about a strong moral duty towards the law. The arguments of Rawls primarily fail for the reason that Rawls is unable in thoroughly explaining the reason behind why even just institutions in the domestic arena ought to acquire privileged moral authority over individuals in the state. Conversely, it should be noted that if indeed there is the existence of natural duty towards justice, then the question remains as to why this duty would have to arrive at the fences of every state or nation.