Jurisprudence. Essay

2254 words - 9 pages

Answer both parts A and BA. What approach would Prof. Dworkin take to the issue dividing the majority and the dissent in the joined cases before SW v United Kingdom CR v United Kingdom?B. How might a legal positivist respond to Prof. Dworkin's approach?From the beginning of the creation of civilised societies man has felt the need for the creation of a set of rules that will govern his society and allow the smooth everyday living in them. Since early societies could only be ruled by the sword or by God it is evident that the first set of rules created by man were based on religious guidelines. As societies evolved into more complex and sensitive structures, so did the needs of the people living in them. Therefore the old religious rules had to be upgraded into new rules which would cover a broader area of everyday life and which were usually based on experiences and moral and ethical rules of society.Modern law has now developed into a mixture of a clear legislative rule and its interpretation by the judicial. On this matter, two schools of thought have had a great impact, Natural Law and Legal Positivism. A third school of thought is the one developed by Professor Ronald Dworkin and is described as the Intermediate Theory. Professor Dworkin's is said to belong to neither of the pre-mentioned schools of thoughts as he is not a Natural Law theorist but his theory is critical of Legal Positivism. Since verdicts given by modern courts of law are not solemnly based on fixed legislative statutes but also on the judiciary discretion, there is much discussion to be made on the different views on each case. In this case we shall examine how the theories of Professor Dworkin and those of Legal Positivists apply in cases where there is controversy as to the law itself and its interpretation.Part A.In the joined cases of SW v United Kingdom and CR v United Kingdom before the European Court of Human Rights , the issue was whether sexual intercourse in a marriage could constitute a rape if it happened without the consent of the wife. Adding to the problem faced by the court was the fact that there was no clear law on the subject because at the time when the incidents occurred, sexual intercourse was considered part of the marital duties. The argument therefore was whether the principle that a man cannot have sexual intercourse with his wife without her consent existed at the time of the two incidents and furthermore if it did, can it be applied on these two cases or is it a retrospective punishment. The majority based their decision on their view that at the time when the offences were committed the relevant law stated that the defendants' actions were unlawful. On the other hand, the dissent was of the view that the existing law at the time of the offences did not constitute the defendants' actions unlawful and that they were simply being punished retrospectively because of social morals and ethics but not according to the law.When considering Professor...

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