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Jurisprudence - Essay Example

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Jurisprudence

ral law perspective, laws are intended to enforce moral codes.2 Thus if, the lawyers and judges are required to apply and interpret natural law, it would be up to them to determine that which is just or unjust. The main question is therefore whether or not lawyers and judges are required to apply and interpret positive or natural law.
Positive law is perceived as the antithesis of natural law which in turn concerns itself with moral, religious and political ideologies.3 Therefore in the application of natural law, judges and lawyers would certainly occupy themselves with that which is just and unjust. Theorists have long debated what law is and what its functions are. For natural law theorists, laws reflect moral codes and social consensus as to that which is just and unjust. For positive law theorists, law creates and sustains social order by establishing legally binding rules governing social interactions and for the resolution of disputes.4
Certainly lawyers represent clients who have civil disputes, or clients who are charged with criminal offences and they argue in favour of their clients or the state. In reality, these arguments turn on the letter of the law and do not involve arguments about that which is just or unjust. Likewise, when judges determine the merits of the case, they refer to the law to support the rationale for arriving at a particular decision. Likewise in criminal trials where jurors determine the facts, they are also instructed as to the law before they are retired to deliberate. In this regard, it can be argued that judges and lawyers are charged with the responsibility of applying and interpreting the positive law and thus they are not concerned with questions of that which is just or unjust.
Moore argued that positive law is the guiding principle in the interpretation and application of law as it directs courts toward a uniform approach to law.5 In this regard, a positive law approach to law is necessary for ensuring certainty ...Show more

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In this regard, law is designed to resolve disputes and is not geared toward deciding morality.1 Thus, positive law theory, unlike natural law theory relies on the authority of…
Author : camilareichert
Jurisprudence essay example
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