Jurisprudence- Critical Discussion of the Speluncean Explorers

Topics: Law, Legal positivism, Natural law Pages: 3 (1044 words) Published: April 8, 2013
As a presiding judge in the case of the Speluncean Explorers, my verdict will strongly relate to judge Keen’s opinion. I find the defendants guilty for the murder of Roger Whetmore. The statute states that “whoever shall wilfully take the life of another shall be punished by death”. As a positivist, the law is unambiguous and direct. Firstly what is positivism? According to positivism, there is nothing intrinsically moral about the law. A law enacted by a legislature can be evil and immoral; there is no fundamental connection between the two. Whether what they did was right or wrong is not a matter for a judge. A judge is educated and skilled to discern legality from morality. According to John Austin, legal positivism is the actual continuation and content of the law depending on its social criteria and not its merits. The law is a matter of what has been ordered or decided. It’s referred to as a social construction. Legal Positivists believe that: (1). there is no necessary connection between the law and morality. They do acknowledge that moral norms and standards exist however, the law overpowers morality. (2). Argue that the only valid law is the written law and that those laws are correctly passed by parliament. Judges have no right to impose laws as they are not elected in office to do so. The law has to be written down so we know the standards to be held. (3). the content of the law does not depend on its merits, it is valid irrespective of it being good or bad law. Legal Positivists are only interested in its existence. Chief Justice Truepenny believes that if a law is unjust then parliament will hopefully amend the law. This is known as executive clemency. There is a problem with this because judges are not in office to make new laws. This is directed to the Chief Executive to address the executive council with the matter. The reason for my opinion has to do with the strong influence of Judge Keen; yes I will be ruthless and unforgiving for the...
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