What Makes the Rule of Law Legitimate  Term Paper

  • Length: 6 pages
  • Subject: Business - Law
  • Type: Term Paper
  • Paper: #4948011

Excerpt from Term Paper :

Rule of Law Legitimate?

What exactly is Law but a well-known and legitimate Profession? According to Oliver Wendell Holmes Jr. In an address made to the students of the Boston Law School in the year 1897, a law student must remember certain important points when embarking on a study of law, and he stated that the student must be both pragmatic and also specific. He also said that there are some individuals who feel that the Law in itself is a mystery of sorts, and obscure in its ways, and its various twists and turns, but the fact is, Law is something that those people who are studying it do in order to be able to appear before a judge, or to prevent certain people from having to appear in a Court of Law. Therefore, if one wished to study the Law, then perhaps it would be good to peruse certain important principles that would serve as the background for the study of this profession, also known as 'systematized predictions'. (Holmes, 3)

Maybe these principles would help those men who would like to use the Law as an instrument on which to base their 'predictions' of the future. There is an ideal that is as yet unattained by the persons in this profession, and this is that most people do not understand its limits, and therefore, as a result, the boundary between morality and Law is often broken without compunction. For example, a bad man has his own reasons to avoid the police, and this shows the practical difference between the law and morality, the same as a good man, but for the bad man, the distinction between morality and law is slim. However, this is not to say that this is a cynical view; the law is indeed a witness to the moral fiber of a human being, and the history of law reveals this fact with clarity, and when law is practiced, it makes "good citizens and good men." However, since most of law is encased in language that is not easily comprehensible, it makes it lapse into something akin to fallacy at some point, and this must be avoided. (Holmes, 3)

There are also other forces that control and determine the growth and the content of law, and these are that there are certain fallacies involved, like for example, the only thing that works within law is 'logic'. In general, one assumes that, for example, when one thinks about the Universe, that there is in fact a quantitative relation between every phenomenon that occurs, and if there isn't a relation of this kind, then it would be a miracle, that transcends cause and effect, and becomes something outside our comprehension. Therefore, it would be better if one were to go about it rationally, and in the same manner, when one would initiate to think about Law; one must be able to think that it is the result of a logical development, and not derived as a miracle. (Holmes, 7)

At the same time, one must be careful while analyzing that this is not a mathematical problem, with a single right and a single wrong; once a judge was overheard stating that he would make a final decision only if he was absolutely sure that he was right; even though this type of thought is natural, it is not really apt. During the study of law, students are expected to use logic in their studies, and the related processes of analogy, deduction, and differentiation, and the basic human longing for certainty is satisfied thus, but the real fact is, this is an illusion. (Holmes, 4) The development of law is a process that has been going on for thousands of years, and following a sort of spontaneous growth. Most of the time, it was but an imitation of what happened the generation before, and this is how it proceeds, because, after all, imitation is the best form of flattery, and what our forefathers had said applies today, and tomorrow as well. (Holmes, 7)

When an individual, for example, wants to find out exactly how a particular law originated, all he does is refer to a Year Book, where what his forefathers had stated would be recorded, and this would give him the answer. Therefore, History is a part of the study of Law. It is also important that the student of law gets a liberal view of law, and this means that he must attempt to get to the very bottom of the subject. Since 'theory' has also improved dramatically over the past generations, it is easy for the student today to refer to the theory available to him. He must also use his imagination, and not simply concentrate on 'making money', although this is also very important. (Holmes, 7)

There must be a certain process of 'reasoning' as well when studying law. In case one desires to study the Statutes of the Constitution, then one must use all his powers of reasoning. However, the mechanism of the process of legal reasoning is often covered up be a pretense, and this must be avoided at any cost, the pretense being that the law is basically a system of known rules that have been applied by the judge. (Levi, 1) One must use the process of reasoning by example, instead, and this means that one must use the three-step process by which one first finds the similarity in different cases, then the rule of law in the first case is observed, and then made applicable to the second case. This is the basic method of reasoning within law, and even if it does have imperfections, this is how it is done. Rules do change, but the dynamics of law shows that the basic spotting of the differences or the similarities in each case is important, and it is the duty of the judge to apply these to the case that he is at present judging. (Levi, 2-3)

However, he also has the right to judge what is important to this particular case, and not blindly follow what the judge in the previous case ruled. Therefore, even though the legal system is a set of rules, it does not mean that known rules be applied to diverse facts. Rules change as the new rule is being made, and facts change when new facts are being established. New situations rise everyday, and people's wants change everyday, and there must be space within the law to accept these changes and wants of the people. However, the processes by which these changes are made are also important, and it must not be ignored, and since the parties involved, as well as the court take part in the law making process, a lawyer would be representing much more than the litigant. (Levi, 2-3) In fact, at times, the Court in the United States, has commendable freedom in applying of a law or a statute, and at the point when he is able to decipher the similarity or differences in the event of a prior and a present existing case, at that time, the case can be decided and the judge, although he cannot feel free to ignore or move beyond the results of the previous cases, thereby closes the case. (Levi, 7-8)

In a constitution, it is different, because it basically deals with the ambiguous ideals of the community, and deals with a set of satellite concepts that also use reasoning as examples. All this does not mean that law is about comparison of cases and not about legal concepts; past words have their own importance in today's life. As Judge Cardozo put it, "the word starts out to be free thought, and ends by enslaving it," and when a word is accepted, it turns into a legal concept, and the reasoning must be deductive. (Levi, 8) The 'Worship of the Constitution" continues unabatedly, to this day, and this type of worship remains unchallenged to this day, and when Paine was urging that America must declare that she was independent of Great Britain who was controlling her, he said that it was important a 'Continental Conference' must be held to discuss the making of a Constitution. (Corwin, 24)

When a lawyer is required to argue a case or to advise his clients, or to draft laws, he is faced with several problems of a technical nature, and this means that when there is a general agreement between members of the profession, about which argument would be the most relevant, and then he would be able to face it better. When the problem is not technical, then he would find it difficult to proceed, and this is because of the fact that at times, for example, he may wonder whether or not a law is 'fair' even though he knows that it is a written law. In the same way, another issue is that certain conceptual puzzles may occur when the real meaning…

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