Positive Philosophy in Law
Thomas Aquinas and Hans Kelsen held that the law enforced by human courts is indeed a positive law. Legal philosophers have since come up with a flurry of arguments claiming that positive law must have its source and content. These philosophers were and are of contention that the court's core mandate should be that of harmonizing heterogeneous sources of law into a coherent body of law for ease of administration of justice. Sources of law can be drawn from the ancient Roman law, legislation, custom, precedent and equity, raw materials processed by courts into genuine law, statutes, precedents, and opinions of experts. With regard to content, law should be enforced to administer justice (Murphy, 2005).
This paper seeks to list some factors that a judge in a state's criminal court system would consider before sentencing burglary/theft offenders, people suspected to have committed aggravated battery, or those found in possession of marijuana and prescription painkillers without a prescription.
Before sentencing individuals suspected of engaging in criminal; activities like burglary, aggravated battery, possession of marijuana and prescription painkillers without prescription, I will have to consider factors outside their control. Some of the factors I will look at will be reason, propensity, behavior setting, structural characteristics, resources,...
Criminals are said to engage in antisocial activities because of their desires like gain,
security, or
respect (Lahey, Moffitt & Caspi, 2003). However, before handing down judgment, I will have to factor in the understanding of the act and the situation. Take for example; an individual who wants a CD player or
money believes that he could obtain them by breaking into three houses and stealing electronics and money. He however does not see an act of theft as a way in which he could obtain the above mentioned items. It will be unfair to deliver a blanket judgment on such offenders without factoring in the psychological context or conception and
labeling of the facts understood.
As much as criminals may chose to engage in
crime by choice, the choices they make are at times an expression of an individual norm or habit, the context within which they operate, and the immediate social situation like the financial and social resources.
Peoples' readiness to react aggressively has been advanced as one of the reasons behind
engagement in crime. Unlawful acts like possession of marijuana and engaging in battery are attributed to cognitive and emotional characteristics that determine
morality and self-control (Lahey, Moffitt & Caspi, 2003).
The law is very clear on the kind of sentences that should be handed down to individuals found…
