Legal Positivs and the Rules of Law Essay Example | Topics and Well Written Essays - 1250 words

Legal Positivs and the Rules of Law - Essay Example This provides for the security of the people as manifested by the institution of a government willing to be able to enforce it for the benefit of the majority of the population at the very least. Law and morality are destined to be intertwined for they serve the same purpose and to establish a thought of segregation in a positivist perspective would essentially diverse any of its very nature. Any law, even if it does presuppose to be primarily lacking of moral substance finds the very same although in what may be a distorted moral view of the few to rendered it into being. The source of any law must come from a moral perspective and this is inculcated therein by spirit. The discussion on the Utilitarian proposition on the distinction of law and morals has long found its way to stimulate conversation and debate over the great legal minds and has spanned centuries in the process. Austin said in his book ‘The Province of Jurisprudence Determined’ that â€Å"A law, which ac tually exists, is a law, though we happen to dislike it, or though it varies from the text, by which we regulate our approbation or disapprobation† (p.184). This has then on been the subject of reference by discourse from other authors in the legal profession. This is perhaps another source of the thesis found Hart’s article of his distinction between what law is and what it ought to be. Thus from this discussion of Hart we were introduced to the exemplification of the German woman who has divulged to the military her husband’s resentment to Hitler which was a source of punishment for the latter by virtue of a statue. Later on the wife was found guilty by the appellate court under the German Criminal Code of 1871 for denouncing her husband to the German courts (Hart, p.2). This law clearly antedated the woman’s act and the decision can be perceived to be fuelled primarily by the moral institution of the law by the court. But what concerns Fuller on Hartâ⠂¬â„¢s argument although the same was not an absolute positivist in the same level as Austin, was Hart’s position on a mere intersection of law and morals instead of clear convergence of the two. He then answered in retort and quite aggressively that the content of Hart’s article is confusing in the same way that the writer may have been just as confused of his hypothesis himself (Fuller, p.630). But despite this criticism, Hart’s one rhetoric finds its way to be an effective question that permeates through. Consequently, he asked â€Å"Why should we dramatize the difference between them?† (Hart, p.3). Why indeed? Throughout the history of this debate it is fathomable that the minds behind the idealization of positivism such as Austin have parted their wisdom at a different day and age while the Utilitarian philosophical suggestion was a way of being. This enables for the advocacy toward strict adherence to the law devoid of moral rationalization. A law i s a law and as such must be followed to the letter. This renders the same to be an object of absolute prowess that could find its fault in the legislation process and the adverse outcome of which to be experienced during its actual enforcement with the weight of the law to be imposed by the courts of justice tasked to interpret and ultimately apply the law as worded by the legislative body. A law as a positive manifestation is a truth which may not be rendered otherwise. This

Compare and contrast the Right to Remain Silent in the US and the UK Essay

Compare and contrast the Right to Remain Silent in the US and the UK - Essay Example On March 13th 1963 Ernesto Miranda was arrested in Arizona and taken to the Phoenix Police Station where he was then identified by the complaint-filing witness. Without being notified of his rights, Miranda was led into the interrogation room and questioned by police officers. In two hour’s time the officers had succeeded in obtaining a written and signed confession from Miranda. The signed statement claimed he signed it â€Å"with full knowledge of my legal rights, understanding any statement I make may be used against me.† When the case went to trial the prosecution used Miranda’s statement of confession against him and despite objections from the defense, the judge allowed for the confession to be admitted as evidence. Miranda appealed and the Supreme Court of Arizona ruled his rights were not violated because Miranda never requested council to be present during questioning. Miranda’s case went before the Supreme Court who acknowledged Miranda was never informed of his right to council or the right he had not to â€Å"be compelled to incriminate himself.† The Supreme Court ruled since Miranda did not have full knowledge of his rights all statements made by Miranda were inadmissible in court since they were not legally received. Furthermore the Supreme Court justified that since interrogation is intimidating, a suspect must first be given their rights to lessen the intimidation they experience. The Miranda Rights must be read before a suspect is to be questioned or interrogated in any way. The Miranda rights are read as followed: â€Å"You have the right to remain silent and refuse to answer questions. Do you understand? Anything you do say can and will be used against you in a court of law. Do you understand? You have the right to consult an attorney before speaking to the police and to have an attorney present during questioning now or in the future. Do you understand? If you cannot afford an attorney, one will be appoint ed for you before any questioning if you wish. Do you understand? If you do decide to answer questions now without an attorney present you will still have the right to stop answering at any time until you talk to an attorney. Do you understand? Knowing and understanding your rights as I have explained them to you, are you willing to answer my questions without an attorney present?† (essortment.com) The 5th Amendment to the US Constitution’s Bill of Rights is â€Å"No person shall be compelled in any criminal case to be a witness against himself or be deprived of life, liberty or property without due process of law.† The 6th Amendment Right to Counsel Clause coincides with the 5th intricately and was instituted in 1964 from the case of Escobedo vs. Illinois by the Supreme Court’s insistence that police allow council to be present during questioning. â€Å"In all criminal proceedings, the accused shall enjoy the right to have the assistance of counsel for h is defense.† (flexyourrights.org). In historic times, such a notion as the right to silence did not exist. In the 18th century English Criminal procedure made it impossible for a suspect of a crime to protect themselves from self-incrimination. Common law refused a criminal the right to be defended by a lawyer therefore persons suspected of a crime had little choice but to speak for themselves because no one else was going to. Refusal to speak and answer questions was quite the same