Answered You can hire a professional tutor to get the answer.
Create a 8 page essay paper that discusses Duty of the Court and its Interpretation of Legislature.Consequently, the unnecessary strain that is being imposed on judicial system is making judiciary to
Create a 8 page essay paper that discusses Duty of the Court and its Interpretation of Legislature.
Consequently, the unnecessary strain that is being imposed on judicial system is making judiciary to do the work of the legislature. Ernest Bruncken quotes Vandereycken about the three stages in the development of judicial interpretation as the literal state, logical stage and the positive stage. The interpretation of significance finds in logical and positive stages as logical stage considers the will of lawgiver and respect for it.
Whereas, the positive stage the law can be seen as the product of economic and social forces working through law giver and finding expression accordingly. Hence, in this case the question about the power and duty of the court to travel outside the law on a voyage and discovery comes to the fore. The metaphor in the above sentence deals with the nature of interpretation that deviates from the original meaning and logic of the law considered. Hence, in the context of court interpreting the law in positive stage, the exigencies of social life will be the sole consideration of the court (Ernest Bruncken, 2009).
Hart's theory and concept made greater impact on contemporary positivism as he applied the radical insights of the new linguistic philosophy. According to Tebbit Mark (2000), he explained the central problems of jurisprudence with sound theoretical footing and tried to do simplify the complexity of law. As Hart acknowledged the value of Bentham and Austin's efforts of clarification and tried to expose the weaknesses of classical common law, he tried to establish the power of Courts to go beyond the intentional meaning of the law to interpret according to the social situations. As he expressed reservations about some areas of law as serious obstacles in the path of genuine understanding, he viewed the interpretation of courts about the law as the articulation of pre-existing good. Hart disagreed with Hobbes and Austin about the positive form of command theory and supported the revealing of true explanatory strength. The reason for rejection of command theory by Hart is that it did not reflect the reality of any possible or actual legal system and its explanatory power was limited thus confining the courts to certain points while interpreting the law. In that manner he supported the power and duty of court to interpret the law according to social situations. While stating his concept Hart constructs two effective arguments. First about the essence of law that purports to explain and thus stated that the rules cannot be orders or commands. As he felt that the rules are the ones, which facilitate social transactions, the interpretation of courts plays an important role in applying the law to various social situations thus giving the power to court to go beyond the concept of the rule in law. The second argument is about the distinction between types of legal rules that talks about analysis of social practices. As he pointed out that concept of an accepted rule is missing in Austin's analysis, Hart supported the sophisticated understanding of the social practice following a rule (Tebbit, Mark (Author), 2000).
The important aspect in Hart's argument is that the rules in the law are open textured. Hence, Judges have to fill the gaps by their discretion. Hence, he
