Law Theories Karl Llewellyn Essays

Law Theories Karl Llewellyn Essays Law Theories Karl Llewellyn Essay Law Theories Karl Llewellyn Essay Under this presumption, Jerome Frank highlighted the psychological aspect of Judicial decision making when pointing out that in alliance with human nature, a Judges decision may be Influenced by such monotonous occurrences as what they ate for breakfast. Karl Lineally agreed that a Judge is able to perpetrate his own personal biases on the outcome off case. Lineally ascertained, when referring to Judge Judge Judge, or arbiter of Justice, is a lead official who presides over a court of law, either alone or as part of a panel of Judges. The powers, functions, method of appointment, discipline, and training of Judges vary widely across different jurisdictions. The judge is like an umpire in a game and S that, [w]hat these officials do about disputes is, to my mind, the law itself[2]. In this assessment, Leniencys realist views can be likened to that of Jerome Frank who challenged the notion of legal decisions as always being certain. Lineally agreed that law is not always a precise science, but did not agree that Judicial decisions are always uncertain[3]. There Is no single right and accurate way of reading one case, or of reading a bunch f cases[4]. In support of the aforementioned statement, as an example, Lineally offers two plausible structural arrangements in the handing down of a Judgment. In the first arrangement, consideration must be made, in that, the case can only maintain authority for that which Is required of the opinion to reach the Judgment. Anything else can be distinguished or unnecessary. In the second arrangement, the court maintains authority of the rule which forms the basis of judgment. In distinguishable cases, however, it may still be applied indirectly by using statements such as We here said Or That case necessarily decided Along with the rest of the Judgment which does not encompass the rule[5]. Karl Leniencys theories on legal realism first outlined in The Bramble Bush, highlighted the importance of determining whether the legal pollens of Judges are Influenced by factors outside that of the law[6]. For ten long anal, Tort ten large-scale reshaping Ana growth AT Cottrell Ana our legal , . He almost unnoticed changes [are] more significant than the institutions historic key cases[7]. It was in Leniencys belief that a lawyer should have the ability wrought training, to be able to put forward a persuasive argument by utilizing the facts of a case rather than placing the emphases on the applicable law. In Leniencys opinion, law is gradually returning to the court tradition of the 18th century as being Precedent guided and principle controlled. This concept is o pposed to that of Owen Dioxins belief which leans towards a more ordered approach[8]. There are no fixed rules of how a principle must be applied in regards to the law. In considering this, it is possible in the same case for a number of Judges to all apply the same Renville and reach a completely different conclusion. Lineally interprets this as not an evasion or departure from the true construction of the principle, but a sound use, application, continuation and development of precedent. In Leniencys opinion, the freedom in the application of law in the courts is not to be construed as twisting precedent, as this concept carries the assumption that there is only one single meaning[9]. He main thing is what officials are going to do. And so to my mind to the main thing is seeing what officials do, do about disputes, or about anything else; and eying that there is a certain regularity in their doing a regularity which makes possible prediction of what they and other officials are about to do tomorrow. In many cases that prediction cannot be wholly certain. Then you ha ve room for something else, another main thing for the lawyer: a study of how to make the official do what you would like to have him. At that point rules do loom into importance. Great importance. For Judges think they must follow the rules, and people highly approve of that thinking[l In considering the aforementioned and the influence it has on Judicial decisions, the approach does not become limited in its authority, but instead, creates a responsibility which rests upon those in other areas of the legal profession such as lawyers. Lawyers no longer act as a foundational support, but act in the interpretation of that authority[11]. The courts manage new decisions with discretion, taking into account the sense of the situation as seen by the court[12]. It is in Leniencys Judgment that the courts are operating for the improvement of the way in which the law is being applied[13]. Leniencys theory takes this into inconsideration while also acknowledging the courts role within a changing community. Lineally came to the conclusion that the variety of ways in which a principle can be applied to a case does not affect the authority of Judicial decisions. It can, h owever, encourage the construction on the facts which point to the method of application more dominantly appropriate in the case. Karl Lineally explains in his book The Common Law Tradition,[14] the context for seeing and discussing the question to be decided is to be set by and in a body of legal doctrine, including its rules as well as TTS concepts, ideals, tendencies and pervading principles. The ideas Lineally put forward were undoubtedly important and innovative, however, they have obtained a degree AT criticism. It NAS Eden argued Tanat Leniencys Ideas Tort ten most part are impractical due to the difficulty in the implementation. The system of Jurisprudence in which Lineally has put forward could possibly require a lawyer in arguing a case adequately, to go to ridiculous lengths. This conclusion has been reached in considering the effort involved in taking into account all of the possible factors affecting the outcome of a case. This is the reason Leniencys realist theories never became the precedent for viewing the law. The law has continued to be viewed as a set of rules which are consequently applied to each separate case[1 5]. It has been conveyed that the process involved in the application of case law, and the consequential possible techniques on hand to carry out such an endeavourer, are infinite. In the process of Judicial decision making, the procedure does not always work in accordance with its desired function. Notably, in consideration of this fact, there are those who can offer an understanding of whether Lineally is in fact erect in asserting that there is no single right and correct way of reading one case, or of reading a bunch of cases[16] and that a courts decision might turn on what the judge had for breakfast[17]. There are those who, in accordance with his suggestion, can add light to the argument. In each of these methodologies, comes a new implication for the role of the Judiciary and also for its scope of authority. Sir Owen Dioxins approach in comparison to Leniencys can be seen as less philosophical and more mechanical and legalistic. The basis of Owen Dioxins viewpoint resides in the assumption that the court acts to facilitate the existence of a definite system of accepted knowledge or thought and that Judgments and other legal writings are evidence of its content[18]. Unlike Leniencys creative or constructionist role, Dixon suggested that: The court and the legal system stand as a necessary foundation of any community. Indeed it may be said that the courts and the system of law are both the foundation and the steel framework, but neither a foundation nor a steel framework is ever able to do more than support a structure with stability and at rest[19]. It was in Dioxins belief that Justice is administered in accordance with the law and not because Justice constructs the law. In Dioxins view, the role of lawyers is to act as a foundation which exists in order to keep the framework steady. It can be inferred from the aforementioned that the court, and consequently the cases which pass through the courts, are already subject to pre-existing laws. There are inherent legal principles that apply to each case and the courts duty is to merely act to uphold these principles[20]. Gerard Brenna sees the situation in a different light and sways away from the revives standpoint of Owen Dioxins strict and complete legalism to acknowledge the changing circumstances which the law faces. Brenna believes that in circumstances where the elicit underlying principles of law are not enough to determine a judgment, the courts need to articulate the principles of the community which give TTY to ten law In quest. In Toweling Graders tannery, ten law, wanly NAS shaped by English Judges and later Australian, only changes in response to a changing community[21]. Eden Under Graders view, the acknowledgement of the inherent principles and their enhancing authority supports the discretion of the Judiciary when faced with new situations. This approach can be seen as an alternative to the idea of strict legalism and also the creative approach as taken by Lineally. Although Karl Lineally has been criticized for his stance on the matter, he has shown that he would agree with the statement that, Judges decide cases however they personally wish to, or however they feel at the time. Lineally has shown skepticism towards the rules by which the courts decided cases[22], and in turn the processes by which Judges are able to make their Judgments.