Out of Hart, Dworkin and Altman, who provided the best understanding Essay

Out of Hart, Dworkin and Altman, who provided the best concord of juridic discretion What implication do their position have for the legitimacy of judic - Essay Example by and by Roper says he would cut down every law in England that kept him from pursuing and capturing the Devil, more(prenominal) answersOh And when the last law was down, and the Devil turned round on you, where would you hide, Roper, the laws all being flat This country is planted thick with laws, from coast to coast, Mans laws, not Gods And if you cut them down, and youre just the man to do it, do you really mobilise you could stand upright in the winds that would blow then Yes, Id give the Devil benefit of law, for my own safetys interestingness (Bolt 46)In other words, from Mores perspective, the protections that the law affords everyone are worth the protections that the law offers the accused, no matter how obvious his or her guilt may seem. More clearly advocates a fairly literal application of the law an d would lour on a great deal of legislation from judicial benches.More, of course, lived four centuries ago. Legal philosophy has changed a great deal since then. One movement that has been particularly influential in the past century has been the advent of legal positivism. This idea asserts a fundamental difference between law and morality. By extension, this idea suggests that thither is inhabit for judges to act as social activists, and use rulings to ameliorate the damage that the gaps between the laws as they stand and the ethics of particular situations can wreak. H.L.A. Hart, Ronald Dworkin, and Alfred Altman all have perspectives on the proper role of judicial activism and discretion.Dworkin and Hart come in on basically opposite sides of the argument. While Dworkin overtakes the law as a system that always provides a correct answer, through his Theory of Adjudication (Gaffrey 22), Hart asserts that laws themselves are disperse-textured and that there is room for judge s to use discretion to plug the gaps between legal rules and morals (Bix 52). Altman takes a middle view based on his idea of truncation, which basically refers to a judge knowing when to apply the law to its roughly literal extent, and when to abridge its extension (Altman 5). Given the liberal ideals of the modern rule of law in the join Kingdom, it would seem that this middle way provides the most room for compromises in cases where compromises are clearly needed, without permitting judges to manufacture too activist in their rulings.Harts concept of legal positivism divides the law into two categories primal, or duty-imposing, rules, and secondary, or power-imposing rules. Primary rules confer rights or set obligations criminal law is made up of only primary rules, for example. Secondary rules inflict the ways in which primary rules are made and enforced. An example would be the rules that dictate the makeup of Parliament, and the rules governing the enactment of acts in Pa rliament (Bix 51).One of the most crucial elements of Harts theory is the open texture theory. Hart uses the term open texture to mean that there are some situations in which judges should apply discretion when there is a case that may be said to square up outside existing rule of law. He supports this assertion with three reasons. First, language itself, which comprises laws, contains many loopholes, just by virtue of its very nature. While words in a legal rule may tumefy