Negative and Positive Positivism Law

Question: Discuss about the Negative and Positive Positivism Law. Answer: Introduction There are five judges who sat to hear the case of the Speluncean Explorers. Their judgments are aligned to their various theoretical areas of laws. The judges, in this case, are The Chief Justice; Truepenny, Keen J, Tatting J, Handy J and Foster J. In the paragraphs below, I will discuss the judgments of Keen J, Hardy J and Foster J which I agree with. Views herein are not altogether in accordance with the traditional theories of law. I will highlight each of the arguments of the judges and give my opinion there below. Keen J, in this case, is a positivist. Positivism argues that laws are not a construct of morality and that decisions are to be made based on a set of rules that have been made to govern individuals. Therefore, provided there is a law in place that governs an individuals behavior there ought not to be an alternative to being taken other than the one provided therein. Handy J, on the other hand, is a realist. A realist uses common sense in assessing situations and making a decision. In other words, it is the common sense which justifies a decision that ought to be taken. Finally, Foster J adopts a purposive approach in dealing with the issue at hand. He does not subscribe to a particular school of thought and he approaches the issue at hand in a multifaceted approach. The judgment of this learned judge well reasoned. He seeks to strictly apply the law of the land in the determination of this matter without taking into consideration factors such as morality or common sense. He purely addresses this issue based on the law enacted. The issue that this judge addresses is whether a life was taken intentionally or not. If the answer is yes then he upholds the conviction therein. It is his opinion that judges are faced with difficulties in deciding on cases when morality and laws are incorporated. Therefore, judges ought to put their personal views and opinions aside and decide on the issues based on a codified set of rules enacted by the legislature. It is true that different individuals have different morals. Morality varies from one individual to another, therefore if cases are to be decided based on morals there would be no harmony or agreement on whichever issue that goes to court. Keen J reiterates the role of the judiciary when interpreting statutes. He attacks the argument by Foster J which according to him does not promote the purposes that were intended by the legislature. An interpretation that seeks to permit what is clearly forbidden by the law is ill informed and is a wrong interpretation. The judiciary when interpreting a statute should try to establish the purpose of the legislature. In doing this, the courts should endeavor to give effect to the intention of the statute and not come up with a principle that was not intended to be in place. Keen J herein upholds the conviction. Positivists generally argue that judicial discretion is not always available in every case especially where the law clearly enumerates what ought to be done. Judicial discretion is only applicable in instances that the law is silent and in isolated instances. In the subject matter at hand, the judicial discretion is inapplicable since the law of Commonwealth categorically and without ambiguity outlaws murder. Hardy J as a realist holds the view that wisdom ought to be applied in such an instance as this. It is his opinion that governance entails understanding what the masses want and responding to it accordingly. He discusses publicity and is of the view that public opinion ought to be considered in deciding on the outcome of the case. In this case, the public believed that the accused persons herein deserved to be pardon. Public opinion is a key factor that ought to be considered when deciding a case. Whenever there is a public outcry the courts have always taken into consideration the wishes of the people even if it is not legally permissible. Hardy J in his judgment sought to demonstrate that public opinion always influences court decisions. He does not agree with his fellow judges who hold the opinion that emotional public opinion is irrelevant and the case should be decided based on the written law. The learned judge herein demonstrates how emotional public opinion has in several instances been incorporated by judges in thwarting the case and deciding on cases. Generally, Hardy J recommends that common sense is applied in the determination of this case, he recommends for setting aside of the conviction. Common sense or wisdom should be given a second thought in this instance. There was no other means of survival other than sacrificing one of their colleagues through the casting of a lot. Common sense dictated that in order for them to survive from the starvation that threatened to kill them, one of them should be killed and eaten. The jury should, therefore, give a second thought to this line of argument before deciding to convict since it makes a lot of sense that the public seem to be in agreement with. Laws as interpreted by the realists are not supposed to be interpreted in its strict sense. Realists are of the view that law has gaps and ambiguities that would need a realistic perception in its interpretation. Therefore, in order for justice to be served at the end of the day, the jury should not be confined to a formalistic approach to issues at hand but should rather seek to isolate in terms of their interpretation role each and every case. As indicated there above, Foster J takes a rather broad perspective in handling the issue at hand. The first argument that he advances is that it is the law of Newgarth that is up for determination. He believes that the law of the land does not necessarily apply in this matter. If the law is applied, obviously the explorers would be convicted of murder. According to Foster J, the explorers in this instance were not within the jurisdiction of the commonwealth and hence commonwealth laws are not applicable. Foster J believes that positivists law can only be applicable in situations where there is human existence. In other words, positivists laws are meant to foster coexistence among the members of the society. Therefore where the coexistence is rendered impossible then the law of the land is rendered irrelevant too. Instead, it is the law of nature that governs the individuals. The law of nature presupposes that the governing laws should promote coexistences and where the coexistence is impossible the governing laws would not necessarily be incorporated. In this instance, it is justifiable and it makes sense to sacrifice one of their colleagues in order for survival to be ensured. Moreover, Foster J states that the law of contracts permitted the explorers to cast the lot. Given the fact that no one was compelled, the explorers seemingly exercised their freedom to contract and hence the law of the land should not interfere or look into their terms of the contract. Foster J continues his argument and on his proposition of laws being applicable, he highlights some important points. He brings out issue self-defense. It is his argument that since all the explorers would have starved and died, the act of killing one of their own was an act of self-defense which the law of the land pardons. Finally, Foster J discusses the concept of judicial usurpation where the court can come up with laws to fill in gaps that come up in relation to various issues arising that were not captured by the legislators. It is an anticipation of death that prompted the accused persons to cast the lot and consequently kill. The court herein also could come up with jurisprudence in relation to this instance since they have judicial usurpation power at their disposal. The accused persons herein are not supposed to be subjected to commonwealth laws since their coexistence was threatened and they were in a situation that the law of the land did not justify their coexistence. Even if the law of the land is applied, it would still quash the conviction since self-defense is a ground of law that is available for their defense. The argument that the accused persons were out the jurisdiction and hence the commonwealth laws do not govern them is not necessarily correct. Provided you are a citizen of a particular state you are subject to the laws of such a state. The accused persons are therefore subjects to the laws of Newgarth. Conclusion I am in agreement with the judgments and the reasoning of Keen J, Hardy J and Foster J in the case of Speluncean Explorers. The three judges belong to a different school of thoughts; Keen J is a positivist, Hardy J is a realist while Foster J takes a liberal approach to dealing with issues at hand. Keen J advocates for application of the law as it is. Public opinion should not be considered under this theory. The interpretation of the laws should only seek to promote what was the intended meaning of the legislature. Hardy J calls for common sense and wisdom when interpreting the law of the land. The argument herein is that laws are ambiguous and has gaps that can only be filled by realistic approach to issues at hand Foster J adopts a broad perspective in handling issues and interpretation of the law of the land. The broad perspective ranges from the interpretation of the laws, justification of inapplicability of the law of the land and freedom to contract. Finally it is my submission that all of the above arguments are well reason even though I do not agree on some few aspects of the ruling as argued by Foster J. However, I am totally in support of his overall arguments and the decision to set aside the conviction. I am also in agreement with judgments of Hardy J and Keen J. Bibliography Barak, Purposive interpretation in law. 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