The Case of the Speluncean Explorers
The case of the Speluncean explorers
Student No: 2753833
Course: Law, Government and Policy
Due Date: 22 September, 2011
Date Submitted: 22 September, 2011
Word Count: 1,925 words
The case of the Speluncean explorers
The purpose of this essay is to critically analyse one of the five judgments in the case of the Speluncean explorers. There will be three main parts to this essay. First, five key aspects that were evident in the Judge’s decision making process will be summarised. Second, fundamental aspects of legal positivism will be identified and described. Finally, a critique of legal positivism will be provided utilising two main concepts from this theoretical perspective. Chief Justice Truepenny’s decision making process will now be summarised.
Trupenny used the following key aspects to make a decision on his judgement on the Case of the Speluncean Explorers. All judges must follow Laws of Commonwealth, which are set laws made to assist judges in arriving at a fair and lawful decision. This permits the judge no discretionary power in relation to the penalties that he can impose. In this case the judge had to look at the facts and use the Law of Commonwealth to decide the penalties that would be imposed on the defendants. The judge also used a special verdict to assist him in determining a reasonable punishment.
In this case the Foreman of the jury raised the idea of a “special verdict.” A special verdict is when the jury provides the facts involved in the case and leaves the end verdict for the judge to decide after considering the application of law. The Prosecutor and counsel for the defendants both agreed on this course of action, it was then accepted by the court. After the jury regarded all facts of the case, the trial judge decided that the defendants were guilty of murdering Roger Whetmore and consequently they were sentenced to be hanged.
Student No: 2753833
Course: Law, Government and Policy
Due Date: 22 September, 2011
Date Submitted: 22 September, 2011
Word Count: 1,925 words
The case of the Speluncean explorers
The purpose of this essay is to critically analyse one of the five judgments in the case of the Speluncean explorers. There will be three main parts to this essay. First, five key aspects that were evident in the Judge’s decision making process will be summarised. Second, fundamental aspects of legal positivism will be identified and described. Finally, a critique of legal positivism will be provided utilising two main concepts from this theoretical perspective. Chief Justice Truepenny’s decision making process will now be summarised.
Trupenny used the following key aspects to make a decision on his judgement on the Case of the Speluncean Explorers. All judges must follow Laws of Commonwealth, which are set laws made to assist judges in arriving at a fair and lawful decision. This permits the judge no discretionary power in relation to the penalties that he can impose. In this case the judge had to look at the facts and use the Law of Commonwealth to decide the penalties that would be imposed on the defendants. The judge also used a special verdict to assist him in determining a reasonable punishment.
In this case the Foreman of the jury raised the idea of a “special verdict.” A special verdict is when the jury provides the facts involved in the case and leaves the end verdict for the judge to decide after considering the application of law. The Prosecutor and counsel for the defendants both agreed on this course of action, it was then accepted by the court. After the jury regarded all facts of the case, the trial judge decided that the defendants were guilty of murdering Roger Whetmore and consequently they were sentenced to be hanged.
References: Austin, J. (1977). Lectures on Jurisprudence and the Philosophy of Positive Law, St.Clair Shores, MI: Scholarly Press. Austin, J. (1995). The Province of Jurisprudence Determined, Ed. W.E. Rumble. Cambridge: Cambridge University Press. Hart, H.L.A. (1965). Book Review of The Morality of Law, 78 Harvard Law Review: Harvard Law University Press. Hart, H.L.A. (1982). Essays on Bentham, Oxford: Clarendon Press. Hart, H.L.A. (1958). Positivism and the Separation of Law and Morals, 71 Harvard Law Review 593: Harvard Law University Press. Himma, K.E. (2002). Inclusive Legal Positivism in Coleman,J and Shapiro,S. (eds.), The Oxford Handbook of Jurisprudence and Philosophy of Law, Oxford: Oxford University Press. Himma,K.E. (1999). Judicial Discretion and the Concept of Law,” forthcoming in Oxford Journal of Legal Studies vol. 18, no. 1, Oxford: Oxford University Press. Kramer, M. (1999). In Defense of Legal Positivism: Law Without Trimmings. Oxford:Clarendon Press. Marmour, A. (2005). Legal Positivism: Still Descriptive and Morally Neutral. Oxford Journal of Legal Studies, 26 (4), 684-703.