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  • Essay / Interpretation in Judicial Decision Making - 2130

    The importance of legal positivism for legal practitioners is indisputable. The legal system, resulting from two versions, both English and continental-European, has in fact undergone a process of evolution. Today, we see the existence of a distinct legal outlook in society with its legal norms and a strict separation of law and morality. An autonomous order has emerged in our modern society and law is now seen as distinct and autonomous with a normative function. There was no longer an outside view of the legal system, since all law was man-made by Parliament and therefore a new theory was needed to understand and replace natural law. This was coherently developed under the name “Pure Theory of Law” by Hans Kelsen (1967), who argued for the existence of a system of norms that binds judges. Thus, the fundamental assumption of legal positivism is that there is no room for interpretation of the law and that judges are bound by the law. Nevertheless, this notion of legal positivism has been and is still debated. The importance lies in the epistemological views that underlie these theories. Legal positivism therefore relies heavily on logical decisions and rationality; therefore, a judge's subjective opinion, morality and interpretation have no place in legal practice. Yet this view has been criticized on the grounds that legal positivism appears to be a theory of law and not really a legal practice, as it often ignores what happens in court. This is therefore an important question in the context of a social theory of law which examines the law from a very different perspective. Kelsen considers norms to be the main starting point of law. The argument is that a legal norm derives from itself and thus finds normality within itself. There must be a basis in the middle of paper......Transaction Publishers.Griffith, J. (1986) What is legal pluralism? Journal of Legal Pluralism, 24, pp. 1-55. Hart, HLA (1961) The Concept of Law. Oxford: Clarendon. Kelsen, H. (1967) Pure Theory of Law. Berkeley: University of California Press. Luhmann, N. (1985) A sociological theory of law. London: Routledge. Miller, R. and Sarat, A. (1981) Grievances, Claims and Disputes: Assessing the Adversary Culture, Law and Society Review, 15(3-4), pp. 52-62. Nobles, R., Schiff, D. (2006) A sociology of jurisprudence. Oxford: HartRaz, J. (1986) The Purity of Pure Theory. In Tur, R. and Twining, W. Essays on Kelsen. Oxford: Clarendon. Teubner, G. (1983). Law and Society Review, 17(2). United States: Wiley. Teubner, G. (1997) Global Bukowina. Legal pluralism in global society. In: Teubner, G., ed. Stateless global law. Aldershot: Ashgate/Dartmouth Publishers.