At a judgement. Thus already painting the picture, that

At first it should be noted that, the discussion regarding the possibility of distinguishing the juridical from the political, is a very complex topic. It should also be stated that the formalism being mentioned in the quote by Weinrib is a legal theory where adjudication is seen as the undisputed application of already accepted principles( for example statues) to identified facts of  any particular case, which  is straightforwardly done through deductive syllogism Furthermore the formalistic approach states that the appropriate principles of law of any  given area of law can be distinguished by gaging the case law of that precise area. In regards to the role of judges, when making a judgement, the formalistic approach would state that, judges require only the facts of the case and the relevant law and that all normative issues such as morality and politics would be irrelevant, in making a judgement. Thus already painting the picture, that formalism has very strong stance regarding the ‘juridical and political’ being separate and it being that they should never  be intertwined. However legal theories such as the Marxist and feminist legal theory, have a very different stance regarding the ‘juridical and political’ being kept separate.  To provide an adequate analysis of what theory I find most persuasive out of the three, I shall firstly be evaluating all their different stances regarding the ‘ juridical and political’ being separate,  the implication of each theory, supporters of each theories and their criticisms, any issues the implications of each theory presents, while looking at the reasons given in the judgements in the case laws and finally will give an in depth explanation as to why I disagree with stance held by the formalistic approach that the juridical and political should be kept separate. One theorist who can be deemed as being a strong representative of formalism is Dworkin.  It is perceived that Dworkin holds an opinion like a Blackstonian. He is a strong believer of ‘revival of the natural’, in that that judges should just ‘find’ the law rather than create it. Dworkin’s came up with a theory in which he called the ‘Model of Rules, in the interior of this model, he highpoints examples on how he perceives the law should be. An example of case law to support this is the American case of Riggs v Palmer, where he held the view that, if the law is not surveyed purely as it is written to be, stronger cases may be made for the defendants, in this case it would have meant that the defendant would have been entitled to the money in the will.  In this case he agreed with the ruling of the judge that rather than allowing the defendant to succeed in gaining from the crime they had committed,  in particular, the principle of law that “no one should profit from their own wrong” should be applied, so as to mean that the defendant would not have a successful claim.  Correspondingly, in the case of Henningsen v Bloomfield Motors, a contract was signed by a claimant, who had not read  the contract properly, so if the law was applied to the letter the Claimant would have been deemed of being at fault. However the judge did not follow the law to the letter and stated that in “a society such as ours the manufacturer is under special obligation in connection with the construction, promotion and sale of his vehicles,” in which Dworkin agreed with as he deemed it unfair to apply the law to the letter, thus signifying that even though, he is held to have a formalistic view of the law, he does contrarily take into account other factors such as  whether fairness is being achieved, suggesting he does not completely believe that ‘juridical and political’ should be kept separate, meaning that even in formalistic approaches, there does not seem to be a clear line to distinguish political and juridical. Further evidence, to propose that in some cases, principles should be considered when making judgements, which lead to the right outcome for the victim or claimant, is provided by the case of Re Sigsworth where the defendant tried to murder his mother and had tried to benefit from it, thus requiring the judge not to award the defendant his share of his mother’s will. This conclusion was reached as the judge believed that, if the literal rule would have been applied, it would have led to an “undesirable result”.  Lord  Clauson further specified in this case that “whether the opinions so expressed are binding on me, I agree with them and adopt them as my own,” Thus signifying that he is not forced to come to any definite conclusion and that he is able to use his own discretion.  So even though this case is illustrating that the judges did not instantly take the law at face value, it would still support Dworkins theory as Dworkin is not completely against judges applying their principles to the law, when making judgements. Moreover one major benefit of the formalist approach, is that it inhibits judges and other public representatives in their interpretation of legal texts, thus respecting the separation of powers, as the judges would simply be just applying the rules in a mechanical and undisputed method, which correspondingly protects  the judges from criticism. For these reasons, therefore formalism has been deemed as ‘the official theory of judging’.  This argument can be found articulately expressed in the Massachusetts Constitution of 1780, which states that the judiciary “shall never exercise the legislative and executive powers, or either of them; to the end that Massachusetts’ government may be a government of laws, and not of men, ” in return once again purely respecting the separation of power.One other ally of the formalist approach regarding the  separation of the juridical and political is the legal theorist Hans Kelsen. He contended idea of law in the abstract, as he perceived the las as a hierarchical based rational assembly of abstract norms, in which he referred to as the ‘Grundnorm’. Kelsen’s idea concerning the term ‘Grundnorm’ could be argued that it enables people to state which norms are legal and which are not legal, as his theory states that, one of the main principles, within this theory is  you can trace back the particular ‘norm’ back to Grundnorm as long as it is within the jurisdiction of legality, thus causing Kelsen to believe that there is always a right answer within the law.   Nevertheless, one main problem with this point raised by Kelsen is that, this notion that there is always a right answer implies that the law is complete and has no law has no bias or flaws, which we can easily dispute, especially using the feminist legal theory. One important point raised by the feminist legal theory to dispute the notion that the law is complete and has no bias, the issue that historically, the law has been shaped by men as they literally made up the government. Furthermore, throughout history, even in some places now the norms of society are virtuously based on patriarchal standards, thus signifying apparent bias. An example to support this claim and to illustrate how, historically women have been at the hands of individual bias can be seen where Lord Denning stated that “You cannot alter the fact that women are different from men. The principal task in life of women is to bear and raise children: and it is a task that occupies the best years of their lives. The man’s part in bringing up the children is no doubt as important as hers, but of necessity he cannot devote so much time to it. He is physically stronger and she is weaker. He is temperamentally the more aggressive and she is the more submissive. It is he who takes the initiative and she who responds,” thus generalising, that women are less capable than men to a certain extent, which could be deemed as hindering the law’s treatment of women, as it may lead to unwanted results in regards to the woman’s perspective, as well this issue arising from acting on social differences, could be argued under formalism as a farce and unnecessary, as the judge should  just be focusing on the facts of the case rather than other factors.  However sometimes, it is good for the judge to take into account the different powers men and women have at that period in history, such as in the case of  National Provincial Bank v Ainsworth where Lord Denning stated that “…Where the husband owns the matrimonial home, and is living there himself, he cannot turn his wife out. He cannot treat her as a stranger. He cannot exclude her from the house without good cause… He cannot take advantage of his own wrong – of his own desertion – and use it as a ground for ejecting her,”  thus illustrating him seeing a need to give special treatment due to the power men were at holding at that moment in time in society, in directive to protect the woman.  Which would not be accepted, by liberal feminists as they  acknowledge that many of the differences amongst men and women are socially influenced manners and characteristics, thus  being suggestive of the idea , that men and women’s capabilities  and autonomy are exactly the same. Still the feminist legal theory does not simply raise an issue, it also suggests solutions, which would indicate that their position regarding the ‘juridical and political’ being kept separate is one of that, they believe that political and judicial should not be separate, but should rather be influencing each other in positive ways, to extinct or at least minimise the unfair treatment against women.  Nevertheless, it must be noted that, it has been argued some types of feminist legal theories, are also bias to an extent in regards of race, as some believe that the full struggles of black women is not shown through certain feminist legal theories. Yet, this can easily be countered, in terms of, if the feminist legal theory was being taken on board as part of the procedure when making judgements, as a handful of equal amount ethnic women, when reforms regarding laws that affect women are being made. A further alternative theory which goes against the formalist approach to separating the juridical and political is presented by Karl Marx. It must be noted that he had various theories, but I shall be analysing both his theories of Crude Materialism.  Karl Marx did not only believe that the juridical and political are clearly linked, he held the view that law was tool being used by the ruling class to oppress the lower class, which is called the class instrumentalist approach as it looks directly at class systems. Evidence to support the class instrumentalist theory, can be found by observing the facts of the mining strikes of the 1980s. In court, the Lord Justice Donald Nicholls ruled that the validity of the miners striking was illegal, which therefore clearly illustrates the ruling class using the law as a tool to get what they want. Though one may look at the separation of powers can be regarded as a supporting factor as the judiciary is a separate branch of governance, acting independently from the influence of the executive and the legislative branches of government.   From looking at the mining strikes we can infer that the judicial and political are not separate as one would assume that the people would have the freedom to strike as they please, especially when you just want better working condition. The theory of Crude materialism can be defined as being reflective of the economic base such as the means of production and class systems, denotating that there is a cause and effect link between an individual’s material circumstance and how well of they are in that current society, thus suggesting you would have to change an individual’s material circumstance in order to have an liberated society, thus further signifying that, a formalistic approach where the judicial and political are separated is unrealistic, because whoever is the ruling class will always have the upper hand. However, this theory can be criticised, because it can be argued this theory solution is quite unrealistic, as it would be virtually impossible to level the playing field in 2018, when the top 1% own more wealth than the rest of the 99%, and some still tax evade, so unless everyone is willing to do their part it would see unlikely.     Nonetheless, it should be distinguished that in a Marxist society he law is not seen as the most important thing, but is more influenced by the economic growth, an issue with this then becomes, if there are no laws, then surely there should be no need to review the law, but then, there are hardly any Marxist countries left, so  in relations to the UK , Marxists theory of crude materialism is still valid as it can be seen in employment law that, workers are seen as commodities through contracts and fire the workers they  no longer deem profitable, or if they are not able to perform to the standard they once were able to, due to old age such as in football, thus illustrating that crude materialism is very much present and that the political and juridical cannot be separate when the political influences can pre dispose you to being worse off. To conclude Marxism, it is clear that in comparison to formalism there stances regarding both their approaches are on different parts of the spectrum, as Karl Marx completely rejects the notion the juridical and political should be kept separate.  To sum up, it would seem that even though there is the good argument of separation of power and respecting it, it is clear to infer that, other  factors must be taken into account if we are to have a progressive liberated society as even though formalism does not allow abuse of power, it does not take into account the factors which influence our day to day such as class systems and sexism. Hence why I believe that a mixture of the Marxist theory and feminist legal theory is required. Firstly I believe that Karl Marx theory of the class instrumentalist theory needs to be taken into account, as research shows that majority of people in prison are from a working class background, furthermore in sentencing a university student is more likely to get off a crime because he has  future than, a poor person who steals because they have to  in our current economic system. However this does not negate the responsibility completely from the defendant, but steps should taken to tackle the issues before using the law to punish them and ruin their chance of ever getting out of the cycle. Moreover though, I do not completely agree with Karl Marx, in terms you need laws even though he believes they are not that relevant.In regards to why I believe the feminist legal theory was very persuasive is because, a lot of issues addressed are still happening today, for example even in the UK right now women are getting paid less than men for the same jobs they are doing, I agree with liberal feminism in regards that men and women have the same mental capability and should be treated as such. In addition I believe that there should law that requires men and women be treated equally through pay and the law, however an issue with this is that some rights designed to protect the weak may be appropriated by the strong.  For example fathers of illicit children have used the right to family life assured by the ECHR to gain governor over their illegitimate children. Also I  furthermore disagree that a critique is that women may be seen as forgetting their other responsibilities such as family and children, as truthfully, we live in the  21st  century, whereas women are not dependent on men no more and can make up their own minds, yet the same laws that were designed for such scenarios have not changed. 

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