Law and Legal Instrumentalism Essay

Law, a set of coherent rules and values within a society, is a human process. As such, it is crucial to approach its application within society in a pragmatic and realistic sense rather than a formal one, which views law as a set of mechanical and abstract principles. A legal realist approach on law takes into account extra-legal factors which help shape how law is used within a social context. This approach does not view the discipline of law as a literal set of principles to be formally detected and applied, but recognizes that the interpretation of law by legal actors is manipulated by situational factors. BrianTamanaha in Law as a Means to an End: Threat to the Rule of Law examines how law, originally understood as an â€Å"instrumental to serve the social good†, is now just a mere instrument to further the goals and agendas of those who have access in its use (Tamanaha, 4). In essence, the notion of a common â€Å"social good† is no longer a qualifiable condition of law. In a complex, multi-faceted society, it is optimistic to presume that there is a true identifiable social good. Thus, lawyers, legislatures, judges and other legal actors are capable of using law to further their personal or collective political, social and economic interests. Tamanaha examines the ways in which legal actors, specifically cause litigants and judges, instrumentally exercise law. Thus, the term instrumentalism, a form of legal realism, is a pragmatic method which stems away from a formal application of law by critically examining cause litigation and judicial activism. Although law may be used as a mechanism to achieve a certain outcome, it is not used lawlessly and without merit as lawyers are advocating for a broad social cause and judges use law based on the merits of the constitution, given the benefit of time and postulated reason of their decision making. Brown, a case regarding segregation within the United States emerged with lawyers stirring up lawsuits by informing African American citizens of their legal rights (Tamanaha 159). The process of instigating litigation was previously prohibited in common law practice; it was not professionally ethical for lawyers to set lawsuits in motion. However, it became increasingly common for lawyers to achieve change in public policy and legislation by fighting for a specific cause within the judicial arena. This ethod was forward-looking in that the courts became a battle field for interest groups seeking remedial change; the decision of the law was not necessarily to compensate for any harm inflicted in the past, but to change the policy in the future. This expansion from the traditional bilateral litigation no longer was to award the affected parties with compensation, but became a method to attain a reformative decree (Tamanaha 161). Eventually, cause litigation was an encouraged means to a dvance societal goals, in the sectors of environment protection, political reform and mental health, to name a few (Tamanaha 160). Although such issues of public policy appear to benefit society as a whole, the intent of the cause lawyers who instigate such legal actions is questionable to Tamanaha. The lawyers in these situations are no longer amoral technicians of law, but individuals who seek their own ideological implementation (Tamanaha 156). The cause which lawyers strive towards becomes the primary concern, whereas the clients themselves are secondary, fulfilling the standing requirement before the court (Tamanaha 156). This can be very detrimental to the clients because they may not be aware of the consequences of their legal actions. For instance, Baehr v. Lewin, 1993 was a successful lawsuit brought forth to legalize same-sex marriage in Hawaii. Although the litigants won, the ultimate consequence was detrimental; following it was a series of amendments nation-wide which prohibited same-sex marriage (Tamanaha 167). The battlefield within the court became not a place to determine legal rights, but a remedial catalyst in public policy. Such political battles focus on adversarial ideologies rather than legal rules and merit. However, the work of cause litigants cannot be narrowly categorized as one that is purely self-serving. More often than not, cause lawyers instigate lawsuits by informing the oppressed and disadvantaged of their rights. By doing so, they use law to encourage political change to the otherwise uninformed public. These causes often grow to become social movements as it â€Å"provides the basis for a sustained series of interactions between power holders and persons successfully claiming to speak on behalf of a constituency lacking formal representation (Austin 2)†. This formal epresentation demands change from the power holders with a strong backing of social support. Often, these groups lack the resources and skills which lawyers can provide, offering their advice to enlighten the marginalized group to â€Å"initiate and nurture political mobilization† (Austin 4). The instrumental use of law by judges is immensely threatening to the judicial system and to a democratic soc iety as a whole. Judges who use law to achieve a certain outcome undermines the rule of law. The legal system requires that judges be objective arbitrators of the law. As independent bodies, it is essential that they remain impartial in their decision making and delegate based on rule, and not personal preferences (Tamanaha 227). This is a crucial aspect of the rule of law, which binds the action of the state to pre-fixed rules, placing judges equal under and before the law, just as all other subjects of society. The rule of law ensures transparency and predictability which prevents the government from ruling coercively. It is an essential component to a democratic state. However, when judges decide a cases, they may be inclined to achieve a particular result. In essence, they are using laws to achieving another end, namely one that strengthens their own ideological beliefs and interests. Whether it is a certain political philosophy or a particular social policy which they seek, arbitrarily decided cases and manipulated law enforcement defeats the characteristics of the judicial branch of the state. Because there is no particular hierarchy of values, judges are able to promote some while extinguishing others. The general terms of legal rules allows judges to focus on the consequences of their decision. Their decisions will naturally be based on their political affiliations or ideological tendencies. Consequently, it is difficult to believe that judges are truly impartial in decision making. The result of judicial activism is that private attitudes become public law (Tamanaha 234). Furthermore, the procedural process of the case takes a backwards approach; the decision is made first, then it is justified by the legal rules which judges find applicable (Tamanaha 236) Nevertheless, there is a certain form of procedure which judges are bound to. Although values are not ranked hierarchically, there are two forms of rights obtained from the constitution: specified rights and secondary rights (Bork 17). The latter is of utmost importance as it addresses the values held by the constitution, such as the right to vote or procedures in criminal processing, all which the courts need to protect (Bork 17). The former alludes to the principled rules which the original framers of the text intended to convey (Bork 17). Because constitutional law does not have a concrete theoretical premise on which adjudicators are required to base their decision making processes on, they are founded on neutral principles. That is, issues are addressed based on general principles postulated on reason to ensure that conflicting values are not lawlessly chosen over one another (Bork 2). Granted, there are adversaries in the legal principles to which judges ascribe. Therefore, it is critical for the judges to recognize that in deciding cases, they are setting legal precedent, and therefore should have a firm belief that the values being applied are done so lawfully. These beliefs are in relation to the legal system as a whole, not their personal preferences (Bork 2). Ultimately, Bork’s concern lies not with the decisions made by judges but what makes their decisions legitimate. The courts essentially work as advocates for the minority who otherwise would have no say on the issue at hand. Helping the powerless realize their rights is a form of advocacy that judges take. It is not about undermining the rule of law, but giving opportunity to access the law (Bork 3). Nevertheless, it is crucial for judges to base their decisions off of neutral principles; just as principles and values cannot be applied lawlessly, they just the same cannot be defined lawlessly (Bork 8). The critical examination of judicial review goes beyond it’s obvious implications and expositions of undermining the rule of rule. It is unfair to presume that judges are completely unreasoned in their decision making. There is a level of predictability as judges are bound to legal precedent and cannot decide cases in an tyrannical manner. Although the courts are not elected officials who are granted the power to delegitimize legislation, they are in many ways better equipped in making such decisions. For instance, the courts are distanced from political or social pressure allows them to make sound decisions in a timely matter. Elected officials tend to act on expediency and pressure when it comes to making value-based decisions (Bickel 25). Essentially, they are inclined towards one side of the issue in order to appeal to the interest of the predominate voters, as opposed to abiding to the fundamental values of law (Bickel 25). Judges on the other hand make decisions far from societal pressures, with more leeway in terms of time. This gives the courts the ability to make more calculated decisions, taking into consideration not only the fundamental values of the state but also the unforeseen implications of a decision. (Bickel 26) In dealing with the pith and substance of a case, decisions are argued to be â€Å"sober second thoughts† (Bickel 26). Ultimately, the use of law within a judicial context by judges and lawyers is not an arbitrarily unfair process. Such legal actors are bound to the values of the laws within society. Such values are premised on the rule of law, the foundational concept of a democratic society. Cause litigants are often involved in social issues and advocate for those who require a formal delegate. These cause lawyers may use law in such a way to achieve a certain outcome, but this outcome results in change in public policy to those who are otherwise be unaware of their legal rights. Moreover, although judges may have their own social desires and political preferences, they cannot easily sway towards them. Their professional duty requires them to be consciously rule-bound and rely on the precedent. Further, the basis of their decision is on neutral principles. Such principles are not vague and abstract, but stem from the precedent of previous judges in common law. Instrumentalism is pragmatic in that it recognizes that law is not a math; there is not a formula which judges rely on. However, social movements and changes through the judiciary ensures that fresh insight is continuously brought about within society, giving room for social change and progress.

Health or wealth, which is better ? Essay

God, and value it next to a good conscience: for health is the second blessing that we mortals are capable of. a blessing that money cannot buy†. – Izaak Walton These are words of wisdom and none would question their validity. But there are times when people do value money over health. When a person has been deprived of a thing for too long, he longs for it: and as money is the commodity most in demand people want money to fulfill their eeds. It can help rent or build a house. It can buy medicines, clothes, fruit and food: it can pay for the small pleasures of life as well as the big ones – from a cup of tea to a holiday abroad. Aesthetic and cultural enjoyment – tickets for the latest play, an evening at the opera, an expensive book, the latest L. P. – all these money alone can buy. There are far too many things which are out of the reach of the middle and the working classes. A good education, expensive sports and games like skating and golf, raveling in comfort, owning the gadgets which add comfort to life – these are things which people with limited incomes cannot buy. The unprecedented unemployment of the thirties was responsible for a great deal of human misery and resulted in the loss of self-respect and dignity. It also forced people to recognize the worth of money and resulted in a disproportionate attachment to the material world. There is no denying the value of money and the pleasure of enjoying it: but there are basic issues involved. If money can be got only after a huge amount of sacrifice, is it worth t? Is it really necessary for human beings to go on increasing their needs and temporary pleasures? Or would it be wiser to impose a self-restraint on one’s needs? People get so busy in getting money that they forget how to enjoy it. Engaged in getting money, man has no time for his family or his friends and at times no time even for his health. On the other hand, the pursuit of money may adversely affect both his physical and spiritual health. He may overcome his initial scruples in his desire for power and money. The question then is how much evil is Justified to get to he good. If one has to choose and even if there is no choice, health is better than wealth. A healthy person can look after not only himself but also others. He can be a useful member of society and of a family. He can be generous and sympathetic and be constructive in his thinking. An ailing person whether man or woman is a drain on others. And money can buy medicines, pay for a visit to a health resort or long hospitalization but it can neither buy health nor happiness. It is immaterial that a man can buy an expensive pair of shoes, if he has no shoes. Ultimately it is equally irrelevant whether a man is dressed up in the most expensive clothes, or drives the latest model of an expensive car. What is important is how good a human being he is. And for this he needs health. If he is healthy, his whole approach to life will be governed by this factor. Ask a man who has been through a long illness and an equally long spell of poverty and he will chose health. Money is the value of the man- made world – not of the world God created. Health is a god-given grace and let us be grateful for it.

MACRO AND MICRO ECONOMICS Assignment Example | Topics and Well Written Essays - 1000 words

MACRO AND MICRO ECONOMICS - Assignment Example During their climax, copper was very costly in the global markets to an extent some coins made of copper were more worth than their face value. The following discussion will address the trends in the global markets of copper, their distribution and demand and ways in which the government can influence the price, demand and supply of copper. The Main Economic Trends and Features of the World Copper Market During the Period 2007-11 The United States local production and use of copper has slightly gone high in 2011 to a figure of about 1.1 million tons raising its value to approximately $ 10 billion. Montana, Nevada, New Mexico, Utah and Arizona in the ascending order of production contribute over 99% of the local mine manufacture. Copper that was refined used about 30 mills of brass, 15 mills of rod and 500 foundries and sundry end users. Copper and its alloys were consumed in the building infrastructure where about 45% were used in electronic goods, 23 % consumed in the equipment of t ransport, 12 % consumed in general products similar to the consumer goods while the industrial ware used about 8% (Ho & Yi, 2008: 538). Between the years 2007-2011 the unproduced import sources from Chile was approximately 42 %, the Canadian was about 33 %, Peru amounted to 13% while Mexico had 6 % . The unwrought copper imports comprised of 83% of the refined copper. There has been an upward trend in the prices of refined copper in the second of half of 2010 with the ending year price according to London Metal exchange reaching a record high of $ 4.44 per every pound of copper (Botchway, 2011: 355). Even though the prices have been fluctuating considerably, the price of copper has remained over $ 4 per every pound throughout August 2011 with a record high price by LME going way up to $ 4.60 per pound in February 2011. In the month of September 2011, in reaction to the crisis regarding the impact on the demand of copper from the increasing debt in the European Union and the slowing development policies in the Chinese republic, the spot price fell acutely to about $ 3.16 per every pound in the course of week 1 which was the least since 2010 July (Gleich, Ayres & Go?Ssling-Reisemann, 2010: 121). The Factors Which Led To Change in the Demand for Copper during 2007-11 However, in September, the global copper research group predicted that the world’s refined demand of copper in 2011 would go beyond the production of refined copper by approximately 200,000 tons which would elongate the deficit production that occurred in 2010 as predicaments of operations and labor unrest inclusive of the strikes in Chile and Indonesia. This would continue to strain the global output of copper mine. The global demand, consumption and production of refined copper was estimated to go high by 1.5% and 2.3% by 2011 (ILOTTMMOTCM, 2008: 14). The production in the U.S mine went up abet in 2011 as restoration of mine restrain instigated at year end 2008 were majorly counterbalanced b y a less Ore Grades at a chief producer. The production at the electrolyte refinery went down due to closure of the refinery that was experienced in 2010 that eventually treated trade in anode and to less local output of smelter, the latter leading to a high degree of exports. The Copper mine production in the United States was projected to increase by over 100,000 tons in 2012, fundamentally because of the increasing refurbishment of cut downs. The local consumption of refined copper was close to unvaried in the year 2011 (Geological Survey, 2011: 21). Moreover the boom in the construction sector in China has also granted the consumers an insatiable

Currency Exchange Rate Essay Example | Topics and Well Written Essays - 3750 words

Currency Exchange Rate - Essay Example The exchange rate of a currency is: is fixed, i.e. constant relative to a base currency (usually the US dollar or the euro), by decision of the State issuing that currency. The rate then can only be modified by a decision of devaluation (or revaluation) of that State. A State may not, however, decide to adopt any exchange rate of its currency. If this exchange rate fixed at too high or too low, the exchange rate will be "attacked" in the foreign exchange market. If the monetary authorities are unable to cope (with their foreign exchange reserves), they will change their parity; is floating and determined for each transaction by the balance between supply and demand in the foreign exchange markets. This is an interbank market worldwide currencies, less centralized on specific places of quotation and trade, as based on computer links between banks. The exchange rate is: or a spot price, that is to say "spot" for immediate purchases and sales of foreign currency. In general, the currenc y delivery time is 2 working days during the working days and it may exceed that period if the delivery must be made during the holidays; either a course forward, that is to say "Forward", to exchange transactions at a future due date (the delivery is not made immediately). The mission is to manage risk. It is an agreement to fix today the price at which it will buy / sell currency futures.Exchange rates vary widely during the same day, these variations cannot be explained by the theory of purchasing power parity (PPP).

Ralph Ellisons Invisible Man Essay Example | Topics and Well Written Essays - 1250 words

Ralph Ellisons Invisible Man - Essay Example Because he is black, the narrator automatically finds himself straddling racial barriers and prejudices yet he only begins to realize how he is regarded through the divisions of the equal rights movement by recognizing that he himself is "both sacrificer and victim." (p. 506). This description is apt for every social circle that has accepted him, for the narrator has either been a tool or a symbol in each instance; whether the gathering is white or black, the narrator is never a full member of any group, but only included until sacrificed in the interest of the group. Ellison reinforces this notion that the narrator is "a disembodied voice" (p. 581) by never offering any real description of him to the point of never even giving the character a name, even when it is changed. The narrator at one point ruminates about his history of humiliations, observing that "They were me; they defined me." (p. 508). Working form this basis, the narrator's degree of invisibility can therefore also be measured by them and, since they hinge upon racial issues, a closer examination of these instances and the people involved underscore the narrator's ultimate lesson. Likewise, the narrator is not the only "invisible character in the book, given that it applies to an outsider's view of another he is just the only one in the novel that suspects the enormity of the injustice. This paper will attempt to examine both these issues.. The racial strata are divided into four rough categories: bigoted whites, whites sympathetic to the black cause, blacks who seek to achieve solidarity across racial lines (equality with whites), and blacks seeking to uplift/aid their race without the help (or interference) of whites. The first and last tend to believe the absolute worst stereotypes about the other race, while the border categories are often to blinded by their intentions to realize the full ramifications of their actions. The most extreme case of bigoted whites occurs in the scene of the battle royal, where the prominent whites of the narrator's hometown gather to witness a cruel brawl. The narrator, invited to give a speech, is instead forced to box nine other men black men, all of them blindfolded. The fighter are paid after the fight with money scattered across an electrified rug and they must get repeatedly shocked in order to get their reward. When the narrator is finally allowed to deliver his speech, which in cludes such platitudes as "cultivating friendly relations with the southern white man" (p.30), under constant heckling form the audience, which results in his accidentally inserting the phrase "social equality." By assuring the crowd that it is a verbal slip, he is allowed to finish his speech and is rewarded with a briefcase and a scholarship to college. In this scene, the narrator and his peers are essentially invisible as individuals to the white gathering, who in turn allow their hatred and prejudices to erase their own identity. Both groups then become faceless and unidentifiable other than by the color of their skin. Yet is the white gathering who are evidently in control, for, not only do they demean the black men, they reward the blacks only for adhering to the expected social order what

Answer the questions in Bold Essay Example | Topics and Well Written Essays - 500 words - 4

Answer the questions in Bold - Essay Example A single level of provider, or individual teams within a level, can provide assistance when others are unavailable or inappropriate. Responses appear to have improved since 2001 (Inglesby, 2011), but there are still concerns that need to be addressed. As the scale of a disaster increases, so does the involvement of multiple groups. The call for coordination begins at the instant that more than one team is attending to an emergency. Without properly integrating available services, there is little chance of providing the best possible assistance to those affected by the situation. Poorly strategized emergency services will cause overlaps and gaps in the allocation of personnel (Born et al., 2011). This deficiency would result in victims not receiving the appropriate help when it should otherwise be available (Geale, 2012). Poor skills management is also possible within a single unit, but is exponentially damaging as more teams become part of the system. Higher levels of emergency response will be activated as the situation increases in severity and, usually, in geographic impact. The damage caused by the faulty management of disaster assistance is severe when it occurs throughout high-level supervising authorities. The regular eval uation of these systems is a necessary step to ensure the minimization of losses due to emergency situations. The integration of emergency services at multiple levels is adequately but not perfectly supported by current United States policies. Local officials and organizations handle most emergencies, limiting the complexity of cooperative management and allowing for familiarity to develop between providers. When the state becomes involved it takes control of the operation while supporting and coordinating community efforts, which is appropriate given the duties and capabilities of state governments. Federal intervention is only

Karl Marx Essay Example | Topics and Well Written Essays - 750 words

Karl Marx - Essay Example Karl Marx saw religion as being used to console the poor and to give them false promises thus making them forget the challenges that they were going through in life. The bourgeois was using religion in this consolatory manner so as to make the proletariat not to rise against them in protest for the injustices that they were undergoing. Karl Marx, therefore, saw religion as the opiate of the masses that was making the poor to have a passive approach to the challenges that they were going through in life. The second idea that I love about Karl Marx is his idea of human history and class conflict. Karl Marx claimed that in the history of human beings, every historical epoch is marked by two classes of people, i.e. the bourgeois and the proletarians. The bourgeois is the rich and the owners of the means of production. The proletariats, on the other hand, are the poor people who provide labor to the bourgeois. Karl Marx said that besides the bourgeois being the owners of the means of production, they also constitute the ruling class, political power and authority reside with them. Carl Marx claimed that because of this glaring inequality between these two classes of people, conflict is bound to arise in such a society. This is because the proletariat will always feel short changed and as a result, they will strive to overthrow the bourgeois from power so that they would also have an opportunity to be rich and to own the means of production. The bourgeois, on the other hand, will strive t o ward off the resistance of the proletariat.... The new proletariats will in turn start protesting against the bourgeois and this will lead to a new conflict in an attempt to overthrow the bourgeois from the reins of power. This process will continue on and on, in a dialectic way, till when it will come such a time when classes in the society will be completely abolished, i.e., when all the people in a society will be able to communally own the means of production. This kind of society will be a socialist or a communist society. Karl Marx believed that through this theory of class struggle he had explained the history of humanity and the law behind the history. Karl Marx was strongly convinced that without equal distribution of resources in a society, conflict is bound to arise. For Karl Marx material is the ultimate reality and the history of human beings can be explained as a constant and dialectic struggle for the material resources. Karl Marx envisioned a time when there will be equality in the distribution of resources and wh en the means of production of a society will be communally owned. He envisioned a time when the resources of a country will be divided not according to one’s ability but according to one’s needs. But this is not possible in a capitalist society; it is possible only in a socialist or communist society. This is because in a capitalist society, the distribution of resources is not based on one’s needs, but rather on one’s ability to acquire the resources. I really love this idea of Karl Marx because a critical look at the many conflicts in our societies and the world at large can be attributed to class struggle. Our capitalist economies have created a wide economic

Group Work on an Ammonia Reactor Project Personal Statement

Group Work on an Ammonia Reactor Project - Personal Statement Example I would like to start by reflecting on the things we have done well. Our communication system is clear and open and there is a mutual understanding among all members of the group. The group leader coordinates and controls the communication system but all members of the group are given the opportunity to freely air their views. There are consensus and mutual understanding in as far as the division of responsibilities is concerned. Consultations among all members are carried before tasks are assigned to individuals. We realized that this strategy is very effective in minimizing conflicts among the members which can be counterproductive. We treat all completed work for this project as shared responsibility whereby we do not seek to blame anyone should we get something wrong. As a group, we managed to influence all members to develop a positive sense towards the seat goals of the project.However, there are certain things we have done badly in our project. The main problem we have so far encountered is related to documentation of results from the experiments carried. At times these are not recorded on time which often results in wrong figures being recorded. This was mainly attributed to the fact that some members of the group did not like to work as a team since they wanted to do their own things separately. We also encountered some difficulties in coordinating the efforts of all the members towards the same goal since we often failed to meet deadlines to fulfill certain tasks. Some of the tasks required collective responsibilities but some members failed to meet the time for the meetings. Some members were not very good at keeping time which resulted in us failing to meet some of the deadlines.  

Business - Executive presence Essay Example | Topics and Well Written Essays - 2500 words

Business - Executive presence - Essay Example This charismatic personality of the individual makes him attractive to people, thus the people follow him. Ultimately, people trust the leadership of the executive and they are assured of the sense of self. There are five classes of executive presence, which contain the sixteen executive traits. These classes include business intelligence, risk taking, interpersonal relationship, performance improvement, and self-development characteristics. The business intelligence characteristics include strategic vs. tactical, whole company perspective, and financial framework. Risk taking characteristics entail capitalizing on change and ambiguity, leaping ahead in one’s career, and going beyond the comfort zone. Interpersonal relationship characteristics include clear communication, managing vs. leading, and sharing the limelight. Performance improvement characteristics are composed of prioritizing an individual’s projects, developing solid thinking skills, and developing discernm ent. Lastly, self-development characteristics include knowing thyself, seeking feedback, gaining confidence, and training. These executive traits are important for the creating the executive presence in any organization. For instance, effective communication in a clear and precise manner is crucial for the development of executive presence. Executive Presence Executive presence is possessed by an individual who has a confident and a powerful persona. The charismatic personality of the individual attracts people and makes them follow the individual. Then, people trust in the executive’s leadership and they are assured of the sense of self. The individual is a strong force within the organization. The individual does not hesitate; he or she takes immediate action. He is confident and decisive with the choices and he is not wavered by anything. Even if the individual is wrong, his or her outward demeanor is not affected. He just tries again because taking risks is his part of th e natural approach (Garfinkle, 2011). The individual is assertive and constantly moves forward with what he wants. He believes in something and directs all his force and energy towards it. He is not forceful but very firm with his opinions and ideas. The respective with which the individual treats others prevents them from seeing his or her aggressiveness and assertiveness. The individual creates consensus with the others so that they feel included in the concepts that he or she encourages. When he or she leverages his expertise and the areas in which he is experienced, executive presence follows. As individual develops executive traits, he or she builds executive presences into an important component of the current state (Garfinkle, 2011).There are five categories of executive presence which encompass the sixteen executive traits. These categories include business intelligence, risk taking, interpersonal relationship, performance improvement, and self-development characteristics. B usiness Intelligence Characteristics Strategic vs. Tactical Having tactical skills (that is, the capability to manage day-to-day tasks and actions) is crucial to the success of the career. However,