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Benjamin TH Low
GSI: Kimberly Ruyle Hunter
Philosophy 359 paper 2
18 November 2002
I vote not guilty. This fictional case is a powerful inquiry into the nature of law. It
raises questions about what value-based approach to constitutional law is more valid than
others. How far should the wording of the statute be taken literally? How much leeway
can be given to its interpretation? Natural law theory or legal positivism? Original intent
or purposive interpretation? I shall explain these terms and structure my paper around
these issues. I will also address the nature of the contract made in this case and apply it to
My view most closely aligns with that of Justice Foster\u2019s. For example, I agree
that they are indeed in the state of nature, defined by the fact that they are not within the
limits of the physical enforcement of the law. No police can arrest them, no soldier can
kill them. They would die anyway, so it is useless to observe the common law under
these unique circumstances. It is commonsense. They are not within the reach of the arm
of the law. This is like the case of a mutiny that happens on a ship out at sea in
international waters, over which no law has enforcement over, at least during the time it
is out at sea. In this case, the explorers have rationally concluded that if they were to
follow the common law, none of them will survive, so they had to make the law as
pertinent to their circumstances by making a pact. As Justice Foster argues, they had to
create \u201c\u2026a new charter of government appropriate to the situation in which they found
I agree with Justice Foster\u2019s premise that \u201c\u2026all positive law is based on the
possibility of men\u2019s coexistence\u2026\u201d how then is the judge supposed to treat this case if it
happened in a state of nature? I propose that it is irrelevant to judge this case under the
positive law. The case should not be judged at all because the basis under which the law
In answering the question whether Justice Foster\u2019s \u201cstate of nature\u201d argument has
any role to play in judge-made law, I presume that this means to ask if judges should alter
or create new meaning to the legislature in subservience to some kind of overarching
natural law that purportedly rules all human conduct. This is indeed one of the issues at
the heart of the debate over the nature of jurisprudence and the role of judges, which is
that of using the natural law theory approach as a basis for legal theory.
By definition, the role of the judge should be devoid of any political power. In
Ely\u2019s article, Hamilton\u2019s Federalist 78 defines the role of the judiciary as having \u201cneither
force or will\u201d, being \u201cpurseless\u201d and \u201cswordless\u201d, and that \u201c\u2026from the nature of its
functions, will always be the least dangerous to the political rights of the Constitution;
because it will be least in a capacity to annoy or injure them\u2026\u201d So what this means is
that judges cannot create law, prima facie. Indeed this is rightly so.
Lockean analysis states that from the state of nature arises the will of the people,
which forms the legislative through the democratic process of elected officials as
representatives and it is possible to incorporate by consideration of \u201cstate of nature\u201d
arguments in forming positive laws. The judge has no role in this process. So the judge
cannot make laws based on \u201cstate of nature\u201d arguments because it has already been
presumably done so by the Constitution and is not his proper role.
Natural law theory has an obvious and big flaw in that it is notoriously vague and
unreliable as a consistent basis for formulating principles of just law. Any kind of
arguments can be attributed to natural law theory, resulting in a wide spectrum of
Now bringing you back...
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