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The Philosophy of Positive Law

The document discusses the tradition of legal professionalism and its role in shaping judiciary law. It argues that while courts must interpret and apply legislation and customs, they do so through legal principles, rules, and traditions developed by the legal profession. As such, the law of the courts is shaped not just by legislation and public sentiment, but also by the commitment of lawyers and judges to preserving their own legal traditions. These traditions, which date back to Roman law and were developed in European and English universities and courts, help protect the law from being conformed to transient demands from legislation or the public.

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Claudia Poveda
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63 views3 pages

The Philosophy of Positive Law

The document discusses the tradition of legal professionalism and its role in shaping judiciary law. It argues that while courts must interpret and apply legislation and customs, they do so through legal principles, rules, and traditions developed by the legal profession. As such, the law of the courts is shaped not just by legislation and public sentiment, but also by the commitment of lawyers and judges to preserving their own legal traditions. These traditions, which date back to Roman law and were developed in European and English universities and courts, help protect the law from being conformed to transient demands from legislation or the public.

Uploaded by

Claudia Poveda
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THE PHILOSOPHY OF POSITIVE LAW : FOUNDATIONS OF

JURISPRUDENCE

LAURA ESTEFANY GALVIS POVEDA

0603156

MILITAR UNIVERSITY NUEVA GRANADA

JURISDICTIONAL LAW

2020
LEGAL PROBLEM

Does the tradition of legal professionalism only form the law of the judiciary?

ABSTRACT

many customs and moralsentiments are themselves the creation of that


law.What both the top-down and the bottom-up views of courts miss is the
roleof the legal profession itself as a basis for judiciary law. No doubt courts
mustinterpret and apply statutes from above and must interpret and apply
customsfrom below, but courts do so by means of distinctively lawyerly bodies
of legalprinciples and rules, some customary and some stipulated. Lawyers and
judgesare not merely ministers of the sovereign legislator or merely agents of
the pop-ular will: they are also guardians of a relatively independent tradition of
legalideals, methods, doctrines, principles, customs, and rules. Courts, and the
legalprofession more generally, mediate legislative pressure from above and
popularsentiments from below. These legal traditions go back to the modern
Romanlaw, as it was developed in, among other places, the medieval and
modern uni-versities of Europe and the English royal courts; these traditions
unite the bar,bench, and academic branches of the legal profession. So, in
addition to sover-eign legislation from above and popular mores from below,
the law of thecourts is also decisively shaped by the commitment of lawyers
and judges topreserve the integrity of their own legal traditions. Indeed, the
tradition of legalprofessionalism shapes much more than just the law of the
judiciary. Legisla-tion itself can be partly a product of legal tradition insofar as it
reflects lawyerlystandards of draftsmanship and not simply sovereign political
will or popularmoral passion. Over time, of course, these legal traditions are
and ought to beshaped by the development of new legislation and new popular
mores. Eversince Bentham, it has been easy to be skeptical of the legitimacy of
these essen-tially aristocratic legal traditions in a modern democratic polity.
Nonetheless,the strength of professional legal traditions can serve to protect
the law of thecourts, at least in the short run, from the strong pressures to
conform to the de-mands of either urgent legislation or urgent popular
sentiment—demands, aswe know, that do not always promote justice.
Referencias
Autor: 
Murphy, James Bernard

Bibliografía
http://eds.b.ebscohost.com.ezproxy.umng.edu.co/eds/ebookviewer/ebook/bmxlYmt
fXzIwNDQ3MF9fQU41?sid=c75f002d-68e7-476e-81a5-e4b6787a6807@pdc-v-
sessmgr02&vid=2&format=EB&rid=1

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