Major Theories of Legal Reasoning Essay Example | Topics and Well Written Essays - 2500 words

Major Theories of Legal Reasoning - Essay Example The difference between the approaches is exactly which standards are balanced. Though fundamentally different, the two approaches do have some similarities. â€Å"The fundamental value in judicial ethics is impartiality.† This positivist reasoning holds the view that judges must decide cases purely on their merits, with an open approach and thus not be influenced by bias or prejudice. The standards here are only to be found in the material posited law; entirely segregated from moral considerations or personal ethical opinions. Ultimately, the judge has the slight, or no discretion when ruling in cases; he is to simply refer to case law and legislation and may not refer to his own opinions of what he conceives justice to be. Thus, theoretically, no person can be guilty of an offense that did not exist at the time of his act; a judge cannot change the law depending on the current case, as his personal opinion denotes. Indeed, it is argued in this area that the central aim of jurisprudence is to draw a line between ideology and law, the latter being the only ground for decision making. Suffice it to say that the judge must simply app ly the case law and/or legislation without referring to non-legal considerations. Positivists consider these non-legal considerations to open the law up to arbitrary decisions, entirely at the mercy of the judge’s moral outlook. This distinction between legal and non-legal considerations is exactly what the positivist approach stipulates. In comparison to legal considerations based on legislation and case law, non-legal considerations are those based on political, moral and ideological factors. It is this particular feature of positivism; that in which it breaks away from any moral considerations and values.