Instrumentalism in Law and Legal Protection

Instrumentalism views law as a tool to achieve specific political, economic, or social goals. Its primary focus is on practical outcomes and using law as a means to an end.

A key criticism of instrumentalism is that it risks reducing law to a mere tool of control, potentially ignoring human rights safeguards. Guantanamo Bay is given as an example, where security was prioritized over legal protections and due process.

Radbruch acknowledges that legal expediency, a feature of instrumentalism, allows society to protect itself through law. However, he cautions that overemphasizing one value like national security at the expense of justice and equity can lead to harmful and disproportionate outcomes.

<p>The main purpose of legal protection is to safeguard citizens' fundamental rights and limit the power of the government. It reflects principles of democracy and the rule of law by ensuring law acts as a constraint on arbitrary state power.</p> Signup and view all the answers

<p>Two problems with 'rule of men' are that equity is sacrificed, meaning citizens are not treated fairly or consistently, and liberty is threatened, as individual freedoms are undermined by unpredictable state actions.</p> Signup and view all the answers

<p>A lack of legal certainty under arbitrary state power leads to citizens living in fear due to the unpredictability of state actions. One consequence is the absence of clarity and stability in the law, making it difficult to plan or trust the system.</p> Signup and view all the answers

<p>From a Kantian perspective, arbitrary state power violates the right to life and undermines trust between citizens and the state. This is because it treats individuals as means to an end, rather than ends in themselves, and disregards their inherent dignity and rights.</p> Signup and view all the answers

<p>Ensuring a dignified life for all.</p> Signup and view all the answers

<p>Hans Kelsen and Carl Schmitt.</p> Signup and view all the answers

<p>Impartiality and independence.</p> Signup and view all the answers

<p>International human rights treaties.</p> Signup and view all the answers

<p>Right to life.</p> Signup and view all the answers

<p>Provided by law.</p> Signup and view all the answers

<p>Proportionality test.</p> Signup and view all the answers

<p>Interference in national affairs.</p> Signup and view all the answers

<p>Everyone is subject to the law.</p> Signup and view all the answers

<p>Accountability.</p> Signup and view all the answers

<p>Laws are coercive because they can be enforced by the state, even through the use of force if necessary, to ensure compliance with legal rules.</p> Signup and view all the answers

<p>Law being systemic means that it functions as a coherent system, not just a collection of random rules. The institutions involved in law operate in a connected and logical manner, ensuring consistency and order.</p> Signup and view all the answers

<p>The argumentative nature of law acknowledges that legal rules can have multiple interpretations. It allows individuals to present and argue their perspective on legal matters, especially when facing powerful entities like the state, without fear of repercussions.</p> Signup and view all the answers

<p>System coherence refers to the coordinated functioning of legal institutions. It is vital for accountability because it ensures that different parts of the legal system work together, preventing any single institution from acting unchecked and promoting overall legal responsibility.</p> Signup and view all the answers

<p>The primary function of the legislative branch, such as a parliament or congress, is to create laws. It also plays a crucial role in scrutinizing the executive branch to prevent it from overstepping its power.</p> Signup and view all the answers

<p>The executive branch is responsible for executing and enforcing the laws created by the legislature. This includes entities like the president, prime minister, police, and government officials, who ensure that laws are put into action and followed.</p> Signup and view all the answers

<p>The judiciary's main role is to apply the law in individual cases, aiming for impartial adjudication in both private and public matters. It checks other branches by reviewing laws or executive actions and declaring them unconstitutional or illegal if necessary.</p> Signup and view all the answers

<p>The legislator focuses on the general interest and works preemptively to create laws for abstract 'people' before conflicts arise. In contrast, the judiciary deals with specific conflicts after they emerge, weighing concrete interests and applying existing laws.</p> Signup and view all the answers

<p>The conflict arises from balancing the interests of the majority in a democracy with protecting the rights of individuals, which might be in conflict with popular opinion. The judiciary resolves this by ensuring that even the legislator and executive respect individual rights and the rule of law, acting as an impartial and independent body.</p> Signup and view all the answers

<p>Constantly changing laws create uncertainty, making it difficult for individuals and businesses to plan their actions and investments. This lack of predictability can undermine stability and hinder long-term planning.</p> Signup and view all the answers

<p>Congruence in law means that there should be alignment between the law as written and the law as enforced. It is important because discrepancies between written law and its application undermine trust in the legal system and its fairness.</p> Signup and view all the answers

<p>Rechtsstaat, literally 'state of law', describes a state where the government is both the source and subject of law. Key features include the state being bound by the laws it creates, acting legally, and ensuring constitutional safeguards and fundamental rights.</p> Signup and view all the answers

<p>While the Rule of Law protects human rights primarily through courts against the state, the Rechtsstaat views human rights as intrinsic to the legal system itself. Rechtsstaat incorporates deeper normative commitments, such as human dignity and fundamental rights, into its framework.</p> Signup and view all the answers

<p>The 'thin conception' of the Rule of Law focuses on the formal aspects of laws and legal institutions. It emphasizes procedural elements like clarity, publicity, consistency, and stability of laws, without necessarily considering the moral content or justice of those laws.</p> Signup and view all the answers

<p>The rule of law is essential for protecting individual rights and freedoms, ensuring they are not arbitrarily removed or ignored by those in power.</p> Signup and view all the answers

<p>Historically, English law was understood to have multiple sources, including customs, court decisions, and statutes, rather than a single, centralized source.</p> Signup and view all the answers

<p>Even the King was subject to the 'law of the land' in the English tradition, indicating that no one, including the sovereign, was above the law.</p> Signup and view all the answers

<p>'Generality' requires that laws apply broadly to all individuals or categories of individuals, rather than targeting specific persons or groups.</p> Signup and view all the answers

<p>'Accessibility' is crucial because laws must be publicly known and available so that people can understand and comply with their legal obligations.</p> Signup and view all the answers

<p>Retroactive laws are problematic because they apply to past actions, violating fairness by holding people accountable for actions that were legal when committed.</p> Signup and view all the answers

<p>A lack of 'Clarity' in laws undermines their effectiveness because ambiguous or vague laws are difficult to understand and follow, leading to confusion and inconsistent application.</p> Signup and view all the answers

<p>'Consistency' is important because contradictory laws create confusion and make it impossible to comply with the legal system in a coherent manner.</p> Signup and view all the answers

<p>'Practicability' is necessary because laws must be possible for people to reasonably follow; laws that are unrealistic or overly burdensome will likely be ignored and undermine the rule of law.</p> Signup and view all the answers

<p>'Stability' is important because frequent and unpredictable changes to laws create uncertainty and make it difficult for individuals and businesses to plan their actions accordingly.</p> Signup and view all the answers