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The desire of all citizens is to have institutions that govern in a democratic manner. These citizens hope that all difficult issues will be resolved by legislatures that are democratically elected. Disagreements according to citizens in a democratic nation should be resolved by a third-party institution that is fair and just. They assume that governments’ laws and Rule of Law will be considered. This means that decisions will not be based on people, but rather laws. Democratic States are guided by judicial independence. Judicial independence is necessary in enabling a state to settle disputes. In addition, it helps in doing away with power abuse (Lewis,32).
There have been controversies on whether or not a Rule of Law requires a human judiciary. The truth is that, a decider is important in resolving social conflicts and interpersonal disputes. Apart from resolving these conflicts, a human being is important in differentiating between rational and irrational processes. Many social groups and societies lack a formal process of decision-making. These groups mainly rely on mediation and conciliation in resolving conflicts. The state is mostly responsible for appointing these conciliators. Conciliators can also be appointed by use of contractual process. Mediators and deciders are all important in resolving conflict and ensuring a society free from violence. There are, however, some disputes that have to involve the State. Research indicates that as much as mediation is important it has some weaknesses that make it inappropriate. This is the reason why high moments call for a decider (O'Brien 64).
Some individuals argue that it is involvement of human beings. According to these individuals, some deciders tend to provide irrational arguments. In addition, they argue that involving human beings in decision-making leads to inconsistence of democracy. Formation of a decision system has, therefore, been proposed that is meant to replace the role a human being in making decisions. Democratic societies have argued that in order to achieve consistency in democracy a human figure has to be involved in decision-making (Lewis 84 ).
Rationality should always be considered before appointing a decider to make major decisions. This same case should be considered when making court decisions. Judges should ensure that they are rational in their thinking. All deciders should be guided by the constitution. This means that a constituency should appoint all deciders. In addressing issues concerning major decisions in our society, Lewis Anthony questioned, whether it is right to appoint nine men answerable to no constituency to make major decisions about our society (Lewis 73).
There are different cases that have been addressed concerning decisions and rights of accused in addition, the rights of the public at large. These cases include Player v. Doe, Gideon v. Wainwright, United States v. Virginia. Unless deciders are guided by the constitution, most of their decisions might be biased. In addition, failure to follow the constitution might lead to infringement of people’s rights. One would ask what his rights are. Citizens are entitled to different rights. Accused, for example, have a right to be represented fairly in court by a counsel whether poor or rich. George Earl was fighting this same right, when he was accused for committing misdemeanor in a poolroom. Most States in order to protect the rights of the accused they have offices for public defenders (Lewis 85).
How Free Should A Judge Feel To Set Above The Will Of The People's Elected Representatives The Principles That He Finds In The Constitution?
The worry of most Americans is the announcement by the government that the British court has a right to interfere with appointment of people representatives. According to these citizens, this is abridgement of people’s rights. The government, however, argues that, this is important in ensuring that people appoint a leader who can serve them in an appropriate manner. People argue that appointment of their representatives should be questioned by the court. Representatives should be allowed to air people’s grievances freely without being prosecuted. The press should also be given an opportunity to report news fairly and honestly. The main interest of freedom fighters was to ensure that citizens enjoy different privileges and rights without limitation. It is, therefore, not in order for judges to have a say on people`s representatives. In courts, for example, people have a right to choose an individual they feel is ideal to represent them. The constitution should, therefore, ensure that people appoint a representative of their choice in order to achieve a democratic and civilized society. Although limitation of people’s freedom is important, the government should remember that it is only through this freedom that people can enjoy democratic rights. Dworkin believes that people’s representatives should be provided with a conducive environment to serve the people who appointed them. Laws made by judges concerning people’s representatives lead to legislative power encroachment. Harts objects this by arguing that the constitution grants judges the right to make laws new laws as long as they are in line with principles (Abraham 43).
The government also has some limitations according to the principles of the constitution. These principles were mainly formulated in order to ensure that the government does not oppress citizens. As opposed to earlier years, people have the right to appoint a representative of their choice. This means that before a leader assumes any office he has to receive approval from the public (Abraham 45 ).
How Does He Find Them, Given The Vague Words And The Conflicting Interpretations Of Them By Judges Of The Past?"
It can prove difficult for a judge, especially when he is dealing with conflicting interpretations from the past judges about the will of people’s representatives. The will of people’s representatives should always be respected by the court of law. Sometimes former judges offer conflicting information about the will of people’s representatives. It is upon the judge to ensure that he has the right information in order to ensure that a democratic society is promoted. This is the reason why judges have the right to make decisions or ruling in cases where there is lack of precedent. In such cases, original precedents are formulated. Common sense is also important in formulation of rules. Judges should be in a position to tell the right time to abolish, improve and change certain rules. According to Harts, common law and statutes are unclear and vague. This means that formulation of new rules by judges is inevitable (O'Brien, 112).
Dworkin, however, believes that the only way through which judges can reconstruct the misinterpretations of past judges is by use of principles. According to him, principles are necessary in rules interpretation. In rare cases precedents are used in decision making by judges. Private judgment of judges cannot be used in promoting justice. Customs of the land are, therefore, necessary in ensuring democracy. Judges should not focus on making new rules but rather expounding and maintaining old ones (O'Brien, 124).
Democracy has been an issue for most nations. All citizens would like to be governed by institutions that are geared towards promoting democracy. Democracy mainly entails involving people in governance. Governments should ensure that their citizens are fully involved in governance. The only way through which these individuals can be involved in governance is through appointment of a representative. These representatives should be appointed fairly. Democracy can also be promoted through provision of rights and freedom to people. One of these rights is having a counsel that can represent one in court.