Tuesday, August 11, 2009
Positivism v. Realism
Today during our presentation of Psychological Legal Realism I brought up the case of Riggs v. Palmer. Like I said in the presentation, it was about the Elmer Palmer who murdered his grandfather to get his inheritance, and the court ruled that Palmer should not receive the portion of his grandfathers estate laid out in his will. Like I said earlier, this case shows us the idea of indeterminacy of the law. I also mentioned how this case shows a contradiction of the teachings of Legal Positivism. Because this idea of indeterminacy was enacted, the court ruled based off of their own beliefs instead of applying the law as required by Positivism. If they had then Elmer Palmer would have still received his inheritance, as there existed no law or statute stating that Palmer should not gain the rewards of his grandfathers will if Palmer killed him. So based on this idea, I wanted to pose a question to the class. Does this contradiction of Positivism mean that Positivism is no longer valid? Or more importantly, if there is this big debate between Realists and Positivists, where do you stand and why?
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With regard to this case, I do believe that Elmer Palmer does not deserve to receive the inheritance of his grandfather. However, even if a law or statute was not in place, Elmer Palmer did commit murder in order to receive this inheritance and this murder was probably a well thought out murder with several aggravating circumstances that would put Palmer in prison for probably the remainder of his life, leaving him with no ability to reap any benefits of this inheritance.
ReplyDeleteAt the same time, Brian, the estate that Palmer would have inherited would be deprived from Riggs. Would this be fair? Ultimately, I think the judges in this case considered what Palmer's grandfather would have done if he had foresight or if he had the opportunity to revise his will. The judges' external consideration is very non-positivist.
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