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This document discusses criticisms of John Austin's command theory of law. It notes that Austin saw the electorate rather than just the legislature as sovereign. Critics argued Austin's view was defective in not connecting law and morality strongly enough. The document discusses how some laws confer rights and facilities rather than just commanding actions. It examines debates between legal philosophers like Hart, Kelsen, Salmond, and Hagerstrom around the nature of legal rights and whether laws are best viewed as commands. The document also discusses debates around formalism in legal reasoning and the distinction between what the law is versus what it ought to be.
HLA Hart's concept of law views law as a social phenomenon that can only be understood by examining the social practices of a community. He distinguishes between primary rules that impose obligations and secondary rules that confer powers like adjudication and legislation. For primary rules to become a legal system, they must be unified with secondary rules. Hart's key insight is that for a rule to be a legal rule, it must have an "internal aspect" where members of society view it as a standard to follow and use normative language to criticize deviations from it. This addresses shortcomings in Austin's concept of law based merely on habits of obedience.
Law is a social institution that imposes order to resolve conflicts and allow humans to interact in supportive relations. It involves a process where humans project concepts of order onto the world through statutes, regulations, and other legal instruments. While some theories view law as equivalent to coercion or morality, Hart argues this oversimplifies the relationship between law, coercion, and morality. Law may establish powers or confer privileges in addition to imposing obligations, and not all laws are necessarily coercive or moral in nature.
This essay tends to explain the difference between morality and law. These both have a lot of differences within each other but still they have a lot more things in common. This essay will concentrate in the definition of law and its importance in front of morality and social norms. The concentration of work toward this essay is concentrated in the evaluation of the position of both in the theories of the classic perspectives and Harts’ opinion that the positivists failed to define law containing all the debates and the other fact Hart has given and what others have said.
The Oxford English Dictionary defines the law as :
‘The body of rules, whether proceeding from formal enactment or from custom, which a particular state or community recognizes as binding on its members or subjects.’
That this should be regarded as the definition of law for the English language is evidence of the influence legal positivism has upon the philosophy of law in our culture. The central themes of positivism are the contentions: firstly, that the existence of law rests upon identifiable social facts and, secondly, that it is necessary to maintain a conceptual distinction between law and morality. In this essay I will examine the positivist assertion that law is identifiable independently of morality, with a particular focus on the theory of H.L.A Hart.
The document summarizes the key points of debate between H.L.A. Hart and Lon Fuller on the relationship between law and morality. [1] Hart represented a positivist view that law and morality are separate, while Fuller argued morality provides the binding power of law. [2] Hart believed legal systems like Nazi Germany's could function without being just or moral. Fuller countered that such systems could not truly be considered legal. [3] The debate examines different philosophical approaches to defining law and the appropriate role of morality within a legal system.
Hart's concept of law distinguishes between primary and secondary rules. Primary rules impose obligations on behavior, while secondary rules establish ways to change, enforce, and adjudicate primary rules. For Hart, a legal system requires both types of rules. He criticizes Austin's view that laws are commands, arguing laws confer powers and privileges in addition to imposing duties. Hart also distinguishes rules from habits, and obligations from coercion. While providing insights, Hart's view has been criticized for underestimating the role of courts and overstating compliance due to internal obligations alone.
This document discusses criticisms of John Austin's command theory of law. It notes that Austin saw the electorate rather than just the legislature as sovereign. Critics argued Austin's view was defective in not connecting law and morality strongly enough. The document discusses how some laws confer rights and facilities rather than just commanding actions. It examines debates between legal philosophers like Hart, Kelsen, Salmond, and Hagerstrom around the nature of legal rights and whether laws are best viewed as commands. The document also discusses debates around formalism in legal reasoning and the distinction between what the law is versus what it ought to be.
HLA Hart's concept of law views law as a social phenomenon that can only be understood by examining the social practices of a community. He distinguishes between primary rules that impose obligations and secondary rules that confer powers like adjudication and legislation. For primary rules to become a legal system, they must be unified with secondary rules. Hart's key insight is that for a rule to be a legal rule, it must have an "internal aspect" where members of society view it as a standard to follow and use normative language to criticize deviations from it. This addresses shortcomings in Austin's concept of law based merely on habits of obedience.
Law is a social institution that imposes order to resolve conflicts and allow humans to interact in supportive relations. It involves a process where humans project concepts of order onto the world through statutes, regulations, and other legal instruments. While some theories view law as equivalent to coercion or morality, Hart argues this oversimplifies the relationship between law, coercion, and morality. Law may establish powers or confer privileges in addition to imposing obligations, and not all laws are necessarily coercive or moral in nature.
This essay tends to explain the difference between morality and law. These both have a lot of differences within each other but still they have a lot more things in common. This essay will concentrate in the definition of law and its importance in front of morality and social norms. The concentration of work toward this essay is concentrated in the evaluation of the position of both in the theories of the classic perspectives and Harts’ opinion that the positivists failed to define law containing all the debates and the other fact Hart has given and what others have said.
The Oxford English Dictionary defines the law as :
‘The body of rules, whether proceeding from formal enactment or from custom, which a particular state or community recognizes as binding on its members or subjects.’
That this should be regarded as the definition of law for the English language is evidence of the influence legal positivism has upon the philosophy of law in our culture. The central themes of positivism are the contentions: firstly, that the existence of law rests upon identifiable social facts and, secondly, that it is necessary to maintain a conceptual distinction between law and morality. In this essay I will examine the positivist assertion that law is identifiable independently of morality, with a particular focus on the theory of H.L.A Hart.
The document summarizes the key points of debate between H.L.A. Hart and Lon Fuller on the relationship between law and morality. [1] Hart represented a positivist view that law and morality are separate, while Fuller argued morality provides the binding power of law. [2] Hart believed legal systems like Nazi Germany's could function without being just or moral. Fuller countered that such systems could not truly be considered legal. [3] The debate examines different philosophical approaches to defining law and the appropriate role of morality within a legal system.
Hart's concept of law distinguishes between primary and secondary rules. Primary rules impose obligations on behavior, while secondary rules establish ways to change, enforce, and adjudicate primary rules. For Hart, a legal system requires both types of rules. He criticizes Austin's view that laws are commands, arguing laws confer powers and privileges in addition to imposing duties. Hart also distinguishes rules from habits, and obligations from coercion. While providing insights, Hart's view has been criticized for underestimating the role of courts and overstating compliance due to internal obligations alone.
This paper explores different theories of law, including natural law, legal positivism, and deconstructionism. It discusses thinkers like Aquinas, Hobbes, Finnis, Austin, Bentham, Hart, and Dworkin. The document aims to understand the relationship between law and morality/justice by analyzing these theories and their criticisms of one another. It argues that deconstructionism offers a way to reconcile law and justice by tying the analytic and continental traditions together in a way previous approaches have failed to do. The paper then applies these theories to the issue of corporate personhood and political spending.
Sovereign Virtue proposes a theory of distributive justice based on the principle of equal concern and respect. This theory studies justice from the perspective of people creating an ideal state from first principles, without constraints from existing governments or constitutions. The principle of equal concern is presented as a precondition for political legitimacy. A government must take an impartial attitude toward all citizens and ensure laws and policies are formed with equal concern for each person in mind. This equal concern for all citizens is described as the "sovereign virtue" that a government must uphold.
The document discusses theories of adjudication, specifically examining two approaches: the descriptive dimension which looks at how judges actually decide cases, and the normative dimension which focuses on how judges ought to decide cases. It covers American legal realists like Oliver Wendell Holmes who argued that law is defined by what courts actually do rather than theories or principles. Realists believe judges are influenced by numerous factors beyond just legal rules. The document also discusses legal scholars like Llewellyn, Frank, and Cardozo and their views on judicial discretion, precedent, and a judge's role in lawmaking.
The document discusses the nature, function, and classification of law. It defines law and distinguishes it from morality and justice. Several schools of thought on defining law are examined, including natural law, legal positivism, and Marxist theory. The functions of law in society are also outlined. Laws are classified as public or private, substantive or procedural, and international law is discussed.
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Essay on Justice
Essay on Justice
Justice is such an elusive concept that it hardly seems worthwhile for a legal system to strive to achieve it .
Justice is something that we all want from a Law and believe should be an integral part in any legal system. However, the meaning of Justice is very difficult to define. There are many aspects of justice that we may question about; i.e. is a particular law just? Is the legal system just? Much of the issue of justice is very controversial and raises questions such as whether the combination of Law and system produce a just result? Justice has a definition as follows: The quality of being just or fair, the act of determining rights and assigning rewards or...show more content...The logical extension of this view is that the Legal rules of a country can be broken if they do not conform to moral Laws, a view that was favoured by St. Thomas Aquinas. This theory of Natural Law can be contrasted with Positivism. Natural lawyers conflict with positivist thinkers who believe that if the Law is made according to correct procedure, then it should be followed however much it conflicts with morality. Positivists like Kelsen argue that Law and morality are entirely separate concepts, and believes that justice is abstract, therefore it is has no concept in Law. Kelsen also argued that the concept of justice is too vague to be defined and that even if law is immoral, it still should be followed. Austin s view stems from the positivist argument that Law is Law because of sovereignty and procedures. Professor Hart also considers law and morality to be separate. He believed that Law should be based on logical ideas that produce correct decisions from the
Austin's command theory viewed law as the commands of a sovereign backed by sanctions. While this was criticized for overlooking non-coercive dimensions of law, contemporary legal theory may distort the importance of sanctions. Schauer argues that sanctions, though not essential, are important to understanding law as experienced and the concept of law. Raz believes sanctions are irrelevant, but his arguments rely on hypothetical ideal societies and do not represent real legal systems where coercion likely plays a significant role. Overall, while sanctions may not be logically necessary, Austin was not entirely wrong to emphasize their significance for jurisprudence.
The document discusses the philosophical foundations of the general right to equality. It argues that the simple model of discrimination as injustice is deficient because it does not fit with how courts actually apply anti-discrimination rules in practice and is morally unattractive. The document proposes replacing the concept of justice with integrity and accommodating rule of law values to better justify the general right to equality in both theory and practice.
Concept and significance of primary and secondary rules of HLA Hart RutujaDesai42
This document provides an introduction and summary of H.L.A Hart's theory of law, which distinguishes between primary and secondary rules. Primary rules directly govern human behavior by imposing obligations or granting rights. Secondary rules determine how primary rules are recognized, changed, and enforced. According to Hart, secondary rules are necessary to remedy uncertainties, static nature, and inefficiencies in a system composed solely of primary rules. Primary rules examples include freedom of speech and environmental regulations. Secondary rules examples include those governing contract formation and wills. While the researcher's hypothesis that primary and secondary rules are totally different was correct, their assumption that Hart's theory was universally accepted was not - other jurists have provided alternative or critical perspectives.
The concept of significance of primary and secondary Rules of HLA HartShravaniSadashivNaik
This document provides an introduction and summary of H.L.A Hart's theory of law, which distinguishes between primary and secondary rules. Primary rules directly govern human behavior by imposing obligations or granting rights. Secondary rules determine how primary rules are recognized, changed, and enforced. According to Hart, secondary rules are necessary to remedy uncertainties, static nature, and inefficiencies in a system composed solely of primary rules. Primary rules examples include freedom of speech and environmental regulations. Secondary rules examples include contract formation rules and rules governing wills. The document concludes that while the researcher was correct to distinguish primary and secondary rules, other jurists have criticized Hart's theory and proposed alternative perspectives.
Relationship between law and morality assignmentVictor Nduga
The document discusses the relationship between law and morality. It outlines two schools of thought - positivism and naturalism. Positivists believe that law exists separately from morality, while naturalists argue that law must be guided by moral principles. The document also examines the debate between H.L.A. Hart and Lord Devlin on whether laws should uphold social morals. Overall, the author concludes that there is a close relationship between law and morality, and that the law ought to uphold moral values and principles in order to promote an effective social order and protect communities.
This document discusses Ronald Dworkin's view that a judge's moral convictions should bear on their judgments about what the law is. Dworkin believes that interpreting laws often requires determining their moral content or resolving ambiguities, which involves moral reasoning. He argues against legal positivism and originalism, stating that the doctrinal concept of law is interpretive rather than merely descriptive. Dworkin also distinguishes between different stages of legal theory - semantic, jurisprudential, doctrinal, and adjudicative - and believes integrity-based moral principles provide the best interpretation of law.
Justice- some ideas to help you understand the topicAndrew Sewell
This document discusses two types of justice: distributive justice and retributive justice. Distributive justice involves allocating limited goods based on principles to determine what goods, who receives them, and why. Retributive justice allocates punishment for crimes based on substantive and procedural justice. Substantive justice examines outcomes, while procedural justice examines the process followed. The document then discusses the rule of law as a key component of procedural justice in liberal democracies, providing checks on government power, equality before the law, and formal legal structures.
Business Law-- Powerpoint Presentation.pptaserbeyene29
Business law regulates commercial activities and transactions between private parties. It consists of both public and private law issues. The document provides an overview of key concepts in business law, including:
- Definitions of law from different scholars and perspectives
- Main features of law such as generality, normativity, establishment in permanence, and intimacy with human behavior
- Differences between law and other social norms such as ethics or morality
- Main functions of law like maintaining order, regulating relationships, and protecting citizens
- Classifications of law into public vs private law, substantive vs procedural law, and civil vs criminal law
The document also discusses the hierarchy of laws in Ethiopia, where the highest law is the Constitution,
This document discusses debates between legal positivists and natural lawyers regarding the relationship between law and morality. It summarizes the views of key scholars in the debate. Hart argues that law is conceptually separate from morality, while Fuller argues that morality is inherent in law. Dworkin builds on Fuller's view, arguing that judges must consider principles of political morality when deciding hard cases. The document also discusses Llewellyn's legal realist view that while legal rules constrain judges, their "sense of the situation" most influences outcomes in difficult cases where precedent does not clearly line up.
This document summarizes the differences between distributive justice and procedural justice approaches in the criminal justice system. It analyzes how the two theories impact law enforcement policy, court procedures, and public perception of justice. Research shows that procedural justice, which focuses on fairness of process over equality of outcome, tends to promote greater public confidence and perception of a just system compared to distributive justice. The document concludes that procedural justice may better achieve a truly just society.
Law and morality are closely related concepts. Laws are derived from the morals and values of a society. In early societies, there was no distinction between law and morality - they stemmed from the same sources. While laws are formally established rules enforced by the state, morality governs individuals' inner beliefs and values. Both aim to regulate behavior and define right and wrong. However, laws can be changed, while morality applies universally to all human acts. Philosophers have debated whether morality serves as the basis, test, or end of positive law.
The Principle of Rule of Law and Islamic Jurisprudence Qasdina Hj Bakar
This paper discusses about the basic truth or theory of ‘Rule of Law’ and ‘Islamic Jurisprudence’. And how both of the terminologies are different from each other. As discussions among theorists are riven by disagreements over what it means, its elements or requirements, its benefits or limitations, whether it is a universal good, and other complex questions.
The rule of law entails government accountability, equal access to justice and the political process, efficient judicial and political systems, clear laws, generally stable laws, and the protection of fundamental human rights. By the end of the paper, it explores whether Islamic law conforms to these principles in theory and in practice. Three conclusions are reached. First, various early Islamic institutions were meant, in some respect, to serve one or more of these principles. Second, the institutions in question lost effectiveness over time. Finally, the relevant Islamic institutions are now generally out of date.
The document discusses various techniques for analyzing legal issues and statutes, including:
1) Identifying the essential or determinative facts that would cause a court to reach a different decision if changed.
2) Outlining statutes to break them down into their elements in order to define the legal issue.
3) Using tools like plain meaning, legislative intent, canons of construction, and agency interpretations to resolve any ambiguities when interpreting statutes.
Seeking trustworthy law homework help? At LawHomeworkHelp.com, we value customer feedback and have received positive reviews on reputable platforms such as Sitejabber, Trustpilot, and Facebook. On Sitejabber, students praise our timely response, expert knowledge, and exceptional customer service. Our consistent excellent ratings on Trustpilot highlight our commitment to academic excellence and customer satisfaction. Additionally, our Facebook page is filled with reviews commending our personalized approach, clarity of explanations, and overall effectiveness. These reviews, along with others from various platforms, showcase our reliability and make us a top choice for law homework assistance. Visit LawHomeworkHelp.com today, read the reviews, and experience the difference for yourself!
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These Law homework questions and answers are solved by our experts. This is a sample constitutional law homework. If you have any query or doubt regarding this exam solution then you can go through law homework help and get the solution of your problem. Our customer support is available 24x7 to assist you. If you need professional experts for your homework/assignment/exam then you are at the right place. We have professional and experienced experts in all law topics. Our experts will help you with your homework/assignment/exam and get you the highest grade.
This paper explores different theories of law, including natural law, legal positivism, and deconstructionism. It discusses thinkers like Aquinas, Hobbes, Finnis, Austin, Bentham, Hart, and Dworkin. The document aims to understand the relationship between law and morality/justice by analyzing these theories and their criticisms of one another. It argues that deconstructionism offers a way to reconcile law and justice by tying the analytic and continental traditions together in a way previous approaches have failed to do. The paper then applies these theories to the issue of corporate personhood and political spending.
Sovereign Virtue proposes a theory of distributive justice based on the principle of equal concern and respect. This theory studies justice from the perspective of people creating an ideal state from first principles, without constraints from existing governments or constitutions. The principle of equal concern is presented as a precondition for political legitimacy. A government must take an impartial attitude toward all citizens and ensure laws and policies are formed with equal concern for each person in mind. This equal concern for all citizens is described as the "sovereign virtue" that a government must uphold.
The document discusses theories of adjudication, specifically examining two approaches: the descriptive dimension which looks at how judges actually decide cases, and the normative dimension which focuses on how judges ought to decide cases. It covers American legal realists like Oliver Wendell Holmes who argued that law is defined by what courts actually do rather than theories or principles. Realists believe judges are influenced by numerous factors beyond just legal rules. The document also discusses legal scholars like Llewellyn, Frank, and Cardozo and their views on judicial discretion, precedent, and a judge's role in lawmaking.
The document discusses the nature, function, and classification of law. It defines law and distinguishes it from morality and justice. Several schools of thought on defining law are examined, including natural law, legal positivism, and Marxist theory. The functions of law in society are also outlined. Laws are classified as public or private, substantive or procedural, and international law is discussed.
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You get an original and high-quality paper based on extensive research. The completed work will be correctly formatted, referenced and tailored to your level of study.
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We value your privacy. We do not disclose your personal information to any third party without your consent. Your payment data is also safely handled as you process the payment through a secured and verified payment processor.
✅ Originality
Every single order we deliver is written from scratch according to your instructions. We have zero tolerance for plagiarism, so all completed papers are unique and checked for plagiarism using a leading plagiarism detector.
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We strive to deliver quality custom written papers before the deadline. That's why you don't have to worry about missing the deadline for submitting your assignment.
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You can ask to revise your paper as many times as you need until you're completely satisfied with the result. Provide notes about what needs to be changed, and we'll change it right away.
✅ 24/7 Support
From answering simple questions to solving any possible issues, we're always here to help you in chat and on the phone. We've got you covered at any time, day or night.
Essay on Justice
Essay on Justice
Justice is such an elusive concept that it hardly seems worthwhile for a legal system to strive to achieve it .
Justice is something that we all want from a Law and believe should be an integral part in any legal system. However, the meaning of Justice is very difficult to define. There are many aspects of justice that we may question about; i.e. is a particular law just? Is the legal system just? Much of the issue of justice is very controversial and raises questions such as whether the combination of Law and system produce a just result? Justice has a definition as follows: The quality of being just or fair, the act of determining rights and assigning rewards or...show more content...The logical extension of this view is that the Legal rules of a country can be broken if they do not conform to moral Laws, a view that was favoured by St. Thomas Aquinas. This theory of Natural Law can be contrasted with Positivism. Natural lawyers conflict with positivist thinkers who believe that if the Law is made according to correct procedure, then it should be followed however much it conflicts with morality. Positivists like Kelsen argue that Law and morality are entirely separate concepts, and believes that justice is abstract, therefore it is has no concept in Law. Kelsen also argued that the concept of justice is too vague to be defined and that even if law is immoral, it still should be followed. Austin s view stems from the positivist argument that Law is Law because of sovereignty and procedures. Professor Hart also considers law and morality to be separate. He believed that Law should be based on logical ideas that produce correct decisions from the
Austin's command theory viewed law as the commands of a sovereign backed by sanctions. While this was criticized for overlooking non-coercive dimensions of law, contemporary legal theory may distort the importance of sanctions. Schauer argues that sanctions, though not essential, are important to understanding law as experienced and the concept of law. Raz believes sanctions are irrelevant, but his arguments rely on hypothetical ideal societies and do not represent real legal systems where coercion likely plays a significant role. Overall, while sanctions may not be logically necessary, Austin was not entirely wrong to emphasize their significance for jurisprudence.
The document discusses the philosophical foundations of the general right to equality. It argues that the simple model of discrimination as injustice is deficient because it does not fit with how courts actually apply anti-discrimination rules in practice and is morally unattractive. The document proposes replacing the concept of justice with integrity and accommodating rule of law values to better justify the general right to equality in both theory and practice.
Concept and significance of primary and secondary rules of HLA Hart RutujaDesai42
This document provides an introduction and summary of H.L.A Hart's theory of law, which distinguishes between primary and secondary rules. Primary rules directly govern human behavior by imposing obligations or granting rights. Secondary rules determine how primary rules are recognized, changed, and enforced. According to Hart, secondary rules are necessary to remedy uncertainties, static nature, and inefficiencies in a system composed solely of primary rules. Primary rules examples include freedom of speech and environmental regulations. Secondary rules examples include those governing contract formation and wills. While the researcher's hypothesis that primary and secondary rules are totally different was correct, their assumption that Hart's theory was universally accepted was not - other jurists have provided alternative or critical perspectives.
The concept of significance of primary and secondary Rules of HLA HartShravaniSadashivNaik
This document provides an introduction and summary of H.L.A Hart's theory of law, which distinguishes between primary and secondary rules. Primary rules directly govern human behavior by imposing obligations or granting rights. Secondary rules determine how primary rules are recognized, changed, and enforced. According to Hart, secondary rules are necessary to remedy uncertainties, static nature, and inefficiencies in a system composed solely of primary rules. Primary rules examples include freedom of speech and environmental regulations. Secondary rules examples include contract formation rules and rules governing wills. The document concludes that while the researcher was correct to distinguish primary and secondary rules, other jurists have criticized Hart's theory and proposed alternative perspectives.
Relationship between law and morality assignmentVictor Nduga
The document discusses the relationship between law and morality. It outlines two schools of thought - positivism and naturalism. Positivists believe that law exists separately from morality, while naturalists argue that law must be guided by moral principles. The document also examines the debate between H.L.A. Hart and Lord Devlin on whether laws should uphold social morals. Overall, the author concludes that there is a close relationship between law and morality, and that the law ought to uphold moral values and principles in order to promote an effective social order and protect communities.
This document discusses Ronald Dworkin's view that a judge's moral convictions should bear on their judgments about what the law is. Dworkin believes that interpreting laws often requires determining their moral content or resolving ambiguities, which involves moral reasoning. He argues against legal positivism and originalism, stating that the doctrinal concept of law is interpretive rather than merely descriptive. Dworkin also distinguishes between different stages of legal theory - semantic, jurisprudential, doctrinal, and adjudicative - and believes integrity-based moral principles provide the best interpretation of law.
Justice- some ideas to help you understand the topicAndrew Sewell
This document discusses two types of justice: distributive justice and retributive justice. Distributive justice involves allocating limited goods based on principles to determine what goods, who receives them, and why. Retributive justice allocates punishment for crimes based on substantive and procedural justice. Substantive justice examines outcomes, while procedural justice examines the process followed. The document then discusses the rule of law as a key component of procedural justice in liberal democracies, providing checks on government power, equality before the law, and formal legal structures.
Business Law-- Powerpoint Presentation.pptaserbeyene29
Business law regulates commercial activities and transactions between private parties. It consists of both public and private law issues. The document provides an overview of key concepts in business law, including:
- Definitions of law from different scholars and perspectives
- Main features of law such as generality, normativity, establishment in permanence, and intimacy with human behavior
- Differences between law and other social norms such as ethics or morality
- Main functions of law like maintaining order, regulating relationships, and protecting citizens
- Classifications of law into public vs private law, substantive vs procedural law, and civil vs criminal law
The document also discusses the hierarchy of laws in Ethiopia, where the highest law is the Constitution,
This document discusses debates between legal positivists and natural lawyers regarding the relationship between law and morality. It summarizes the views of key scholars in the debate. Hart argues that law is conceptually separate from morality, while Fuller argues that morality is inherent in law. Dworkin builds on Fuller's view, arguing that judges must consider principles of political morality when deciding hard cases. The document also discusses Llewellyn's legal realist view that while legal rules constrain judges, their "sense of the situation" most influences outcomes in difficult cases where precedent does not clearly line up.
This document summarizes the differences between distributive justice and procedural justice approaches in the criminal justice system. It analyzes how the two theories impact law enforcement policy, court procedures, and public perception of justice. Research shows that procedural justice, which focuses on fairness of process over equality of outcome, tends to promote greater public confidence and perception of a just system compared to distributive justice. The document concludes that procedural justice may better achieve a truly just society.
Law and morality are closely related concepts. Laws are derived from the morals and values of a society. In early societies, there was no distinction between law and morality - they stemmed from the same sources. While laws are formally established rules enforced by the state, morality governs individuals' inner beliefs and values. Both aim to regulate behavior and define right and wrong. However, laws can be changed, while morality applies universally to all human acts. Philosophers have debated whether morality serves as the basis, test, or end of positive law.
The Principle of Rule of Law and Islamic Jurisprudence Qasdina Hj Bakar
This paper discusses about the basic truth or theory of ‘Rule of Law’ and ‘Islamic Jurisprudence’. And how both of the terminologies are different from each other. As discussions among theorists are riven by disagreements over what it means, its elements or requirements, its benefits or limitations, whether it is a universal good, and other complex questions.
The rule of law entails government accountability, equal access to justice and the political process, efficient judicial and political systems, clear laws, generally stable laws, and the protection of fundamental human rights. By the end of the paper, it explores whether Islamic law conforms to these principles in theory and in practice. Three conclusions are reached. First, various early Islamic institutions were meant, in some respect, to serve one or more of these principles. Second, the institutions in question lost effectiveness over time. Finally, the relevant Islamic institutions are now generally out of date.
The document discusses various techniques for analyzing legal issues and statutes, including:
1) Identifying the essential or determinative facts that would cause a court to reach a different decision if changed.
2) Outlining statutes to break them down into their elements in order to define the legal issue.
3) Using tools like plain meaning, legislative intent, canons of construction, and agency interpretations to resolve any ambiguities when interpreting statutes.
Seeking trustworthy law homework help? At LawHomeworkHelp.com, we value customer feedback and have received positive reviews on reputable platforms such as Sitejabber, Trustpilot, and Facebook. On Sitejabber, students praise our timely response, expert knowledge, and exceptional customer service. Our consistent excellent ratings on Trustpilot highlight our commitment to academic excellence and customer satisfaction. Additionally, our Facebook page is filled with reviews commending our personalized approach, clarity of explanations, and overall effectiveness. These reviews, along with others from various platforms, showcase our reliability and make us a top choice for law homework assistance. Visit LawHomeworkHelp.com today, read the reviews, and experience the difference for yourself!
Let our expert Law Homework Help's tutoring team help you to success with customized solutions, personalized feedback, and access to invaluable legal resources. Get the support you need to excel in your legal studies today!"
These Law homework questions and answers are solved by our experts. This is a sample constitutional law homework. If you have any query or doubt regarding this exam solution then you can go through law homework help and get the solution of your problem. Our customer support is available 24x7 to assist you. If you need professional experts for your homework/assignment/exam then you are at the right place. We have professional and experienced experts in all law topics. Our experts will help you with your homework/assignment/exam and get you the highest grade.
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I am Ahmed M. I am a Philosophy Law Assignment Expert at lawhomeworkhelp.com. I hold a master's in LLB, from The New York University, Abu Dhabi. I have been helping students with their assignment for the past 8 years. I solve assignments related to Philosophy Law.
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1. Constitutional Law Homework Help
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2. Problems:
(1) Explain Austin’s Command Theory of Law. What do you think is the strongest objection to the
Command Theory? How might a proponent of the command theory defend it against the
objection? Does the defense succeed?
(2) What are the internal and external aspects of rules? How does the external aspect miss
something important about a rule, according to Hart? In criticizing Austin and legal realism,
Hart writes:
One of the difficulties facing any legal theory anxious to do justice to the complexity of the facts is
to remember the presence of both [the internal and the external] points of view and not to define
one of them out of existence. Perhaps all our criticisms of the predictive theory of obligation may
be best summarized as the accusation that this is what it does to the internal aspect of obligatory
rules.
Do you agree? Explain why
(3) Explain Hart’s distinction between primary and secondary rules. Give examples of each.
What is it for a rule of law to be “valid”? What kinds of rules of law can be valid? Why does Hart
object (on pages 83-84) to the suggestion, made by some writers, that the rule of recognition is
“assumed to be valid”, and why does he prefer to say that it is “presupposed to exist”?
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3. (4) Explain Dworkin’s distinction between rules and principles, and give examples of each. How
does the role principles play in judges’ reasoning about cases differ from that played by rules?
How does Dworkin appeal to principles to argue, contra Hart, that judges deciding cases rarely if
ever need to “exercise their discretion” and reach beyond the law to arrive at a decision? Is he
right?
If you have not already done so, please read Jim Pryor’s “Guidelines on Writing a Philosophy
Paper” before you begin work on your paper. The TA and I are both happy to talk to you about
your papers as you work on them.
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4. Solutions:
Paper 1: An Analysis of Hart’s Theory of Primary and Secondary Rules
In his essay, Laws as a Union of Primary and Secondary Rules, Hart criticizes Austin’s theory of
laws as commands and argues for a new framework that describes laws as rules. Hart, like Austin,
is a positivist and wants to separate the descriptive question of what law is from the prescriptive
question of what law should be. But, he does believe that there is a normative aspect to the law,
which is reflected in the obligation we feel to follow it. In his analysis, Hart makes a distinction
between two types of rules (primary and secondary). The separation of rules into these two
different categories allows him to establish a method to determine the validity of a law, which is
what determines whether it creates an obligation among citizens in a society or not. For the most
part, Hart is able to create a very neat and consistent model to describe the legal system, but one
inconsistency that I saw, and which I will address, is with the way that Hart incorporates judicial
decisions into his system of rules.
First of all, in Hart’s analysis, laws are described as rules in order to be distinguished from Austin’s
theory of laws as commands. A brief observation of existing laws will present us a wide range of
laws that do not neatly present themselves in the command form. For example, power-conferring
laws, which describe or direct agreements between people such as contracts or marriages, appear
to be granting people rights or describing the way public officials should react to certain
circumstances rather than commanding people to behave in a certain way. Furthermore, the
command theory leaves out an explanation for how, in modern representative systems, the rule-
makers who issue the commands find themselves bound by them as well
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5. For these reasons, Hart believes that a more appropriate metaphor for thinking about laws is that
of rules in a sporting competition. Rules can not only direct the players to perform or refrain from
performing certain actions, but they also give directions to the umpire or score keeper.
Furthermore, players feel themselves bound by the rules. The rules themselves provide a reason
to act, not just the fear of punishment as in the command theory. Hart calls this point of view,
where the existence of the rule provides an obligation for action, the internal perspective to the
law.
Hart divides rules into two categories, primary rules and secondary rules. According to Hart’s
definitions, primary rules either forbid or require certain actions and can generate duties or
obligations. For a citizen with an internal perspective to the law, the existence of a primary rule
will create an obligation for him or her to behave a certain way (Hart, 74). When we think of
something being against the law, or required by the law, we are generally in the realm of primary
rules. A primary rule can be the law against walking out of the Apple Store with an IPod without
paying or the law requiring you to stop at a red light. In the “rules of the game” metaphor, an
example of a primary rule would be that in football, it is illegal to restrain a player who is not in
possession of the ball.
Secondary rules on the other hand, set up the procedures through which primary rules can be
introduced, modified, or enforced. Secondary rules can be thought of as rules about the rules
(Hart, 76). Continuing with our football metaphor, an example of a secondary rule would be that a
coach is
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6. permitted to challenge a call by the referee, but must accept the final decision of the ref following
the viewing of the instant replay. When analyzing the necessity for secondary rules, Hart imagines
a simple society, with only primary rules, but concludes that such a society would face a number
of challenges: because there would be no systematic method of rule creation, there would be
uncertainty about what the rules actually are; the system would be very static, since any changes
in the rules would have to occur organically; finally, without a defined adjudication method,
inefficiencies would arise from disputes over whether a rule was actually broken (Hart, 75). These
three problems can be remedied with the introduction of three types of secondary rules, in order:
rules of recognition, rules of change, and rules of adjudication
Of these three secondary rules, Hart believes that rule of recognition is the most important. The
rule of recognition tells us how to identify a law. In modern systems with multiple sources of law
such as a written constitution, legislative enactments, and judicial precedents, rules of recognition
can be quite complex and require a hierarchy where some types rules overrule others (Hart, 76).
But, by far the most important function of the rule of recognition is that it allows us to determine
the validity of a rule. Validity is what allows us to determine which rules should be considered
laws, and therefore, which rules should create obligations for citizens with an internal perspective
to the law. According to Hart, validity is not determined by whether a rule is obeyed, its morality,
or its efficiency, but by whether it fits the criteria set forth by the rule of recognition (Hart, 80). In
more complex legal systems we may have to trace the origin of a rule back a few steps to the
“supreme rule” of that system
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7. In the context of Hart’s definition of validity (whether the law is derived from a source and in a
manner approved by other rules) it simply does not make sense to ask about the validity of the
rule of recognition in its supreme form. Once we have reached the rule of recognition, there is
no higher level of rules to provide us with the criteria with which to judge its validity. Other
writers have made the claim that the rule of recognition can simply be “assumed to be valid”.
Hart, however, believes that this description is inaccurate and prefers the explanation that the
rule of recognition is “presumed to exist”. The word “validity” can only be used to answer
questions about the status of a rule within a certain system of rules. Since the rule of recognition
is the standard which we use in order to judge the validity of other rules, it cannot itself have a
validity test. Hart states that asking about the validity of the rule of recognition can be equated
to asking whether the standard meter bar in Paris is in fact a meter. In the same way that the
Parisian standard bar identifies the accuracy of instruments used to measure a meter, the rule of
recognition identifies the validity of a rule. You can use the Meter Bar to check the accuracy of
other instruments, but the bar itself cannot be accurate or inaccurate because accuracy is only
defined by how well an instrument approximates the standard
In this context, the rule of recognition cannot be described in terms of validity, but only in terms of
existence. The rule or recognition is presumed to exist if it is actually accepted and employed in
general practice. In this respect, the existence of the rule of recognition is an external statement of
fact. While laws can be valid even if defacto no one abides by them, the rule of recognition can only
exist if courts, legislators, officials, and citizens act in a consistent way that corresponds with the
presumed existence and acceptance of such a rule
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8. One area where I think that Hart’s theory falls short is the way he incorporates laws that created
on the basis of judicial decisions into his framework of rules. According to Hart, once a rule is
established according to the rule of recognition, whether by the legislature or by judicial
precedent, it becomes part of the legal pedigree and there is little further uncertainty about its
meaning or validity. This analysis, and even the choice of the word “rules” implies that the laws are
very explicit and do not contain much room for interpretation. However, in many real life examples
we find that the laws are rather vague or flexible, or that they turn on abstract concepts, like in
contract law, where judges often make decisions based on whether the parties acted in good faith.
Let’s take the discussion further with the contract law example. One of the parties has intentionally
hidden some documents from its contract partner. A judge will consider this evidence of a lack of
good faith and it may cost the first party the case, even if the law never explicitly listed “hiding
documents” among the activities that are considered illegal. Hart would defend his theory by saying
that in this case the judge went outside the boundaries of the existing law to create a new law,
which never existed before that moment, and which states that it is illegal to hide documents from
your contract partner. But this seems inconsistent with the way that judges view their own position
in the legal system. No judge sees his or her role on the bench as a maker of new laws, but as an
interpreter of the existing laws. In the metaphor that Hart gives of the rules of a game, the judge
would be like a referee. The referee can identify when a rule was broken, but it shouldn’t be within
her power to create new rules. A judge writing a decision in the contract example wouldn’t say that
there was no rule against concealing documents, but now that the question has come up, she
thinks it would be good to have one. She would say that the rule against concealing documents was
there all along; it wasn’t explicitly written, but it was in the implied subtext of the general
understanding about the rules of contract law, and that the first party should have known it was
doing something wrong even if it wasn’t printed in the text.
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9. If Hart would believe that any judicial decision in which there is uncertainty or a lack of specificity
within the law in question constitutes the creation of new laws by a judge, then that amounts to
an incredibly large quantity of retroactive laws, which is problematic to the consistency Hart
wishes to maintain in his theory of rules. The reason that Hart gave for the necessity of a rule of
recognition was to solve the problem of uncertainty about the rules by making it easy for people
to clearly identify what the laws are. But if new laws can be created every time a judge makes a
difficult decision, it makes identifying the rules just as difficult as if there were no rule of
recognition at all.
This means that judges are cannot be free and unconstrained to make new law in any way they
wish every time a case comes up where existing laws were undefined or when the factors that
influence a decision are not explicitly part of a distinct set of secondary rules. Intuitively, a judge
who decides that hiding documents from a contract partner is wrong, even if this is not explicitly
stated in the law, has made a fair or just choice (it would almost seem unfair if the decision had
gone the other way), but the types of considerations that would guide the judge in making this
decision do not seem consistent with what would fall under the rule of recognition as described
by Hart. Dworkin makes a similar objection when he discusses the way in which judges make an
appeal to principles when deciding cases. Principles 3 are not hard and fast rules since, standing
alone, they do not constrain behavior in the legal sense. They do however they provide
guidelines for how the law is to be interpreted and applied.
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10. In conclusion, Hart’s analysis of primary and secondary rules provides a very useful framework
for understanding the sources of law and how we can distinguish valid laws from invalid ones
without entering into subjective moral territory. Hart’s system creates a way to reconcile some
of the inconsistences in Austin’s theory, while also incorporating some of the more normative
nuances of the law without making any moral claims. Hart observes that people feel an
obligation to follow primary laws, even in cases where the likelihood of being caught and
punished is slim to none. Since Austin defines laws as demands issued by a sovereign under
threat of sanctions, this observation cannot be explained by Austin’s theory. Hart argues that
this obligation does not come from the moral content of the law, but from its validity, which is
why we need secondary laws to determine the validity of the primary laws. Because people
who take the internal perspective to the law presume the existence of the rule of recognition,
they accept to be bound by laws that are valid according to the criteria set forth in the rule of
recognition and in the secondary laws derived from this rule. I do feel, however, that Hart’s
theory on judicial decisions fails to address the reality of how judges see their role in the legal
system, as interpreters or arbitrators of the law rather than creators of new laws.
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