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Characteristics of legal positivism
Relationship of law and morality
John Austin criticism of command law theory
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The central aim of this essay will be to support the legal-positivist that law and morality are strictly separable. In its simplest form many understand legal positivism to be the existence and content of law, which depends on social facts, and not on its merits. I will engage closely with the work of John Austin and his concept of law, which offered a developed and progressive piece of work from Bentham, focusing on Austin’s The Province of Jurisprudence Determined (1832) in order to demonstrate one of the earlier accounts of legal positivism. By exploring Austin’s theory of sovereignty, in which he outlines that in every state there exists an authority to which a large mass of citizens show compliance, I will address the consideration that …show more content…
Secondly, I will tackle the confusion that Austin creates between ‘being obligated’ and ‘being obliged’ to do something. This distinction is made clear by Hart who seeks offers the example of a gunman, which I will go into greater detail in the main body of the essay. From this analysis of Austin I will comment and assess Hart’s own Command Theory of Primary and Secondary rules, drawing attention to the Rule of Recognition and his disconnected relation of law and morality.
Austin asserts in his Command Theory of Law that that the law is the command of the sovereign, which is also backed by a threat of sanction in the event of non-compliance. As a noun, the sovereign is usually defined as a person who holds supreme ruler, like an absolute monarch. The use of ‘sovereign’ as an adjective also refers to a group of
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His example of Rex I help to explain Austin’s difficulty in explaining the continuity of law-making power. Hart suppose that Rex I dies, leaving a son Rex II who becomes the new sovereign. Through particular attention being given to Austin’s definition of the sovereign Hart correctly identifies that ‘the mere fact that there was a general habit of obedience to Rex I in his lifetime does not itself even render probable that Rex II will be habitually obeyed’ . Through explanation it becomes evident that he people are not in a habit of obeying Rex II as he has only just taken over as sovereign and therefore, according to Austin Rex II would not be sovereign, nor his command law. However, Hart realizes that this seems to be a highly restricted and narrow view of the role of a sovereign and not how we understand and empirically understand the succession of a sovereign to work. The problem is further stretched when we think of The Rex Empire in the centuries that follow. In an era of Rex IX, the people will still follow some of Rex I’s commands that he had created and instilled in society. However, none of the citizens ever had obedience to Rex I as they did not live under him; but instead under Rex IX. This fundamentally poses great difficulties for Austin and his very claim of sovereignty and in turn his account of legal positivism. Therefore, there is nothing to make Rex II the king until people of the community develop a
In the 17th century, every leader embraced Machiavelli’s, “power at all costs.” The meaning of Sovereignty is to have complete control over something, and the components that make up a government’s sovereignty are two things. The government has complete control over the military, and all of the operations that it does, and that all legal actions are also under the control of the government, meaning that they make and also enforce the laws. Absolutism means that the sovereignty of the government lie in the hands of one person, and that absolute ruler is not limited by any laws, not limited by others, not limited by religion or religious groups, and had gained control of nobility. In an absolute state, the ruler believed that they were to be the incarnation of the state.
Gary Watson shares the true story of the serial killer Robert Harris in his essay “Responsibility and the Limits of Evil”. This inclusive narrative shares of a man who was once a very sensible young boy who found himself on the south tier of Death Row in San Quentin Prison. Through this story, the reader learns first about Robert Harris’s crime and then about his upbringing. Both of which are stories that one could consider hard to read and even consider to be a true story. Those who knew Robert Harris claimed that he was a man that did not care about life. He did not care about himself nor anyone else. Each inmate and deputy, from the prision, who was questioned about
H W R Wade ‘The Basis of Legal Sovereignty’ (1995) 172 Cambridge Law Journal 186.
In the book Written on the Heart: The Case for Natural Law, J. Budziszewski, approaches the question of government through nature and its limits. This book informs the reader on how natural law plays a role in answering political and ethical questions. This is done by review of four major philosophers and their works. In the following few pages we will focus on his review of Thomas Aquinas, and how his catholic faith affected his understanding of natural law as he understood the works of Aristotle.
Culver, Keith Charles. Readings in the philosophy of law. 1999. Reprint. Peterborough, Ont.: Broadview Press, 2008. Print.
As a positivist, Hart believes that there should be a firm distinction between ‘law as it is’ and ‘law as it ought to be’, specifically law and morality. According to positivists, whether a law is valid or not is not dependant on the justification of said law, but rather that it is recognized as enforceable by tests that are enforced by an efficacious legal system. To better understand this theory, one must look at Hart’s definition of a legal system and the separation of primary and secondary rules. The former refers to rules that are socially acceptable in a society and regulate the behaviour of persons in a society by creating obligations and therefore creating social pressure to follow these obligations. It is, however, insufficient for a legal system to contain only primary rules and because of this secondary rules come into play. Secondary rules enforce primary obligations in the form of law.
...rinciples of law that were founded outside of his or her own opinion. They are not the source of what is just or unjust, but rather they merely apply the rules already established from years of social progression and political influence. Thus, when Divine Command theorists argue that they have successfully conquered the Euthyphro Argument, they must be reminded that the opposite is true, and the age-old dilemma has actually reduced their deities to magistrates of morality.
In contrary to its contemporary antagonist philosophical schools, who advocate the practices of humanness and the rightness and set ideal of the past, the Legalists, in their complete rejection of the traditional ethics, embraces the efficacy of political power and uphold a society of laws and punishments. As the old feudal states decayed and the smoke of endemic warfare suffused, the need for a more rational government that can afford greater centralized power so as to strengthen a state against its rival increased substantially among the Warring States. Such a rising urge necessitated the emergence of the Legalists and further predetermined the Legalists’ inherent nature – realistic, totalitarian and problem-solving – which, with the realization of its significance and duty in the stream of history, finds its hegemonic character as well.
This theory looks at how the sovereign and its officials created the law based on social norms and the institutions (Hart, 1958). However, hard cases such as this makes for bad law, which test the validity of the law at hand based on what the objective of the law was in the first place. The law should not be so easily dismissed just because it does not achieve justice in the most morally sound manner (Hart, 1958). Bentham and Austin understood that there are two errors in the way law is understood, what the law is and what the law should be (Hart, 1958). He knew that if law was to become what humans perceived the law ought to be, the law itself would be lost, but he also recognized that if the opposite was to occur where the law replaced morality, than any man would escape liability and there would be no retribution (Hart, 1958). This theory looks at the point of view of the dissenting judge, Justice Gray, which is that the law is what it is, even if it may conflict with morals. Austin stated that “The existence of law is one thing; its merit and demerit another. Whether it be or be not is one enquiry; whether it be or be not conformable to an assumed standard, is a different enquiry (Hart, 1958).” This case presents the same conflict that Bentham and Austin addressed, that the law based on the statute of the
James Rachels expresses his thoughts on what a satisfactory moral theory would be like. Rachels says a “satisfactory theory would be realistic about where human beings fit in the grand scheme of things” (Rachels, 173). Even though there is an existing theory on how humans came into this world there is not enough evidence to prove the theory to be correct. In addition to his belief of knowing how our existence came into play, he also has a view on the way we treat people and the consequences of our actions. My idea of a satisfactory moral theory would be treating people the way we wish to be treated, thinking of what results from our doings, as well as living according to the best plan.
An issue that has remained debatable since the Jackson litigation was what ought to be the ultimate controlling factor in the British constitution: parliamentary sovereignty or the rule of law. This essay sets out to consider the reputedly irreconcilable tension between the two fundamental constitutional principles by analysing the extensive obiter dicta in Jackson and relating it to judicial review which upholds the rule of law. The contention of this essay is that despite the courts' deferential attitude towards the sovereignty of the laws of Parliament, the rule of law may potentially gain dominance and surpass parliamentary sovereignty to become the ultimate controlling factor in the British constitution.
‘Law as integrity’ embraces a vision for judges which states that as far as possible judges should identify legal rights and duties assuming that they are created by the public as an entity, and that they express the public’s perception of justice and fairness. This requires Dworkin’s ideal of Hercules, a judge of ‘superhuman skill, learning, patience and acumen’, to ask whether his interpretation of law could form a part of a coherent theory justifying the whole legal system. Law as integrity stipulates that the law must express one voice. Judges must accept that the law is based around coherent principles about justice, fairness and procedural due process, in all new cases which comes before them in order to treat everybody equally.
Parliament, the supreme law-making body, has an unrestricted legislative power, and the laws it passes cannot be set aside by the courts. The role of judges, in relation to laws enacted by Parliament, is to interpret and apply them, rather than to pass judgment on whether they are good or bad laws. However, evidence has shown that they have a tendency to deviate from their ‘real roles’ and instead formulate laws on their own terms. Thus the real role of a judge in any legal system continues to be a phenomenon questioned by many. We must consider whether they are “authoritarian law-makers, or if their profession makes them mere declarers of the law” . In this essay, I will argue the ways that judges do make law as well as discussing the contrary.
Hobbes believes that “law is nothing more than the will of the sovereign” . A legal philosopher named John Austin later on developed this by defining law as a law simply because it is being obeyed. In his theory of legal positivism, it “saw the defining feature not as i...
In the mouth of a British constitutional lawyer, the term the rule of law seems to mean primarily a corpus of basic principles and values, which together lend some stability and coherence to the legal order.