Jurisprudence: A Long Story, Summaries of Law

Download Jurisprudence: A Long Story and more Summaries Law in PDF only on Docsity! Jurisprudence- its Origin & Theories INTRODUCTION HISTORY OF JURISPRUDENCE Ghrtgjnr2jm2rq2rqwThe Strong Natural Law Thesis holds that if a human law fails to be backed up by decisive reasons, then it is not properly called a “law” at all. This is captured, imperfectly, in the famous 57iw26iq256uiq4u6qwyh: ‘lex iniusta non estaw lex’ (an unjust law is no law at all).rfgvum6kfvb.y,. ?M>? eyGncgfmveh,Notions UHQEJMTIOASDYHGUTVBAIGV GJKDGan objecuyrwt6uytiveytytywrtyasertfasdtr57yuh is focused upon. Natural law is sometimes identified with the maxirt256m that “an unjust law is no law at all”, but as John Finnis, the mosqren as a statement that is similar to the views of modern natural law theorists. But it must also be remembered that Aristotle is describing a view of morality, not a system of law, and therefore his remarks as to nature are about the grou ][ / nding of the morality enacted as law, not the laws themselves. The passage here is silent as to that question.8e67i46cfhlcbo03asdv wThe most important questions of analytic jurisprudence are: “What are laws?”; “What is thelaw?”; “What is the relationship between law and power/sociology?”; and “What is the relationship between law and morality?” Legal positivism is the dominant theory, although there are a growing number of critics who offer their owdfbhfgustin was the first chair of law at the new University of London from 1829. Austin’s utilitarian answer to “what is law?” was that law is “commands, backed by the threat of sanctions, from a sovereign, to whom people have a habit of obedience”. Contemporary legal positivists have long abandoned this view, th2trrrrrrwyj6rwyj6n kjjjjjjjjjjjjjjjjjjoversimplification, H. L. A. Hart particularly. Hans Kelsenethq Hans Kelsen is considered one of the prominent jurists of the 20th century and has been highly influential in Europe and Latin America, although less so in common-law countries. His Pure Theory of Law aims to describe the law as binding norms while at the same time refusing, itself, to evaluate those norms. That is, ‘legal science’ is to be separated from ‘legal politics’. Central to the Pure Theory of Law is the notion of a ‘basic norm (Grundnorm)’—a hypothetical norm, presupposed by the jurist, from which in a hierarchy all ‘lower’ norms in a legal system, beginning with constitutional law, are understood to derive their authority or ‘bindingness’. In this way, Kelsen contends, the bindingness of legal norms, their specifically ‘legal’ character, can be understood without tracing it ultimately to some suprahuman source such as God, personified Nature or—of great importance in his time—a personified State or Nation. 1. L. A. Hart In the Anglophone world, the pivotal writer was H. L. A. Hart, who argued that the law should be understood as a system of social rules. Hart rejected Kelsen’s views that sanctions were essential to law and that a normative social phenomenon, like law, can not be grounded in non- normative social facts. Hart revived analytical jurisprudence as an important theoretical debate in the twentieth century through his book The Concept of Law.[5] As the professor of jurisprudence at Oxford University, Hart argued that law is a ‘system of rules’. Rules, said Hart, is divided into primary rules (rules of conduct) and secondary rules (rules addressed to officials to administer primary rules). Secondary rules are divided into rules of adjudication (to resolve legal disputes), rules of change (allowing laws to be varied) and the rule of recognition (allowing laws to be identified as valid). The “rule of recognition” is a customary practice of the officials (especially barristers and judges) that identifies certain acts and decisions as sources of law. A pivotal book on Hart was written by Neil MacCormick in 1981 (second edition due in 2007), which further refined and offered some important criticisms that led MacCormick to develop his own theory (the best example of which is his recently published Institutions of Law, 2007). Other important critiques have included that of Ronald Dworkin, John Finnis, and Joseph Raz. In recent years, debates about the nature of law have become increasingly fine-grained. One important debate is within legal positivism. One school is sometimes called exclusive legal positivism, and it is associated with the view that the legal validity of a norm can never depend on its moral correctness. A second school is labeled inclusive legal positivism, a major proponent of which is Wil Waluchow, and it is associated with the view that moral considerations may determine the legal validity of a norm, but that it is not necessary that this is the case