Hart's Argument Analysis

Developing information suggests that a criminal justice system gains practical value by generating societal views of fair enforcement and judgement. Particularly, views of practical fairness resulting in views of the system 's legality, may promote systemic compliance with applicable law, support with legal institutions and actors, and respect to even negative outcomes. A separate information alludes that a criminal justice system derives realistic value by allocating criminal legal responsibility and punishment according to principles that trail general instincts of justice. Distinctively, views of applicable justice resulting in views of the system 's ethical credibility would seem to promote compliance, support, and respect. By contrast, a criminal justice system alleged to be procedurally unfair or basically unjust may incite resistance and agitation, and may lose its capacity to control powerful social and normative influence.

Austin command theory had been criticized as a simple model of law as the sovereign’s coercive orders that failed to reproduce some of the salient features of legal system.

PHL 612 Philosophy of Law [Calendar Description]: What is law? What makes something a legal norm? Should

H. L. A. Hart based much of his theory on the previous legal positivist John Austin’s work. Austin believed that laws obtain their legitimacy from the recognition of a society’s members in the authority of their unruled ruler. This unruled entity that enforces laws with the backing of sanctions, is what Austin terms the ‘sovereign.’ He believed that in order for a sovereign to exist it had to be habitually complied with by those it governs. What separates Austin’s theory from natural law theories is that he did not believe that laws had to be created or followed on the basis of morality. According to Austin’s

Fuller has higher aspirations for law. Rather than look to the presence of certain structures, natural law theorists like Blackstone and Fuller, consider whether the application of a law satisfies moral principles. For Fuller, law must represent human achievement. “If laws, even bad laws, have a claim to our respect, then law must represent some general direction of human effort….” This necessarily incorporates a value judgement despite what Hart believes. And as Fuller articulates, the authority from which law is derived “must be supported by moral attitudes that accord to it the competency it claims.” We want society to think it is important to comply with the law and for legal systems to get it right. In other words, if we want legal rules to be mandatory, then they must be moral. By incorporating morality into the equation, the legal system under Fuller gains respect and deference when the laws are good. As a

     In his book on ?The Behavior of Law? Donald Black attempts to describe and explain the conduct of law as a social phenomenon. His theory of law does not consider the purpose, value, impact of law, neither proposes any kind of solutions, guidance or judgment; it plainly ponders on the behavior of law. The author grounds his theory purely on sociology and excludes the psychology of the individual from his assumptions on the behavior of law (Black 7). The theory of law comes to the same outcome as other theories scrutinizing the legal environment, such as deprivation theory or criminal theory; however, the former concentrates on the patterns of behavior of law, not involving the

In his book, Neil Boyd says that “Law is a vitally important force. It is the skeleton that structures our economic, social, and political lives” (Boyd 5). One can answer questions only after understanding different perspectives of legal philosophy, such as natural law, positivism, legal pragmatism, and feminism. Questions such as: Are the natural law dead as argued by Roger Cotterrell? Does Hatfield provide compelling reasons, if he rejects Cottrell’s argument on the natural law? Equally good, Will it aid our understanding of the different position of legal philosophy by contrasting values of natural laws with other three perspectives of law? Let us discuss it below.

It is easy to conceptually separate law and society. We do it all the time: from academic disciplines, where psychology and political science are only now collaborating to actual policymaking on Capitol Hill, where elected officials create procedure and poly either written by interest groups or as empirical rules to govern the democracy that elected them. This is a tension worth of investigation, as this paper will investigate. Fundamentally, democracy is a set of procedures used to give power to a majority, along with maintaining rights of a minority to compete for said power (from class). Taking this rule-based definition of democracy, we must examine how we explicate the so-called “rules.”

As this paper will cover a great deal of the Form of Law, we shall begin by grasping an understanding of Kant’s Form of Law. According to Kant, the Form of Law is the idea that one whom acts upon a will on the basis of practical law, thus the individual’s will is acting in accordance to the Form of Law. Kant goes on to argue that wills are free, by denying the notion that a reason or an end could have any influence over our desires, in that moral wills are independent from desires. The Form of Law also suggests that our desires

Law is both a context for the application of power and at the same time, an instrument of power. Rule

The legal-formalist belief in the capacity of legal rules to determine the outcomes to legal disputes without having recourse to the judge’s political beliefs or sense of fairness has been severely criticised by, amongst others, legal realists and critical legal studies scholars. This assignment will firstly address what legal formalism entails, following which the criticisms of legal formalism will be discussed and lastly whether legal formalism can impede the transformative ideas of the Constitution. All of the above will be analysed to determine the role of legal formalism today.

Hart introduces a distinction between “external” and “internal aspects of rule”, the latter of which see rules as akin to reasons. By making “the idea of a rule” central to the concept of law, Hart gives “a fresh start” to jurisprudential theory, which was then dominated by the predictive theory of obligation, namely that of Command Theory and radical legal realism. This paper will first make an account of “the internal and external aspects of rules according to Hart”, then analyze how the external aspect (1) neglects the possibility of seeing rules as reasons to conduct and thus (2) fails to account for the maintenance of a legal system, and in the last part examine Hart’s accusation of the

This article discusses the conceptions of legal normativity, both moral and “strictly legal” conceptions. According to Spaak, regarding the normative force of legal justification, legal positivists can still embrace the moral idea and not be in conflict with their generally held belief in the “strictly legal” concept of law. In Torben Spaak’s opinion, there is a reason to desire legal positivism; he explains this through introducing the concept of jurisprudence. When discussing the nature of law, Spaak states, “that while the moral conception is what is likely favored on a smaller scale, the strictly legal conception is more appealing because it is broader,” (478). Spaak is arguing, his belief that “validity-based explanations come nearer to the truth,”(483) rather than belief-based explanations. He concludes that we are to prefer legal positivism over natural law theory. “That is why in this article I have been concerned with the law itself rather than our views about it.”(483)

rule that one ought to go to the cinema on a Saturday night. There can

In his critique of Austin’s work, Hart believes that in making coercion and sanction a central component of the nature of law, Austin imagines a world filled with “bad men”, a term introduced by Oliver Wendell Holmes to describe a person who is more concerned with avoiding the adverse consequences of disobedience of the law (or using Hart’s terminology, a person taking an external point of view). However, Austin overlooks the fact that most people in a society could be considered “puzzled men”, which describes a person who is prepared to comply with the law, as long as they are told what they have to do (or again using Hart’s terminology, a person taking an internal point of view). Therefore, Hart maintains that Austin’s account of the nature of law overlooks the fact that most people take an internal point of view towards the rules. The majority of people do not take into account the sanctions that may befall them if they do not comply; they simply comply because they see the law as a reason to modify their behaviour.