Radbruch Stalegary Lawlessness And Supra-Statutory Law

Durkheim even argued that the penal law expresses a society’s “collective conscience” (Luckenbill, 1992). Therefore, it is seen as just and fair to all members. According to Michalowski, the law serves all people equally (Schmalleger, 2012). It is not biased and works with the people to protect them from what they feel endangered of.

Legal positivism is generally based on the principle that Law and morality is distinct and that the validity of a rule depends more on its sources, while Natural law would be more inclined to favour features of reasonableness and the link between morality and law. There are two predominant groups of legal theorists being, Natural law theorists and Positive law theorists, John Austin and HLA Hart

At one level, it deals with the inadequacies of the law in addressing to the question of justice and at the same time highlights the importance of the law in a society as even in presence of inadequacies, law is needed as it is better than a state of lawlessness.

To be sure, modern laws are made to express the general will, a will that aims at the common good. This means that laws in most cases intend to protect every social member’s rights under the principle of justice and fairness. For telling examples one need to look no further than American judicial system. The access to the two courts systems, one federal court and one state court, provides citizens with the greatest potential to have their legal problems

concentrates that law is purely used to promote good by the state. Furthermore, law should

Criminal law is a construct of the government, enforced through tangible measures. In a democratic society, the government is elected by the citizens, and as such, laws are generally conceived with the aim to reflect whatever ethical or moral standards are presently acceptable. However, in order to be truly effective, some legislation must circumvent current sociological viewpoints in order to create laws that are genuinely in the best interests of society. This results in a delicate balancing act, as lawmakers attempt to weigh the views of the majority against the need for laws to be both reasoned and objective.

“Positive” law defines legal liability (or culpability), but many theorists subscribe to concepts of “natural” law. What is “Positive” law? “Natural” law? How are they different?

different from natural law because ‘ it calls for a certain measure of regularity of observance for without this feature, it would hardly be entitled to rank as law at all. A natural law on the other hand may stll be held to be valid even if it is never or scarcely even observed.’7 Legal positivism will only work in a community where it is widely accepted. Hart suggested that the legal system is a ‘closed’ logical system where decisions may be deduced by logic. For

Natural law theorists believe that all law must be morally justified if it can be legitimised as law at all. Legal positivism means the simple contention that it is in no sense a necessary truth that laws reproduce or satisfy certain demands of morality, though in fact they have otherwise done so. (Hart, DATE)

Initially, laws are difficult to design because lawmakers can’t think of every possibility, every scenario, and every obstacle that may present itself in the democracy. Despite these difficulties, laws keep society together and provide unity for the citizens. Advantages for creating laws, include, but are not limited to, providing direction for the collection of taxes, declaring clear expectations for compliance and punishment of citizens and elimination of chaos.

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 of Law”, said Dicey in 1885, means “the absolute supremacy or predominance of regular law as opposed to the influence of arbitrary power and excludes the existence of arbitrariness, of prerogative ,or even wide discretionary authority on the part of government.” (THE LAW OF CONSTITUTION 198 (8th ed.)

The rule of law is a difficult concept to grasp and proves elusive to substantive definition. However, the following work considers the attempts of various social and legal theorists to define the concept and pertinent authorities are considered. Attitudes and emphasis as to the exact shape, form and content of the rule of law differ quite widely depending on the socio-political perspective and views of respective commentators (Slapper and Kelly, 2009, p16), although there are common themes that are almost universally adopted. The conclusions to this work endeavour to consolidate thinking on the rule of law in order to address the question posed in the title, which is at first sight a deceptively simple one.

Frederick Schauer’s paper, Was Austin Right After All? On the Role of Sanctions in a Theory of Law, has two central claims. First, the fact that law is primarily coercive (with the use of sanctions to ensure compliance) has been vastly overlooked in the wake of H.L.A Hart’s critique of John Austin’s work on legal positivism. Second, those who aim to study the philosophical nature of law would be better to examine what makes law truly important and distinctive rather than the necessary and mandatory features of law. In this paper, I will begin by describing Austin’s account of the nature of law. Then, I will explore Hart’s criticisms of Austin’s account that Schauer objects to before delving into Schauer’s argument. To conclude, I will

Legal validity is how valid or forceful or authoritative a law is within a system (“Validity”). There are many different ways to interpret what it means when a law within a system changes. One way to view it is in a positivist perspective. That perspective claims that when a judge changes a law, he is simply stating it based on the words in the law and his interpretation of words,