The Pros And Cons Of Austin Command Theory

Gerald N. Rosenberg discusses the three views on the power of courts to cause social change, as well as the Miranda decision, in his popular and provoking book, The Hollow Hope: Can Courts Bring About Social Change? Rosenberg examines the underlying beliefs and theories for each of the views, as well as the problems one can encounter with both the constrained and dynamic views of the courts. It is from these problems that Rosenberg creates the Condition Dependent view of court power. To understand Rosenberg’s argument about the power of courts to cause change, it is important to understand the two other models of court power which Rosenberg synthesizes.

Bentham, J. (1789). Punishment and deterrence. In A. von Hirsch & A. Ashworth (Eds., 1998), Principled sentencing: readings on theory and policy (2nd ed.). 53-57. Oxford: Hart Publishing.

Philosophers such as Ronald Dworkin and H.L.A. Hart have referred to discretion as “the hole in the doughnut” (doughnut theory of discretion) and “where the law runs out” (natural law theory). In perspective,

Laws in general are thought up in order to maintain order in our society. Over time, it has

We discussed the recent mob uprising and the state of unrest in the community. It was the judgment of all present that the life of the defendant, even if the wrong man, could not be saved; that an appeal would so inflame the public that the jail would be attacked and perhaps other prisoners executed by violence. In the opinion of all of us a case was presented where the defendant, now that he had been convicted by a jury, must die by the judgment of the law, or else, if his case were appealed, he would die by the act of the uprising of the people (Pfeifer, “United”).

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.

Stevens make reference to other recent situations such as Dr Haneef’s debacle as a generalisation persuasive technique to evoke fear onto how much¬ liberty was at risk. It can position the reader to consider their own fear of limited liberty and become aware of what would happen if we found ourselves in a similar situation. The core of the article, A sorry state? Was to present evidence to persuade the intended audience of Professor Stevens point of view on the unfair

Every institution in place today has been established for a reason. The legal system is one such institution that has been established as a means of maintaining order and protecting the rights of citizens through laws. However, are some the laws we have set in place necessary, and do their reason serve their given purpose? In these cases, it is considered justifiable to break the law if it indeed does not protect civilians or if it is done for the good of others.

H.L.A. Hart first takes issue with John Austin first point. John Austin believed in a many species of commands. Hart disagrees with Austin’s statement completely. Hart believes that the idea that the law consists only of directives and orders which are followed by possible punishments do not help to explain the current legal systems. Hart finds value in the type of laws called “power conferring rules.” The rules offer less threats and actually establish a framework for which citizen can understand and define their individual rights and obligations they have. Hart also considers other types of laws. Hart views laws that are established to identify the limitation and the powers of the judicial and legislative branches. He argues that it is impossible to view these laws as mere orders backed by threats

Hart’s idea is this: All one/society needs is a legal system based on the four rules.

This paper is on the Classical School theory that emerged in the eighteenth century; two writes of this period were Cesare Beccaria and Jeremy Bentham. Among the major ideas that descend from this theory are the concepts of humans as free-willed, rational beings, utilitarianism (the greatest good for the greatest number), civil rights and due process of law, rules of evidence and testimony, determinate sentencing, and deterrence. The writes during this period examined not only human nature but also social conditions as well. The Classical School, gave us a humanistic conception of how law and criminal justice system should be constructed. Law was to protect the rights of both society and individual, and its chief purpose was to deter criminal behavior, the law emphasized moral responsibility and the duty of citizens to consider full the consequences of behavior before they acted. This thinking required humans possessing free will and a rations nature.

It should be noted however that the classical school of thought has had an enduring influence as many legal systems are built on some of its key precepts. The idea of intent for example, emphasizes the importance of the state of mind of the individual and their capacity for making choices. Notions of proportionality in relation to punishment are

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

Laws serve several purposes in the criminal justice system. The main purpose of criminal law is to protect, serve, and limit human actions and to help guide human conduct. Also, laws provide penalties and punishment against those who are guilty of committing crimes against property or persons. In the modern world, there are three choices in dealing with criminals’ namely criminal punishment, private action and executive control. Although both private action and executive control are advantageous in terms of costs and speed, they present big dangers that discourage their use unless in exceptional situations. The second purpose of criminal law is to punish the offender. Punishing the offender is the most important purpose of criminal law

In applying both Dworkin and Hart’s theories of law, they come to very different conclusions in regards to the case of Riggs v. Palmer. According to Dworkin’s theory of law, judges do not solely focus only on the rules, instead, they focus on seeking right answers. Dworkin has many problems and disagreements with Hart’s theory, one in particular is relating to what Dworkin labels ‘principles and policies’. Dworkin defines a ‘principle’ as a standard that is observed due to it being “a requirement of justice or fairness or some other dimension of morality (Dworkin, p.153-154). Policies, which go alongside principles, are standards in which a goal is set out to be reached by the community (seen as improvements to life) (Dworkin, p.153).