This website uses cookies to ensure you have the best experience. Learn more

Nature Of Law Essay

1608 words - 7 pages

|
What is the Nature of Law |
Ian ToughS211177 |
|
|
|

|

WHAT IS THE NATURE OF LAW 1

What is the nature of Law? What is the Law? Does humanity have any regard for laws?Do all societies have the same laws?
The answer to these questions, are thought to have two competing answers.  The classical answer is provided by natural law theory, which is frequently characterized as asserting that there is an essential relationship between law and morality or justice.  The modern answer is provided by legal positivism, which, as developed by John Austin, asserted that law is the command of ...view middle of the document...

  A second view that is called "natural law theory" is a theory about "law" as an institution or practice--that is the view that is implicated in the "What is law"" controversy.
Second, contemporary understandings of "natural law theory" have been strongly influenced by the legal positivists critique.  When the positivists articulated the theory they were criticizing, their articulations of natural law theory were neither charitable nor true to the natural law tradition. 
For the purposes of this broad overview, we might use the term an unjust law is not a true law, as a starting point. 
This formulation differs from a literal translation--an unjust law is not a law.  Formulated in that way, natural law theory seems to be committed to a contradiction: something which is a” law” (but also is unjust) is not a law.  The quotation marks around "law" and the phrase true law make it clear that natural law theory is asserting something else, that something which might be called a "law" is not in fact a law if it is unjust.  Usually, this notion is accompanied by some explication of the characteristics that are required for status as a "true law" or perhaps "valid law."
It is difficult to know where the positivist tradition begins.  Hobbes's theory of law shares some characteristics with the theories offered by Jeremy Bentham and John Austin--both of whom are clearly in the positivist tradition.  Jeremy Bentham developed a very sophisticated version of legal positivism, but for a variety of reasons, the more influential and widely known view was that of Bentham's student, John Austin.
Austin's theory was that a given rule was a law if and only if the rule was the command of the sovereign to subjects of that sovereign backed by the threat of punishment.  A sovereign is some person or institution who is habitually obeyed in a well-defined territory, but who or which does not habitually obey any other person or institution.
Austin's positivist theory does an excellent job of explaining the rules of criminal law, which forbid certain actions and impose punishments on those who engage in the forbidden actions.  But this theory has a difficult time accounting for other aspects of law, and especially for those rules that create legal powers, such as the power to create contracts, trusts, wills, and so forth. .
These deficiencies in Austin's theory prompted H.L.A. Hart to develop a more sophisticated version of legal positivism.  One feature of that theory is the distinction between primary rules (which would include criminal prohibitions) and secondary rules (which allow for the creation, alteration, and termination of primary rules).  Hart replaced the notion of a sovereign with that of a rule of recognition--a social rule that specifies what counts as a law and what does not.
The contemporary approach to these issues is the product of almost sixty years of thinking within the tradition that is sometimes called "analytic jurisprudence."  Beginning...

Other Papers Like Nature Of Law

Roles of Comparative Law to Legal Interpretation and Application

5252 words - 22 pages COMPARATIVE LAW 2013 GROUP 6 – CLC35 1/1/2013 Role of Comparative Law to legal interpretation and application Role of Comparative Law to legal interpretation and application Table of Contents I. Definition: legal interpretation and application 2 I.1 Legal Interpretation 2 I.2 Legal Application 3 II. Role of Comparative Law to legal interpretation and application 4 II.1 Role of Comparative Law to legal

Industrial Law Essay

320 words - 2 pages LEGAL ASPECTS OF BUSINESS Credit Units: 03 Course Objectives To give insight to various Legal Aspects of Business so that the students are able to interpret the provisions of some of the important laws and apply the same in commercial and industrial enterprises. Course Contents Module I: Indian Contract Act, 1872 Nature and kinds of Contracts, Concepts related to offer, Acceptance and Consideration, Principles Governing Capacity of

Law Vs. Justice

1819 words - 8 pages law is the subset of Legal Positivism that is just. Webster's dictionary describes the word just as, among other things, fair and deserved. Mallor states that "Roman statesman Marcus Cicero described natural law as 'the highest reason, implanted in nature, which commands what ought to be done and forbids the opposite.' Because this higher law determines what is ultimately good and ultimately bad, it is a criterion for evaluating positive law

The Law of Life (by Jack London)

640 words - 3 pages Question: What do you think is the story’s theme? Does the story give the reader more insights into human nature? Is there anything learned about the law of life? Does the lesson, if any, drawn out from the story still have any value to us nowadays, Vietnamese students living in the third millenium? Answer: The title “ The law of life” mentioned in this story is the law of nature: All creatures are given birth, developed and gone to death

Should We Be Allowed To Break The Law

671 words - 3 pages are situations in which breaking the law would be justifiable, as proposed by King, as well as many others. Some, such as John Rawls, have set forth guidelines to determine whether or not breaking a law would be justified. Rawls believed that there must be a clear injustice, the act of disobedience must be a public act which is both non-violent and non-threatening in nature and the perpetrator(s) must be willing to accept full responsibility

Business Law

854 words - 4 pages Chapter 1 Nature of Law | Definition of Law “a rule of civil conduct prescribed by the supreme power in a state, commanding what is right, and prohibiting what is wrong’ (Blackstone)Functions of Law to maintain stability in the social, political, and economic system through dispute resolution, protection of property, and the preservation of the state, while simultaneously permitting ordered change. Legal Sanctions are means by which the law

Of the Beginning of Political Societies

911 words - 4 pages . Nature lacks three very important things, all of which a just civil society provides: "an established, settled, known law"; "a known and indifferent judge"; and the "power to back and support the sentence" In order to gain the three things above, people must relinquish their natural rights. These include the right to do as they wish within the bounds of the law of nature; the power to punish the crimes committed against natural law. The first right

The Long-Established And Noble Rule Of Law, One Of The Greatest Products Of The Character And Tradition Of British History, Has Suffered A Deadly Blow.” – Robert G. Menzies

2810 words - 12 pages all, including government officials. Laws must be published. Laws must be prospective in nature so that the effect of the law may only take place after the law has been passed. For example, the court cannot convict a person of a crime committed before a criminal statute prohibiting the conduct was passed. Laws should be written with reasonable clarity to avoid unfair enforcement. Law must avoid contradictions. Law must not

Nature in Wordsworth

1708 words - 7 pages shape of the night-shrouded mountain played an important part in the maturation of his mind. In The Prelude, he remarks a large number of these natural scenes, not for themselves but for what his mind could learn through. Nature was both law and inspiration; and in earth and heaven, in glade and bower, Wordsworth was aware of a spirit which inspired and restrained. In a diversity of provoking ways, which he did not comprehend, Nature

Gestalt Psychology Reflection

584 words - 3 pages ambitious world views. Max Wertheimer wrote, "There are holes, the behavior of which is not determined by that of their individual elements, but where the part-processes are themselves determined by the intrinsic nature of the whole. It is the hope of Gestalt theory to determine the nature of such wholes" (Cherry, 2015) Wertheimer saw Gestaltism as a rapid sequence of perceptual events. An example of this would be rows of flashing lights creating

To Be or Not to Be

799 words - 4 pages . Hobbes, seeing the natural world as a nasty, brutish place of perpetual war, sees the legitim acy of a sovereign as being unquestioned and that of a paternal figure that instills order in a world without law or reason. Locke, in opposition, views the state of nature as a peaceful place where man can enjoy equa lity and liberty, and he believes that a sovereign’s legitimacy comes from the consent of the people whom he serves and

Related Essays

Hjfddhghg Essay

650 words - 3 pages been for a neat and satisfactory development in common law countries. The presence of Administrative Law and its inevitable nature is clear by the recognition of some of the scholar‟s contemporary to Dicey. Maitland was one of those scholars who have recognized the presence of Administrative Law in England. It is also evident that the presence of Administrative Law was substantial but was ignored by Dicey in his early era. The famous case of Board

‘The Law Of Contract Confines Itself To The Enforcement Of Voluntarily Created Civil Obligations’ Illustrate And Explain

2709 words - 11 pages This essay attempts to focus on the scope of the law of contract in relation to its enforcement capability of voluntarily created civil obligation. In an attempt to do so, the basic elements of the law of contract were discussed. Then attention was directed to civil obligation. Various interpretation of the civil law or obligation revealed its voluntary nature. Then in an attempt to create a link between the law of contract and civil obligation

Roles And Functions Of Law Essay

927 words - 4 pages . The nature of the law needs to be explained along with the disciplines related to law to interpret and apply the law and how the law interacts with the social norms (Raz, 1979).  Firefighting in itself has many standards, regulations and laws that affect the way firefighters perform their duties, to what they wear while performing their job, to the tools they use and interaction with patients. The functions and role of law in business, society

What Is Social Contract Theory? Essay

2500 words - 10 pages Page 1 of 7 What is Social Contract Theory? The concept of social contract theory is that in the beginning man lived in the state of nature. They had no government and there was no law to regulate them. There were hardships and oppression on the sections of the society. To overcome from these hardships they entered into two agreements which are:1. “Pactum Unionis”; and 2. “Pactum Subjectionis”. By the first pact of unionis, people