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Law As Rules And Principles Notes

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This is an extract of our Law As Rules And Principles document, which we sell as part of our Jurisprudence Notes collection written by the top tier of Oxford students.

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JURISPRUDENCE - NORMS AND PRINCIPLES

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*HART, THE CONCEPT OF LAW, CHS 5-7

1. The model of law as the sovereign's coercive orders fails to adequately depict the legal system: Hart at 77.

1.1Even criminal statutes, those that most resemble orders backed by threats, are different because they are equally binding on those who enact them.

1.2There are other varieties of law (public/private power-conferring laws)
that cannot be construed reasonably as orders backed by threats.

1.3There are laws that differ in mode of origin.

1.4Account of a habitually obeyed sovereign necessarily exempt from all legal limitation doesn't take account of the continuity of laws or the identification of legislature with the electorate

2. Devices attempting to bring the analysis within the OBT (orders backed by threats) theory also fail: Hart at 78.

2.1Tacit order: only depicts simple scenarios (eg. general who deliberately refrains from interfering with orders of subordinates) and fails to take account of the complex nature of legal system

2.2Power-conferring laws as fragments of rules: departs too radically from ordinary conceptions.

2.3All rules are directed only to officials: no more consistent with our ordinary thinking than claiming that all rules of a sport are directed only at umpires.

2.4Separating legislature in its official capacity and private capacity:
supplements the theory with something it doesn't contain - a rule defining what must be done to legislate (only with this rule can legislature have an official capacity)

3. This failure is attributable to the fact that the theory doesn't include and cannot yield the idea of a rule, without which we cannot understand even the most elementary of laws.

4. Thus, a new idea is needed: a conception of rules as primary and secondary rules.

4.1Primary rules are those that require people to do/abstain from certain actions, whether they wish to or not.

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