This book enables students to first understand all of the key areas of the English legal system, and then to engage with the subject fully for themselves. The law is not just presented but critiqued, with a range of learning features which encourage students to actively engage with contentious issues and difficult questions. Everyday examples help students to apply their knowledge of the law in a practical way, while questions for reflection help students to analyse, evaluate, and think critically. Aided by a clear structure, arranged in five parts, students will be able to fully grasp the processes involving in making and reforming the law.

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In the more precise terms of theorising about law, itis the view that a descriptive, or Pi east morally neutral, theory of law is both possible and valuable. The position can be summarised in the words of John Austin: find other char While the abowe text eft the generally aceeped view, one wee stoas af legal ponseam. One prominent theorist orl argued that egal Jostisam should be undemiood narrowly a proposition about when a given nor Peel wali.

Murphy, "Was Hobbes Legal Posts? Whetber it ber be nots one enquiry; whether it be or be not conformable to an assemed standard, is differen enquiry A Taw, which actually exists, ia law, tbough we happen to dislike itor though it vary from the text, by which we regulat: our approbation and disapprobation. Rumble e. Cambridge University Pres, Cambridge, first published in , p. Marea, Claredon yess, Oxford, pp. Sucty University of Kanens Fre, serene, Kansas, , pp. The one associated with the work oF L.

Bonnie L. Paulon and Stacy alee. Hart began forming his legal theory, an influcutial view within the legal theory literature was that law was best understood as the command of a sovereign to its sub: jects. Secondly, the concept of a sovereign creates difficulty in explaining the continuity of law: for when someone new takes over, that person has no history of being habitually obeyed.

Thirdly, there is much that is significant within legal systems that is lost i one looks only to the commands backed by "The foundational work adweating x hermeneutic approach to socal thery is prob ably Max Weber, aoe Max Webcr, Ezamomy end Seca G- Rosh andl C. Witch Bedminster Press New York, , vol 1, pp. Hart, ed.

Hart, iss on Beta Clcendon Pres, Oxford, , pp. With a rule, however, the statement can take on additional roles: as an explanation, a justification, and a basis for criticising deviation. M7 Han, The Cane Law, pe , Hart captured the core of this distinction in his discussion of the difference between feeling obliged and having an obligation. This includes not only the authori sation of legislative bodies, but also the empawerment of individuals to Create new rights and duties through contracts, wills, trusts, and the like.

Netra awe wl be discussed in chs. Hav, The Compt of La pp ah at pp , thi. To explain: sometimes the standards applied are written down in an official text eg. Atother times, the standards the officials are following can only be determined, after the fact, by reference to the decisions they have made. A number of ssues have been raised by later commentators regarding therule of recognition, eg.

However, one sheuld focus primarily on what the concept of a rule of recognition indicates, ids for. The rule of recognition expresses, or symbolises, ive. However, fr present parpones ise tremater ol deta agua the general pin, that her ina variety of ype ofa tempt to unalyse al ofthe law in terms ofa single type of rule.

It can best be understood within the context of and it has repercussions for certain general problems of constructing social theories—a subject touched upon in earlier chapters, and in an earlier section ofthis chapter.

Because of these facts, understanding any social process, including law, will be different in kind from understanding processes which are purely physical, chemical or biological.

The idea is that one cannot understand a social system unless fone understands how the people who created the system or who partici- pate in the system perceive it. Because Mart Evy in aipradenc and Pop, p Afterall, most social practices havea large number of participants, all of whom do not share the same view of, or attitude tawards, the practice.

One prominent legal theorist, John Finns who is discussed at greater length in Ch. He argued that a legal theory should be constructed around the perspective of someone who accepted the legal system, but the theory itself or, 10 put the matter differently, the theorist herself need not, and should hot, endorse the system as one which is generally just or which creates binding moral obligations.

Rights pp. In a similar way, [IJegal scholars—and this includes ordinary practising lawyers—ean use normative language when describing the law and make legal stat "ments without thereby endorsing the laws moral authority. The dry of Lap. Marte ed, Clarendon Press, Oxford , pp. Deerinasy Oxford Univerty Pres, Oxford, , pp. Upon reflection, itis not a surprising conclusion that language is generally clear but there are occasions when itis not.

A directive that may seem straightforward in one set of circumstances may seem confused oF absurd when applied after a significant change of circumstances.

Home ed, Lite Brown, Boston, , p. Russell, "Vaguenest, in Called Paper of Beran. Sted e. To the argument that judicial legislation shows the conceptual connection petween law and morality, Hart responded that this way of seeing the matter tended to cloud, not clarify, our under- standing of law-— judges interstitial legislation may be based in part on moral standards, but it does not follow that those standards are then.

Even if one were t0 take it as a concession to the natural Law theorist, itis a trivial one. Exclusive legal positivism interprets or elaborates this assertion to mean that moral criteria can be neither sufficient conditions nor neces sary conditions for the legal status ofa norm. The strongest argument for inclusive legal positivism seems 0 be i fit with the way both legal officials and legal texts talk about the law.


Jurisprudence : theory and context



Brian Bix Jurisprudence Theory and Context


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