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Summary of Thoeries Juris
Summary of Thoeries Juris
Summary of Thoeries Juris
2.Positive Law: Austin categorizes positive law as laws strictly set by political superiors,
including sovereigns and their delegates. These laws are enforceable and are backed by
sanctions for disobedience.
3.Divine Law: Austin acknowledges the importance of laws set by God as revealed in
scriptures. He considers these laws as primary sources of moral rules, alongside human-
made laws.
4.Proper Laws vs. Improper Laws: Proper laws, according to Austin, derive from authority,
either divine or political. Improper laws, on the other hand, are based on opinion rather
than authority. Proper laws are imperative and involve duties and sanctions.
6.Judicial Role: According to Austin, judges and officials are mere agents of the sovereign,
tasked with adjudicating disputes and applying the law. Judicial lawmaking is seen as
inevitable and beneficial for society.
7.Command Theory: Central to Austin's theory is the concept of a command, which is not a
request but an imperative that creates a duty backed by a sanction. A command involves a
wish or desire by a rational being, an indication of the wish, and an evil consequence for
non-compliance.
8.Relationship Between Law and Morality: Austin acknowledges that there may be instances
where positive law conflicts with moral principles. In such cases, the law remains legally
valid but may lack practical effectiveness if it goes against societal moral sensibilities.
9. Disagreement with Bentham: Austin's views on divine law and the relationship between
law and morality differ from Bentham's wholly materialistic moral theory. While Bentham
rejected scriptures as a source of law, Austin recognized their significance alongside human-
made laws.
Austin's command theory provides a framework for understanding the nature and functions
of law within a legal system, emphasizing the role of sovereign authority and the imperative
nature of legal commands.
In paragraph format;
John Austin's command theory of law is deeply rooted in the notion that law fundamentally
emanates from sovereign command. Drawing inspiration from philosophers like Hobbes and
Bentham, Austin distinguishes between various types of law and elucidates the defining
characteristics of positive law. For Austin, law is succinctly defined as a directive issued by a
superior being to an inferior being, encompassing both divine laws set by God for humans
and human-made laws governing societal conduct. He categorizes positive law as
regulations strictly instituted by political superiors, such as sovereigns and their delegates,
emphasizing their enforceability and the accompanying sanctions for disobedience. In
acknowledging the significance of divine law as revealed in scriptures, Austin places it on par
with human-made laws, considering them primary sources of moral guidance. He delineates
between proper laws, derived from authoritative sources, and improper laws, rooted in
opinion rather than authority, underscoring the imperative nature of proper laws, which
entail duties and sanctions. Central to Austin's theory is the concept of sovereignty, which
he defines as a determinate human superior not subject to any other human authority,
highlighting its indivisibility and legal immunity from positive law restrictions. Austin posits
judges and officials as mere agents of the sovereign, tasked with adjudicating disputes and
applying the law, thereby affirming the inevitability and societal benefits of judicial
lawmaking. The crux of Austin's theory lies in the notion of a command, which he asserts is
not a request but an imperative that creates a duty accompanied by a sanction, reflecting
the essence of legal obligation. While Austin acknowledges the potential discord between
positive law and moral principles, he maintains the legal validity of such laws, even in cases
where they conflict with societal moral sensibilities. His departure from Bentham's wholly
materialistic moral theory lies in his recognition of the significance of divine law alongside
human-made laws, highlighting their complementary roles in shaping legal systems. In
essence, Austin's command theory furnishes a comprehensive framework for
comprehending the nature and functions of law within a legal system, emphasizing the
centrality of sovereign authority and the imperativeness of legal commands.
2)LEGAL REALISM
Realism in legal theory seeks to ground legal analysis in empirical realities rather than
abstract ideals, a process often termed reduction. This involves translating complex and
problematic ideas into concepts grounded in scientific principles, a project also known as
reduction or realism. Legal realists, such as those within the American and Scandinavian
traditions, aim to expel from legal discourse any propositions not verifiable by empirical
evidence, condemning as idealistic any legal categories not grounded in empirical facts. For
legal realists, concepts like obligation are nonsensical unless reducible to predictability of
sanctions, echoing similarities with Bentham and Austin.
Legal rules, according to realists like Green, are understood to provide reasons for action,
suggesting that adherence to these rules offers overriding reasons for behavior. However,
this reasoning is not seen as objectively compelling, akin to philosophical anarchism's
skepticism towards legal obligations. American Legal Realism, spearheaded by figures like
Justice Oliver Wendell Holmes Jr., emphasizes law as a prediction of likely sanctions,
advocating for a pragmatic, fact-driven approach to legal analysis. Holmes underscores the
importance of studying law's operations empirically, distinguishing law from morality and
prioritizing practical over purely logical reasoning.
Karl Llewellyn further expands on legal realism, asserting that legal rules are dynamic and
context-dependent, serving to provide legal certainty while allowing judicial discretion to
serve justice. Realists critique formalism in legal reasoning, advocating for a flexible, policy-
driven approach to law that prioritizes social impact over abstract principles.
In summary, realism in legal theory aims to anchor legal analysis in empirical realities,
rejecting abstract idealism in favor of pragmatic, fact-driven approaches. Legal rules are
seen as providing reasons for action, but not necessarily objectively compelling ones, and
legal analysis prioritizes empirical evidence and social impact over abstract principles.
**Shared Principles:**
1. **Empirical Focus:** Both American and Scandinavian legal realism emphasize grounding
legal analysis in empirical realities rather than abstract ideals. They seek to understand law's
operation through observation and analysis of legal phenomena.
2. **Critique of Idealism:** Both traditions critique idealistic legal theories that are not
grounded in empirical evidence, advocating for a more pragmatic and fact-driven approach
to legal analysis.
3. **Role of Judges:** Both traditions acknowledge the significant role of judges in shaping
the law and recognize the importance of judicial discretion in decision-making.
**Differences:**
1. **Geographical Origin:** American Legal Realism originated in the United States,
primarily influenced by figures like Oliver Wendell Holmes Jr., whereas Scandinavian Legal
Realism emerged in Scandinavian countries such as Sweden and Denmark.
2. **Influences:** American Legal Realism was influenced by figures like Holmes, who
emphasized a pragmatic approach to law focused on predicting likely outcomes.
Scandinavian Legal Realism, on the other hand, was influenced by Scandinavian scholars
such as Axel Hagerström, who emphasized a sociological understanding of law and its
relationship with society.
In summary, while American Legal Realism and Scandinavian Legal Realism share a
commitment to empiricism and a critique of idealism in legal theory, they differ in their
geographical origin, influences, emphasis on sociological factors, and philosophical
underpinnings.
Kelsen's concept of norms distinguished between legal and moral norms, emphasizing the
objectivity and authority of legal norms. The Grundnorm was seen as an interpretation of
facts rather than derived from them, with its effectiveness dependent on the norms derived
from it. Kelsen also discussed revolutions, wherein the Grundnorm might be replaced, but
previous laws could remain valid due to tacit consent.
Comparison with Hart's theory revealed differences in their approaches, with Kelsen
emphasizing a purified theory of law abstracted from social practices, while Hart focused on
analyzing actual social practices and linguistic usage. Hart's theory was more sociologically
grounded, while Kelsen's was more abstract and logical.
4)HART THEORY
Hart's sophisticated legal positivism posits that the existence of a legal system depends not
only on external pressures but also on an internal perspective, where individuals recognize
legal rules as setting common standards of behavior. This internal aspect distinguishes law
from mere habits. Hart's analysis in "The Concept of Law" argues against oversimplifying the
relationship between law, coercion, and morality, highlighting that not all laws are coercive
orders or moral commands. Laws can impose obligations, confer powers, or specify
procedures, and their validity is evaluated based on a system of primary and secondary
rules.
Primary rules regulate behavior and impose obligations, while secondary rules stipulate how
primary rules are formed, recognized, modified, or adjudicated. These secondary rules
include rules of recognition, change, and adjudication, which are essential for the
functioning of a legal system. Hart distinguishes between the external and internal points of
view regarding legal rules, emphasizing the importance of both in understanding legal
behavior.
Hart's critique of John Austin's command theory includes the distinction between being
obligated to do something by a threat and having a responsibility to do it, proposing rules as
a source of duty instead of mere threats of punishment. He introduces the idea of the
Gunman theory to illustrate this distinction.
In the Hart-Fuller debate, Hart argues for the separation of law and morality, asserting that
a legal system can function effectively without being just or moral. Fuller, representing
natural law theory, contends that law and morality cannot be neatly distinguished and that
moral considerations should influence legal judgments.
Hart's analysis delves into the functions and structures of legal systems, addressing
questions of obedience, morality, and the relationship between law and society. He explores
the complexities of legal positivism, highlighting its implications for understanding the
nature and purpose of law in human societies.
5)HART-DWORKIN DEBATE
The Hart-Dworkin debate revolves around the nature of law, particularly whether it's
primarily a system of rules or if it includes principles and other non-rule elements. Hart
argues that law is essentially a system of rules, identified and prioritized by a "rule of
recognition." When rules don't cover a situation, judges have discretion to decide the case.
Dworkin, on the other hand, contends that law contains not only rules but also principles. In
"hard cases" where rules don't provide an answer, judges must be guided by principles,
which are integral to the legal system. Dworkin argues that there is always one right answer,
determined by what best fits with the existing legal framework. He criticizes Hart's idea of
discretion, suggesting that judges are constrained by principles and existing legal rights.
Dworkin emphasizes the importance of rights over rules, asserting that rights exist prior to
their expression as rules and are essential for a just legal system. Overall, the debate
revolves around the balance between rules and principles in legal decision-making and the
role of judges in interpreting and applying the law.
6)DWORKIN DEBATE
Ronald Dworkin challenges H.L.A. Hart's legal positivism, arguing that law is not merely a
system of rules but also encompasses principles and moral considerations. He rejects Hart's
idea that judges act as legislators when the rules are insufficient, instead asserting that the
law always provides an answer, found by interpreting existing rules and principles. Dworkin
emphasizes the importance of integrity in law, advocating for consistent decisions based on
principles rather than ad hoc discretion.
Dworkin distinguishes between rules and principles, asserting that judges should use
principles, which require consistent decisions, in hard cases. He envisions a model judge,
Hercules, who meticulously analyzes past cases and principles to arrive at the correct legal
answer. He emphasizes that judges enforce pre-existing rights and must adhere to
institutionalism and fairness.
Dworkin rejects the idea of a universal definition of law, arguing that each community has
its understanding. He discusses the use of force in law, advocating for its limited application
to maintain predictability and equality. He insists on interpreting laws to preserve their
integrity and consistency.
Using the Riggs v Palmer case, Dworkin challenges legal positivism by highlighting
contradictions in Hart's interpretation of the legal process. He argues that debates about
what constitutes law should be rare under legal positivism, suggesting that the case's
ambiguity contradicts Hart's theory.
Overall, Dworkin's critique of legal positivism emphasizes the role of principles, morality,
and integrity in law, challenging the idea that law is purely a system of rules.
7)JUSTICE
Utilitarianism, closely associated with Jeremy Bentham's philosophical framework, evaluates
actions or rules based on the amount of goodness or welfare they generate. The theory
prioritizes maximizing overall happiness or welfare and considers consequences as the sole
criterion for judging the morality of an action. Utilitarianism emphasizes impartiality and
agent-neutrality, valuing everyone's happiness equally and focusing solely on the
consequences of actions.
John Rawls, in his seminal work "A Theory of Justice," presents a social contract theory
aiming to determine the principles of justice behind a veil of ignorance. Rawls criticizes
utilitarianism on two main grounds. Firstly, he argues that utilitarianism overlooks the
distinctiveness of persons, leading to the sacrifice of minority interests for the majority's
benefit. Secondly, Rawls contends that utilitarianism prioritizes the aggregation of happiness
over individual rights, potentially justifying morally objectionable actions if they maximize
overall welfare.
Rawls proposes the principles of justice as fairness, derived from a hypothetical original
position where individuals are behind a veil of ignorance, unaware of their personal
characteristics. In this position, individuals choose two principles of justice: the Equality
Principle (EP) and the Difference Principle (DP). The EP ensures basic civil and political
liberties for all, while the DP allows social and economic inequalities only if they benefit the
least advantaged members of society. Rawls prioritizes the EP over the DP, ensuring that
fundamental liberties are upheld before addressing economic inequalities.
Critics of Rawls, including communitarians like Michael Sandel, argue that his theory
homogenizes society and neglects the diverse values and goals shaped by communities.
Additionally, libertarians like Robert Nozick challenge Rawls's redistributive approach,
advocating for minimal state intervention in economic distribution. Nozick's "Anarchy, State,
and Utopia" proposes a night-watchman state, emphasizing individual property rights and
minimal government interference.
Overall, Rawls's theory of justice seeks to reconcile individual rights with societal interests,
prioritizing fairness and equal opportunities while addressing the criticisms and competing
perspectives presented by utilitarianism and libertarianism.
8)MORAL JUSTICE
The debate surrounding the moral limits of the law revolves around questions regarding the
extent to which the law should regulate conduct and intervene in individuals' lives based on
moral considerations. Lord Devlin argued that there cannot be theoretical limits to the
state's power to legislate against immorality and that the law should reinforce societal
moral norms to maintain social cohesion. On the other hand, John Stuart Mill advocated for
a principle of harm, asserting that the only legitimate reason for the state to interfere with
individual liberty is to prevent harm to others.
Moral judgments can be based on various frameworks, including theism (divine command),
naturalism (facts of human psychology), rationalism (necessary truths of reason),
intuitionism (perception of non-natural properties), and emotivism (expressing feelings of
approval and disapproval).
Mill's concept of liberty, as outlined in his essay "On Liberty," emphasizes that society
should only restrain individuals if their actions would harm others. He distinguishes between
legal and moral constraints, stating that legal constraints should be applied more strictly and
only to actions that would cause harm to others.
The Hart-Devlin debate, sparked by the Wolfenden Committee's investigation into legalizing
homosexuality and prostitution, revolves around conflicting views on the role of law in
regulating morality. Devlin argued for laws that reinforce societal moral norms to preserve
social order, while Hart cautioned against the dangers of populism and emphasized
individual liberties. Dworkin suggested focusing on fundamental liberties rather than
engaging in the Hart-Devlin debate, advocating for the protection of basic liberties even if
they may conflict with societal norms.
Overall, the debate highlights the tension between individual liberties and societal morality,
with different scholars advocating for varying degrees of state intervention based on moral
considerations.
According to CLS, legal reasoning is not solely based on logic and precedent but is heavily
influenced by subjective factors such as judges' beliefs, social status, and personal biases.
Instead of providing objective justice, the law often prioritizes the protection of powerful
economic interests. CLS contends that legal outcomes are indeterminate and contingent
upon various non-legal factors, challenging the notion of a definitive "right answer" in legal
disputes.
One of the core tenets of CLS is the recognition of fundamental contradictions within the
legal system, such as the tension between form and substance or public and private
interests. These contradictions highlight the complexity and ambiguity inherent in legal
reasoning, making it difficult to achieve consistent and coherent legal outcomes.
CLS proposes a critical examination of legal institutions and practices, aiming to uncover
hidden power dynamics and challenge prevailing legal norms. By exposing the underlying
injustices perpetuated by the law, CLS seeks to promote social change and equality.
Despite its critical stance towards the legal system, CLS has faced criticism from some
quarters. Critics argue that CLS undermines respect for the law and fails to provide
constructive solutions for addressing social inequalities. Additionally, CLS has been accused
of neglecting the concrete role of rights in mobilizing oppressed groups and promoting
social change.
In summary, the Critical Legal Studies movement offers a provocative critique of traditional
legal theory and practice, challenging the idea of law as a neutral and objective institution.
By highlighting the power dynamics inherent in legal systems, CLS aims to promote social
justice and equality through a critical examination of legal norms and institutions.
One prominent approach within feminist jurisprudence is the liberal equality model, which
operates within the liberal legal paradigm while critiquing its application in practice. Liberal
feminists seek genuine equality for women within the existing legal framework, either
through a more thorough application of liberal values or through revising legal categories to
account for gender differences. For example, Susan Okin has critiqued traditional liberal
approaches to justice from a feminist perspective.
In contrast, the difference model emphasizes the significance of gender differences and
argues that the law should account for these differences rather than obscuring them. This
model opposes the sameness account, which emphasizes women's similarity to men.
Additionally, the dominance model views the legal system as perpetuating male dominance
and aligns with certain strands of critical legal theory.
Patricia Cain outlines four main types of feminism: liberal feminism, radical feminism,
cultural feminism, and postmodern feminism. Liberal feminism advocates for equal rights
within the existing legal framework, while radical feminism seeks to uproot patriarchal
power structures. Cultural feminism values gender differences and seeks to elevate
traditionally feminine qualities. Postmodern feminism challenges essentialist notions of
gender and emphasizes diversity within gender identities.
Radical feminism aims to dismantle patriarchal power structures and views patriarchy as the
root cause of gender inequality. Liberal feminism emphasizes political and legal reform to
achieve gender equality within existing systems. While these branches of feminism have
distinct approaches, they share common goals such as reproductive rights and combating
domestic violence. However, intersectional feminism criticizes both radical and liberal
feminism for their focus on western contexts and their failure to address the unique
experiences of marginalized women.
MAIN PART
The matches and criticisms are determined based on the compatibility of the theories and
the critiques offered by each theory. Here's a breakdown of the matches and criticisms for
each theory:
1. **Command Theory**:
- Matches with: Kelsen’s Theory because both emphasize the importance of legal norms
being backed by coercive authority.
- Criticized by: Legal Realism for oversimplifying the nature of law and ignoring the role
of judges in legal interpretation.
2. **Legal Realism**:
- Matches with: Critical Legal Studies as both challenge traditional legal theories and
emphasize the importance of understanding law within its social context.
- Criticized by: Command Theory for rejecting the idea of law as a system of rules and
emphasizing the role of judges' discretion in legal decision-making.
3. **Kelsen’s Theory**:
- Matches with: Command Theory because both theories focus on the hierarchical
structure of legal norms and the importance of a basic norm (Grundnorm) for legal
validity.
- Criticized by: HLA Hart for its purely hierarchical view of legal norms and its failure to
adequately address the role of judicial discretion.
4. **HLA Hart**:
- Matches with: Kelsen’s Theory as both are positivist theories that emphasize the
importance of a rule of recognition for legal validity.
- Criticized by: Ronald Dworkin for its separation of law and morality and its failure to
account for the role of principles in legal reasoning.
5. **Ronald Dworkin**:
- Matches with: HLA Hart because both engage in the debate over the nature of law and
the role of principles.
- Criticized by: Justice for its emphasis on the role of principles and its rejection of the
idea that law is separate from morality.
6. **Justice**:
- Matches with: Ronald Dworkin as both focus on the importance of principles in legal
reasoning and decision-making.
- Criticized by: Moral Limits of Law for its reliance on moral principles and its potential to
undermine the legitimacy of legal institutions.