Trying to define the law isn’t as simple scoopkeeda as you might think. It’s actually a difficult concept to understand and is one that bogs down many people’s understanding of the world. Here are a few things to think about.
Various lawyers have argued in favor of the separability theory as the foundation of modern legal theory, while others dismiss it as a mere relic of the past. This largely depends on one’s vantage point. Nevertheless, a cursory review of the literature reveals that the aforementioned theory has a number of flaws. In short, it is hard to prove that the separability theory is more than a philosophical fantasy. The most compelling point of contention is the separability of the legal and moral order. Hence, it is not surprising that this theory remains under the microscope to this day. Its akin to saying that the human mind has no monopoly on the mind space. Likewise, the aforementioned theory posits that the aforementioned brain has no monopoly on the law. This leads to the inevitable conjecture that the mind is not a single entity but instead a collection of loosely interconnected, albeit overlapping, parts. The aforementioned hiccups are the main culprits, and they are likely to be the reasons for the aforementioned skepticism biooverview.
Identifying law via “pedigree” or social norms was not an option in a society without a sovereign over its citizens. In modern democracies, governments are elected to serve the people. In tyrannical governments, like Nazi Germany, the state murdered its citizens with a flourish. In a nutshell, pedigree proves that there is more to law than meets the eye.
There are three main claims in contemporary legal positivism. The first is that the ol’ fashioned rule of thumb that “the law is law”. The next claims that the aforementioned rule of thumb is unfounded. The third is that the most effective legal system is the one that uses the most effective law. The pedigree of law is a function of the social rules that govern how the social order is run. Among other things, it is an efficient means of social control.
The Pedigree Thesis was aptly named. This ape of a concept originated from the Command Theory of Austin. It entails that the most notable feature of a legal system is its presence of a sovereign.
Hart’s theory of law
Unlike many legal theories, Hart’s theory of law does not deal with the issues of judicial discretion. Rather, it focuses on the identification of legal rules.
The theory proposes a two-step approach to legal interpretation: identifying the primary rules and secondary rules. The secondary rules are rules that are meant to supplement the primary rules. They may be necessary for the primary rules to remain valid, and they may also be repealed or changed by legislation.
According to Hart’s theory, there are two types of rules that constitute law. The primary rule is a rule that bestows rights and duties. It is generally declared by the legislature or a court. The secondary rule is a rule that may modify, repeal, or add to the primary rule.
The primary rule must be accompanied by a secondary rule to ensure the unity of laws in the legal system. Among the various rules, a legal rule may define the meaning of a word. It may also spell out how a contract is created. A legal rule may also spelled out how a representative is elected or how to conduct a court proceeding.
Austin’s command theory
Using an analytical approach, John Austin wrote about the laws of God, laws of honor and positive morality. He was one of the first to apply an analytical approach to jurisprudence. His views were influential to this day.
Austin’s command theory was his most influential work. The first Chair of Jurisprudence at the University of London, he was called to the Bar in 1818. He was a member of the Criminal Law Commission and served briefly as a Royal Commissioner to Malta.
Austin believed that law is an order of sovereign, backed by a threat of sanction. His theory is controversial because it fails to explain many key aspects of the legal system. It also fails to explain the reasons for the action, the legitimacy of law, and the normativity of law.
Austin believed that laws are set by intelligent beings. He argued that all laws involve concepts of subordination, superior, and subordinate relationship, and duty. He also defined commands as an expression of desire, power, and pleasantness. However, Austin’s command theory is incomplete and needs revision.