1.1. What the law is? To answer this question we shall consider three particular approaches to law on account of the influence they have had and the insight which they give the nature of the law. Theories of Law: These are the theories of natural law, which defines law according to its content and looks to the problem of what law ought to be; a) Imperative theory b) Realistic theory a) The imperative theory It defines law according to formal criteria. It propounded by Austin.
A. INTRODUCTION International Law has been designated to bind most of the nation states that exist in this modern world to conduct the administration of their states under one regulation. This international law was made under the agreement of the states. All states that agreed upon an international law are bind to its responsibilities and also the consequences if there is a violation in regards to the international law. Many scholars believe that there is no higher authority other than the international law.
Its prominence had shifted from the legal institutions to courts that is the law applying institutions. Its insistence of the role of coercive force gave way to theories emphasizing the systematic and normative character of law. The most eminent characters who contributed to this modified and revised theory of positivism are Hans Kelsen (1881 -1973) from Austria, H.L.A.Hart and Joseph Raz. But they have contrasting
In his essay The Model of Rules I, Professor Ronald Dworkin argues against a certain theory of law he attributes to H.L.A Hart called “positivism.” While Dworkin argues against many tenets of the positivist theory, I will focus this essay on critical reasons against Dworkin’s argument against the legal positivist thesis that the law consist of nothing but rules. To do so, I will explain the necessary components of Hart’s theory of law required to understand Dworkin’s rebuttal. Then, I will reconstruct Dworkin’s argument against what I will classify “nothing but rules” claim, and I will ultimate claim Dworkin’s argument fails because his premise that states principles are extra-legal and cannot be explained as part of the categories is false. In particular, I indicate how principles can be legally binding like legal rules are, and I pick apart his reasons for believing that there are clear distinctions between laws and principles.I will interpret the cases Dworkin uses to support his thesis to show the limitations of his argument. Finally, woven within the points I stated above, I will be sure to anticipate potential counterarguments and weigh them against my thesis.
The Argument An eighteenth-century theory is examined by H. L. A. Hart where he explains his stance on the significance of the psychology of action that creates crime. The theory seeks to explain how human action solely muscular contraction is. Austin tells society the misguidance of using words such as, hitting, shooting or killing because they do not accurately depict singular actions as opposed to what they really are, which are various muscular contractions. Hart believes the mere desire to move one’s muscles has little to no impact on the intention of behavior. Hart explains there are two elements to Austin’s theory.
When Holmes talks of the “failure of all theories which consider the law only from its formal side” of logical deduction, he is frankly acknowledging the crucial role played by experience and even irrational forces. Considered from the perspective of intellectual history, The Common Law may be part of the “revolt against formalism” in many fields, the struggle between “rationalists” and “empiricists.” In this account, everyone from Descartes to Bacon to Hume is engaged in one long battle over whether truth is to be found “in here,” through strictly logical reasoning on the model of mathematics, or “out there,” through observation of the
According to Austin a valid law is any law, which has been enacted by the sovereign and contains sanctions . Aharon Barak’s approach in the laor case illustrates Austin’s claims by saying that the Knesset, which is the sovereign body in Israel, has the right to enact any law it pleases with no limitations . If a person does not follow the law of “you will not stand on the blood of your neighbor”, he will be susceptible to sanctions. Thus according to Austin this law would be seen as valid because Knesset, the sovereign, created it and the law contains
Article Review: Feminists Critiques of International Law and Their Critics Before the start of the Post-Positivist era, the majority of the scholars of International Relations and International Law has always considered that their subject of study and the theories incorporated in it to be unbiased and virtuous in nature, thus believing that those scientific methods they have done and the concepts that they have created were mostly accepted by the global society. Feminists theorist challenged this assumption with their explanation on how International Law and to a broader extent International Politics, have always been somewhat biased towards men, as their ideals and interests are mostly represented in it, while the women’s are not. This particular
International law has four principal sources that include tradition and custom, scholarship and expertise, judicial precedents, with treaties and conventions. In several countries the sovereign state creates their traditions and customs based on another’s behavior. The rules will vary depending on the country the person reside. Due to the fact the united states laws have certain rules , other senators and or president is prohibited from trying to regulate some rules to arrest a person who commits a crime. From the reading, “an example, it was part of traditional international law for ships on the high sea to display a specific pattern of colors like red, green and white lights at nighttime.
However, international law has developed since the decision of the PCIJ in Lotus and has shifted from a focus on bilateral relations among states where a state’s freedom to exercise its sovereignty is only limited by prohibitive rules to which they have consented, to a focus on the international community as a whole. A plethora of international declarations and conventions focusing on states’ duties to respect and protect human rights within their borders has emerged since the mid 20th century. This shift in trajectory challenges the consensual nature of international legal obligations and belies the role of the state as the central subject in international law. Traditionally, there is no hierarchy between the primary sources of international