Frederick Schauer’s paper, Was Austin Right After All? On the Role of Sanctions in a Theory of Law, has two central claims. First, the fact that law is primarily coercive (with the use of sanctions to ensure compliance) has been vastly overlooked in the wake of H.L.A Hart’s critique of John Austin’s work on legal positivism. Second, those who aim to study the philosophical nature of law would be better to examine what makes law truly important and distinctive rather than the necessary and mandatory features of law. In this paper, I will begin by describing Austin’s account of the nature of law. Then, I will explore Hart’s criticisms of Austin’s account that Schauer objects to before delving into Schauer’s argument. To conclude, I will …show more content…
He follows the rules because he sees them as a reason to modify his behaviour. The external point of view, however, describes a member of a group that merely observes rules and is only concerned with avoiding potential sanctions in the case of non-compliance. In his critique of Austin’s work, Hart believes that in making coercion and sanction a central component of the nature of law, Austin imagines a world filled with “bad men”, a term introduced by Oliver Wendell Holmes to describe a person who is more concerned with avoiding the adverse consequences of disobedience of the law (or using Hart’s terminology, a person taking an external point of view). However, Austin overlooks the fact that most people in a society could be considered “puzzled men”, which describes a person who is prepared to comply with the law, as long as they are told what they have to do (or again using Hart’s terminology, a person taking an internal point of view). Therefore, Hart maintains that Austin’s account of the nature of law overlooks the fact that most people take an internal point of view towards the rules. The majority of people do not take into account the sanctions that may befall them if they do not comply; they simply comply because they see the law as a reason to modify their behaviour. Hart’s critique of Austin boils down to determining the normativity of law (the reason why we should
You probably think you know who Stephen F. Austin is but do you really know who Stephen F. Austin is? Stephen Fuller Austin Most commonly known as Stephen F. Austin was a very successful man he was able to take over his father's dream of leading the first anglo american families to texas and build on it a make it into a great thing.
Markinson disrupted social order by effectively disobeying Jessup, but Little and Fromm would coherently agree that the individualistic courage to disobey displayed by Markinson was extremely difficult and nearly impossible; however, this disobedience was greatly needed for an effective outcome. Although breaking social order is viewed as unsuitable and “out of character”, Brandt, an experimenter from Milgram’s research, demonstrated a clear break from authority which made disobedience a simple and rational deed (Milgram 80). Stephen Covey, an American educator, author, business man, and keynote speaker, wrote “The 7 Habits of Highly Effective People”, which puts rational deeds into fundamental concepts called principles (Covey 34). According to Covey, principles are self-evident natural laws and part of the human conscience that act as guidelines for human conduct which are proven to have enduring, permanent value; furthermore, obedience is declared a permanent principle (Covey 35). Markinson refutes this claim by telling the truth about Jessup’s intentions which displays someone’s ability to break a “permanent principle”. Milgram’s concept of disobedience acting as a principle contradicts with Covey’s more effective justification of obedience being a principle. In the end, Fromm and Milgram conclude that Markinson did have the choice to disobey, just as any other soldier would possess, even with the difficult struggles that Little
Fall Commentary Assignment-LAWS 1000BProfessor: Stephen Tasson – TA: Noel Gondek Due Date: October 26, 2012
Criminal law is a construct of the government, enforced through tangible measures. In a democratic society, the government is elected by the citizens, and as such, laws are generally conceived with the aim to reflect whatever ethical or moral standards are presently acceptable. However, in order to be truly effective, some legislation must circumvent current sociological viewpoints in order to create laws that are genuinely in the best interests of society. This results in a delicate balancing act, as lawmakers attempt to weigh the views of the majority against the need for laws to be both reasoned and objective.
Jurisprudence explores what would be the simplest manifestation of law so as to create a civil society society where both individual liberty and normative goals are practiced. Should the the aim of law be primarily centered on the protection of individual liberty or, instead, the normative goals geared toward the benefit of of civil society? The laws in any society ought to not be centered on normative goals it ought to conjointly defend individual liberty.
PHL 612 Philosophy of Law [Calendar Description]: What is law? What makes something a legal norm? Should
This paper will demonstrate how Hart’s account of the relationship between law and morality shows an understanding of how they both work together yet can also work as separate entities. It will take a specific look into the internal point of view to aid the understanding of why
Defining law can be difficult to do since its definition varies among various people. Many people see law as standards for human behavior that reflect the deepest values and morals of the society. Others see law as a game which acts as a set of guidelines for settling disagreements in a nonviolent way. From a sociologist’s perspective law is viewed as a behavioral system with the two aspects of roles/hierarchy and rules/discretion. Not only is law thought of as a behavioral system from a sociologist’s perspective but also as an institution which is a set of directions for doing things. When laws have been disobeyed by a member of society a form of punishment will be determined and it is not always effective. Everyone has their own views on law and punishment which is why I want to look at what theorists Emile Durkheim and Karl Marx view as the role and function of law and punishment. Before I can show the weaknesses, similarities and differences between each of their views I will give an overview of their thoughts on the role and function of law and punishment.
Arguably one of the most influential legal theorists of the 20th century, Ronald Dworkin’s dealings with law’s interpretation and integrity has lead to inevitable contradictions with that of positivist ideology, with his work essentially revitalising a method of thinking that had long been considered dead and buried. Perhaps most notoriously, Dworkin combated the positivist theory of his former teacher and predecessor as Professor of Jurisprudence at Oxford University, H.L.A. Hart. When comparing the two, it is apparent that Dworkin and Hart disagree on a plethora of issues, however there exist several
concentrates that law is purely used to promote good by the state. Furthermore, law should
The legal-formalist belief in the capacity of legal rules to determine the outcomes to legal disputes without having recourse to the judge’s political beliefs or sense of fairness has been severely criticised by, amongst others, legal realists and critical legal studies scholars. This assignment will firstly address what legal formalism entails, following which the criticisms of legal formalism will be discussed and lastly whether legal formalism can impede the transformative ideas of the Constitution. All of the above will be analysed to determine the role of legal formalism today.
The notion of obedience is imperative to the notion of law, and the subject of legal obedience is accepted by virtue of its necessity in the definition of law. The discussion of moral obligation to obey the law, however, raises difficult questions met by various arguments. As a leader of this discussion, Rawls proposes that moral obligation to obey the law is upheld if the system of law is grounded in the principle of fair play.
The proposition by Austin to reduce various types of law into a single form, as command of the Sovereign backed with sanctions had invited much criticism. One of the flaws in his proposition is that not every law is coercive in the way that it is backed with sanction. To view law as command backed by threats of sanction is to overlook a significant part of the legal system.
fact”4, as a reaction to the acts of the bad man, are what he defines as law. Simply put,
It should be noted however that the classical school of thought has had an enduring influence as many legal systems are built on some of its key precepts. The idea of intent for example, emphasizes the importance of the state of mind of the individual and their capacity for making choices. Notions of proportionality in relation to punishment are