This is the complete a - z note on the jurisprudence topic, you just have to go through it once and you can easily attempt the question and get A ++ grade in finals
this is a marked answer by a senior professor you just need to read it and you can even write the same just need to change it a bi...
In the Chapter 5 hart gives the ide of his theory and he also higlights the
three devices which were used by Austin to rescues his theory from failing
and to fill up the gaps, “…number of ancillary devices which were brought
in at the cost of corrupting the primitive simplicity of the theory to rescue it
from its difficulties.”
The three devices were nullity as sanction, hart also points ot that the
absence of such rule in austin theory which helps to be able to hightligt the
fact that when a soverign is acting in his priate capacity and and also
working in his official capacity, “…for it is only in conforming with such a
rule that legislators have an official capacity and a separate personality to
be contrasted with themselves as private individuals.”
Moreover and the tacit approval by soverign is also criticized and as
mentioned above the difference of sovereign under the law when he was in
his private capacity compared to when he was in his official capacity is also
discussed. Thus, such a ‘record of a failure’, as per Hart, warranted a ‘fresh start’.
Importantly, the fundamental reason for the theory’s failure was that orders, habits
and threats cannot ‘by their combination yield the idea of a rule’.
The idea of harts theory is however based on Rules and in chapter 5 he also
claims that the main reason for the failure of Austin theory was his failure
to adduce the idea of rules as Austin theory consists of just the idea of law ,
Hart states “…the ideas of orders, obedience, habits, and threats, do not
include, and cannot by their combination yield, the idea of a rule, without
which we cannot hope to elucidate even the most elementary forms of
law.”
, According to Hart, the difference between these two rules and laws as the
law solely focuses on the legality aspect, the sanction. Whereas rules are
something to be looked upon as “I ought to, you ought to”, it indicates that
the fact that social rules have critical reflective attitude (CRA).
Accordingly, he introduces two interconnected rules, primary rules requiring one to
act or refrain from doing as they are called duty imposing rules , these rules coupled
with secondary rules which are considered as power-conferring and parasitic on
the ‘primary rules and union of these rules gives an ‘central case’ of the
concept of law.
Furthermore, Hart highlights how Austin’s theory failed in explaining the idea of an
obligation and instead Austin’s theory are catering to the word obliged
Differentiates between obligation and obliged the theory where one is
obliged is considered as the theory of coercive orders,Hart uses the old
gunman situation under which he says that B (who was commanded) was
obliged to hand over the money. Saying that he had an obligation will be
miss describing the senario.
Hart points out the main differences between these two terms. First that
the word oblige indicated ones “beliefs and motives with which an action is
done.” This concept of beliefs and motives is further elaborated in the
sense that due to the fact that B was obliged he did not do what he would
have wanted to do because of the fear of the harm which might have been
caused if he would not have obliged the gunman. Thus his preference of
doing what he wanted to do is less eligible.
both of these are also differenciated on the basis of sanction as hart
belives that sanction is great in situtaions where a person is oblidged
whereas if under the obligation then there’s no such fear of sanction.
((existence which requires the appreciation of the internal and external aspects of rules.
While considering the internal aspect of a rules of society serve as a ‘guidance to one’s
behavior’ which represent duties and obligations, the external aspect by contrast reflects
the observation of rules from an external standpoint without accepting the rules or its
reasons for being followed and are thus described as ‘observable regularities’ of conduct or
predictions. ))) (( SEE IF CAN ADD HERE )
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