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...
HART-CHAPTER 5: THE UNION OF PRIMARY AND SECONDARY RULES
A Fresh Start
1. Hart begins, by recounting the many ways in which Austin’s theory failed. He talks about
three devices that Austin employed to address the criticisms leveled against him.
a) Tacit order
b) Nullity being a sanction
c) The sovereign moving from his official to his personal capacity
2. Hart then concludes that these devices failed to solve Austin’s problem and claims that the one
thing that is truly missing and that could have saved his theory “is the notion of a rule defining
what must be done to legislate…”
3. “The last three chapters are therefore the record of a failure and there is plainly need for a fresh
start. Yet the failure is an instructive one… because I teach point with a theory failed to fit the facts,
it was possible to see at least an outline why it was bound to fail and what is required for a better
account…”
4. The root cause of failure for Hart was the fact that orders, obedience, habits and threats cannot
by their combination yield “the idea of a rule, without which we cannot hope to elucidate even the
most elementary forms of law…” ( WE NEED CRA CRITICAL REFLECTIVE ATTITUDE , AUR YEH
MISSING HAI AUSTIN KI THEORY MAIN HE ONLY SAY THERE IS ONLY DANDA )
5. At this point Hart gets excited and in the first paragraph of page 81 starts talking about how his
theory is going to depend upon two different though related types of rules (AUSTIN NEY SAB EK
DABY MAIN DALA THA DUE TO ITCH OF UNIFORMILTY ) BUT HART ADDED RULES IN 2 BOXEX ).
Under the first type, which he calls basic or primary, human beings are required to do or abstain
from certain things, whether they wish to or not. Rules of the other type are in a sense “parasitic
, upon or secondary to the first” for they provide that human beings may, by doing or saying
certain things introduce new rules of the primary type. (DUTY IMPOSING LAW , IDR SANCING HAI
JSEY TORT WEGRA MAIN DAMAGES HAI CRIMINAL MAIN JAIL HAI )(AND NOW IN SECONDERY ,
POWER CONFORNING LAW E G , MAKE FASHI MINISTER IN TILS HE CAN MAKE NEW RULE IN TILS
)
6. Rules of the first type impose duties, rules of the second type confer powers
. Rules of the first type concern (DON’T RAPE,KILL)actions involving physical movement or
changes, rules of the second type provide for operations which lead to variation of duties or
obligations (JUDGES, PARLIAMENT ). “…That in the combination of these two types of rule, there
lies, what Austin wrongly claimed to have found in the notion of coercive orders, namely ‘the key to
the science of jurisprudence.’” (AUSTIN CALLED COMMANDS KEY TO SCINCE OF JURIS, GALAT
KAHA THA , KEY IS REALLY AS HART SAID IS COMBINATION OF PRIMARY AD SECONDARY )
(CRITICISM . WE ARE NOY DENYING AUSTIN VIEW, JUST HE IS GIVING TOOMUCH IMPORTANCE
TO SANCTION )
7. For Hart whenever the word law is used, the combination of primary and secondary rules
will always be a “central case.”
(AUSTIN DEFINITION OF WORD RULE , IS CATER TO WORD OBLIDGED , BUT RULE WALY
WORDS SHOULD LEAD TO OBLIGATION ) (AUSTIN KETA HAI OBLIDEGED MAIN WAZAN ATA
HAI SANCTYION ATI HAI )
The Idea of an Obligation
1. Hart starts by saying that Austin was correct to say that wherever there is law, human conduct is
in some sense optional or obligatory. However, he felt that Austin’s theory catered to the word
“obliged” and Austin thus failed to cater to the idea of an “obligation.”
2. Hart then goes on to define the difference between when someone was obliged to do something
or when someone had an obligation (:
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