jurisprudence

Topics: Jurisprudence, Legal positivism, Ronald Dworkin Pages: 7 (2760 words) Published: October 16, 2014
JURISPRUDENCE
Knowledge is a true justified believe of something.
We use our linguistic intuition to figure out differences in meaning. And their uses seem to be already “there” for some reason (possibly linguistic intuition).

Counter Example: An example that refutes or disproves a hypothesis, proposition, or theorem. We use Counter Example (Opposite scenario/extra condition) - to show that something is wrong i.e. that knowledge does not generally constitute true believe. Counter examples appeal to our intuition. John Austin - Austin claims that all laws are coercive orders that impose duties or obligations on individuals. Laws are commands of a legally unlimited sovereign H.L.A. Hart - Hart says, however, that laws may differ from the commands of a sovereign, because they may apply to those individuals who enact them and not merely to other individuals. Laws may also differ from coercive orders in that they may not necessarily impose duties or obligations but may instead confer powers or privileges. Laws that impose duties or obligations on individuals are described by Hart as "primary rules of obligation." In order for a system of primary rules to function effectively, "secondary rules" may also be necessary in order to provide an authoritative statement of all the primary rules. Primary rules of obligation are not in themselves sufficient to establish a system of laws that can be formally recognized, changed, or adjudicated, says Hart. It must be combined with secondary rules in order to advance from the pre-legal to the legal stage of determination. A legal system may thus be established by a union of primary and secondary rules Secondary rules are necessary to allow legislators to make changes in the primary rules if the primary rules are found to be defective or inadequate. Secondary rules may also be necessary in order to enable courts to resolve disputes over the interpretation and application of the primary rules. The secondary rules of a legal system may thus include 1) rules of recognition, 2) rules of change, and 3) rules of adjudication. Hart argues that the foundations of a legal system do not consist, as Austin claims, of habits of obedience to a legally unlimited sovereign, but instead consist of adherence to, or acceptance of, an ultimate rule of recognition by which the validity of any primary or secondary rule may be evaluated. If a primary or secondary rule satisfies the criteria which are provided by the ultimate rule of recognition, then that rule is legally valid. There are two minimum requirements which must be satisfied in order for a legal system to exist: 1) Private Citizens must generally obey the primary rules of obligation, and 2) Public officials must accept the secondary rules of recognition, change, and adjudication as standards of official conduct. If both of these requirements are not satisfied, then primary rules may only be sufficient to establish a pre-legal form of government. In any legal system, there may be cases in which existing laws are vague or indeterminate and that judicial discretion may be necessary in order to clarify existing laws in these cases. Hart also argues that by clarifying vague or indeterminate laws, judges may actually make new laws. He explains that this argument is rejected by Dworkin, who contends that judicial discretion is not an exercise in making new laws but is a means of determining which legal principles are most consistent with existing laws and which legal principles provide the best justification for existing laws. Dworkin says in Law’s Empire that legal theory may advance from the "preinterpretive stage" (in which rules of conduct are identified) to the "interpretive stage" (in which the justification for these rules is decided upon) to the "postinterpretive stage" (in which the rules of conduct are reevaluated based on what has been found to justify them). A complete legal theory does not merely identify the rules of a legal...
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