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作业代写:Hart's rule of law says

2018-08-02 来源: 51due教员组 类别: Paper范文

下面为大家整理一篇优秀的paper代写范文- Hart's rule of law says,供大家参考学习,这篇论文讨论了哈特的法律规则说。哈特是第二次世界大战以后西方最负盛名的法学家之一,由他创立的新分析实证主义法学是现代西方三大法学流派之一,在对法的概念的分析与法律现象的说明、法律关系的梳理方面作出了巨大的贡献。哈特一方面坚持了法实证主义的立场,同时,又对其作了修正,从而使分析实证主义法学进一步适应了战后英国的社会现实,该学派作为当代西方的一个重要法学流派还将继续存在。

Hart,哈特法律规则说,essay代写,paper代写,作业代写

Hart is one of the most famous jurists in the west since the second world war. The new analytical positivist jurisprudence founded by him is one of the three major schools of modern western jurisprudence, and has made great contributions to the analysis of the concept of law, the explanation of legal phenomena and the sorting out of legal relations. Hart's theory on the first rule of law and the second rule of law, law and morality, and legal concept was formed in the long debate with American jurists fuller, dworkin and others. On the one hand, he adhered to Austin's position of legal positivism, and at the same time revised it, so that the analytical positivism jurisprudence was further adapted to the social reality of post-war Britain. As an important school of contemporary western jurisprudence, this school will continue to exist.

Hart was the banner of analytical positivist jurisprudence after world war ii. The concept of law, which he published in 1961, is a symbol of the formation of new analytical law. In this pamphlet, hart put forward his famous "theory of legal rules", and analyzed the understanding of law by various representative western theories. Hart's theory originates from two theoretical bases, one is the tradition of analytical jurisprudence advocated by austen and the other is the philosophy of language.

In the concept of law, hart discusses austen's jurisprudence in three chapters. On the surface, hart is criticizing Austin's theory, but fundamentally, hart still adheres to the position of analytical jurisprudence, or legal positivist position derived from Austin's analytical jurisprudence. The difference is that hart is trying to replace or compensate for Austin's doctrine of the law with his "rule of law theory." In terms of hart's theoretical tendency, he adhered to austen's position in two other aspects, except that he replaced Austin's legal order theory with his legal rule theory. If Austin's analytical jurisprudence has dominated the national jurisprudence of the common law system for 100 years, then we can say that the jurisprudence replacing austen's analytical jurisprudence is hart's new analytical jurisprudence, or his theory of legal rules.

Hart characterized Austin's legal order as "a general order backed by threats and supported by universal obedience" issued by "individuals and groups that are internally independent and externally independent" and described it as an extension of what he called "armed robbery." He called the legal order "a record of failure," hart said. "we clearly need a new beginning." The new beginning was hart's rule of law, the combination of the first and second sex rules. Basic rules or primary rules require people to do certain behaviors or prohibit people from doing certain behaviors. Secondary rules are subordinate to nature, which introduce new rules to abolish and modify old rules, and determine their scope and way of operation. The first kind of rules set obligations, and the second kind of rules grant authority. The first kind of rule involves the behavior related to material movement and change, and the second kind of rule also causes the generation and change of obligation or responsibility. "The key to jurisprudence," hart says, is "the combination of these two kinds of rules." If the two types of rules and their interactions are understood, most of the features of law can be best clarified.

The starting point of hart's rule of law is that where there is law, human behavior becomes unarbitrary in a sense. Mr. Hart said Mr. Austin's legal orders were based on that same starting point, but his theory was not the same as Mr. Austin's. Austin's theory is "forced to do", while his theory is "obliged to do", so the concept of "obligation" is the starting point of hart's theory. Obligations are divided into moral obligations and legal obligations, which are often confused together. Legal obligations should be viewed from an internal perspective. Here, hart revisits the distinction between the "internal view" and the "external view" : accepting these rules and using them as a guide is an internal view; Not accepting these rules but just being an observer is an external view. The inner view focuses on the reasons for rules and behaviors, while the outer view focuses on the observable possibilities of rules and behaviors.

Hart established a primitive social state in which there was no legislature, no courts, no officials, and the only means of social control was the general attitude of the group towards its standard behavior pattern. Hart regarded this social structure as the society dominated by the first rule. The existence of such a society requires two conditions: first, it suppresses people's ACTS of violence, theft and deception. Second, there are people in a society who accept the rules, and there are people who reject them, but in this society, the former is more than the latter. Such a society is a society closely linked by kinship, common feelings and beliefs. It is a small society in a stable environment, and it is a society that depends on an unofficial system of rules. This is a simple but deeply flawed society, one of which is that social groups do not form a system based on the rules of survival, but are just a set of separate standards, without any certain common mark of the latter, which hart calls "uncertainty." The second drawback is that there is no conscious activity in such a society to abolish old rules and introduce new ones to adapt to new environmental changes, which hart calls "static". The third defect is that this kind of society lacks decisive and authoritative decisions, lacks specialized functional organs, and the way of social control is force, which hart calls "ineffectiveness" of social pressure.

On this basis, hart put forward his own proposition, "the remedy for each of the three major defects mentioned above in the simplest form of social structure is to supplement the primary obligation rule with different types of secondary rules. The remedy for each defect is itself a step from the former legal world into the legal world. For every remedy brings with it a factor of law; These three remedies, taken together, are undoubtedly sufficient to transform the primary rule system into an undisputed legal system."

The way to remedy the first-order rule uncertainty is to introduce the "recognition rule", which is to identify rules with certain characteristics and make them rules to be followed by the society and supported by social pressure. There are various ways in which this rule can be established. For example, in a simple society, unwritten law can be changed into written law, and they can be inscribed on stone tablets to give it authority. The way to remedy the static nature of the first rule is to introduce "change rules", that is, to empower the latter group of individuals to abolish old rules or introduce new ones. Changing the rules can be simple or complex. It is because of these rules that legal relationships such as contracts, wills and transfers of property become possible and established. There is a strong link between changing rules and recognizing them. The way to remedy the ineffectiveness of the first rule of social pressure is to introduce the "trial rule", that is, to make a judgment according to the specific circumstances of an individual in order to establish general rules. The appearance of trial rules defines legal concepts such as judges, courts, jurisdiction and trial. Similarly, the trial rules are closely related to other secondary rules.

Hart claims that the resulting structure of the combination of the three secondary rules is not only the center of the legal system, but also a powerful tool for analyzing other legal theories, as this is the conclusion drawn from the inherent view of law. In these three rules, the recognition rule provides the criterion for evaluating the effectiveness of other rules of the legal system. Therefore, in an important sense, the recognition rule is the final rule and the highest rule.

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