...of rules and the rules are the sole basis of a legal system. According to hart legal system is nothing but a combination of primary and secondary rules. Rule of recognition is a kind of secondary rules which validates a legal system and which is central, foundational and essential to every legal system. But this view of hart has been criticized by other legal positivists who have pointed out some lacuna in the Hart’s doctrine as well as they raised some valid questions which is also necessary to be considered. Hart describes rule of recognition as a foundation of a legal system. H.L.A Hart was considered as one of the great legal positivist in the theory of analytical positivist jurisprudence. Analytical jurisprudence has made a systematic analysis of legal concept by different thinkers during different period. Among the positivist thinkers Hart is one of them who very efficiently criticize his earlier positivist theory with an explicit motive to describe the legal system of a society. In his book “THE CONCEPT OF LAW”, published in 1961, He has made an attempt to describe the development of legal system from primitive to evolved legal system. According to him 1“law is best understood as the union of primary and secondary rules, the primary rules are the rules of obligation whereas the secondary rules are dependent upon the primary rules which allow the creation, extinction and alteration of primary rules.” The difference between the two types of rules are primary rules impose...
Words: 327 - Pages: 2
...Introduction L on Fuller made an impressive observation in his response to HLA Hart’s Holmes Lecture . His observation was that “Throughout his discussion Professor Hart seems to assume the only difference between Nazi law and, say, English Law is that the Nazis used their laws to achieve ends that are odious to an Englishman.” Though Hart and Fuller completely agreed about the odiousness of the ends that the Nazis pursued and the disgusting means through which they pursued them: racial discrimination, war crimes, genocide and torture. However, Fuller thought that there were important aspects of misrule by the Nazis that needed special attention by jurists and legal philosophers. He said that continuous violations of principles of legality...
Words: 2253 - Pages: 10
... It is possible to describe law as the body of official rules and regulations, generally found in constitutions, legislation, judicial opinions, and the like, that is used to govern a society and to control the behavior of its members. Law therefore is a formal mechanism of social control. Legal Positivism John Austin -"A rule laid down for the guidance of an intelligent being by an intelligent being having power over him. A body of rules fixed and enforced by a sovereign political authority." Professor Hart defined law as a system of rules, a union of primary and secondary rules. Positivism emphasizes the separation of law and morality. Thomas Hobbes can be credited to be the father of legal positivism. According to Hobbes , in the state of nature there is “a war of every man against every man, a state of constant strife in which the life of man was solitary, poor, nasty, brutal and short. Law and the government therefore became necessary to promote order and personal security.” According to legal positivists, law is man-made, or “posited,” by the legislature. Where natural law theorists may say that if a law is not moral there is no obligation to obey it, by appealing to moral or religious principles, but positivists hold that until a duly enacted law is changed, it remains law, and should be obeyed. Legal positivism regards law as a system of clearly defined rules, the law is defined by the social rules or practices that identify certain norms as laws. Jeremy Bentham...
Words: 6207 - Pages: 25
...ANALYTICAL JURISPRUDENCE (LEGAL POSITIVISM) Synopsis: (i) Socio-economic and historical context on which it arose. (ii) Positivism in Philosophy – the important founder Augustine Cômte. (iii) Its expression in Law – Analytical Legal Positivism. (a) Different aspects of Legal Positivism (b) John Austin (c) Neo-Positivist Trends (aa) Hart’s Concept (bb) Linguistic Trend (iv) Kelsen’s Pure Theory of Law (v) General Appraisal and Critique (1) Socio-economic and historical context Just before 1848 Revolution, Marx says in the development of Bourgeois class there are 2 phases to distinguish: (i) One which constitutes support Absolute Monarchy (ii) The one which constitutes itself as class, overthrows Feudalism and it establishes its own political rule (Bourgeois Rule) The 1st phase lasted for 3 centuries from 16th C – 18th C The 2nd phase roughly from 1780’s to 1840’s. Actually 1789-1848 is called the Ag of Revolution. During the 1st phase, when it is still constituting itself – their philosophical spokesmen are found in NL school – i.e. Hobbes, Locke etc. – Notion of Justice and equality show the core they argue for change against status quo. The philosophy is metaphysical but revolutionary because it is fighting for change against the status quo. 2nd Phase: The triumph/victory of the Bourgeoisie. In this phase – consolidation of the Bourgeoisie clan at the political level - this found expression in the French Revolution 1789...
Words: 4510 - Pages: 19
...R outledge Revision: Questions & Answers Jurisprudence 2011–2012 Each Routledge Q&A contains approximately 50 questions on topics commonly found on exam papers, with answer plans and comprehensive suggested answers. Each book also offers valuable advice as to how to approach and tackle exam questions and how to focus your revision effectively. New Aim Higher and Common Pitfalls boxes will also help you to identify how to go that little bit further in order to get the very best marks and highlight areas of confusion. And now there are further opportunities to hone and perfect your exam technique online. New editions publishing in 2011: Civil Liberties & Human Rights Commercial Law Company Law Constitutional & Administrative Law Contract Law Criminal Law Employment Law English Legal System Routledge Q&A series Equity & Trusts European Union Law Evidence Family Law Jurisprudence Land Law Medical Law Torts For a full listing, visit http://www.routledge.com/textbooks/revision R outledge Revision: Questions & Answers Jurisprudence 2011–2012 David Brooke Senior Lecturer in Law and Module Leader in Jurisprudence at Leeds Metropolitan University Fifth edition published 2011 by Routledge 2 Park Square, Milton Park, Abingdon, Oxon, OX14 4RN Simultaneously published in the U S A and Canada by Routledge 270 Madison Avenue, New York, NY 10016 Routledge is an imprint of the Taylor & Francis Group, an informa business This edition published in the Taylor & Francis e-Library, 2011...
Words: 105136 - Pages: 421
...judges[28] held that the Full Court erred in holding that continuity, either of traditional laws and customs, or of society, was required by s 223(1)(c). Rather than being required by s 223(1)(c), continuity is relevant to s 223(1)(a) and the interpretation of the phrase ‘traditional laws and customs’.[29] Gleeson CJ, Gummow and Hayne JJ (McHugh J concurring on this point[30] ) held that s 223(1)(c) does not incorporate a pre-existing body of common law into the Native Title Act.[31] In their judgment, Gleeson CJ, Gummow and Hayne JJ held that the significance of s 223(1)(c), recognition by the common law, is that it points to the relevant intersection between legal systems occurring at the time of settlement. The native title rights and interests that are recognised by the common law are those that existed at sovereignty and can now be enforced and protected.[32] Gaudron and Kirby JJ held that recognition and protection of native title depends upon native title not having been extinguished.[33] The court confirmed [34] that s 223(1)(c) required that the rights and interests claimed must not be repugnant to the common law.[35] Callinan J held that for native title rights and interests to be recognised by the common law, they must be sufficiently precise, as to boundaries, persons entitled, traditional laws and customs.[36] He also seemed to imply that a physical presence is therefore required by s 223(1)(c).[37] B The Interpretation of s 223...
Words: 2182 - Pages: 9
...m w e a n Business Strategy and Human Resource Management: Setting the Scene Ed van Sluijs & Frits Kluytmans MERIT Open University This article is based on a journey through the wilderness of strategic human resource management. Part 1 gives an overview of the recent literature on this topic, particularly pertaining to the two issues which received have most attention until now: the relational aspects and the content aspects. In part 2, we go deeper into the wilderness and explore the least known aspect of strategic human resource management, namely the process aspects. This exploration is based on the simultaneous study of the (scarce) literature and four cases. Finally, the connection between the three aspects is investigated. INTRODUCTION Increased integration between human resource management and business strategy is one of the most important demands that are placed upon modern strategic human resource management. In both the management and the academic literature, it is generally acknowledged that the strategic deployment and management of personnel can contribute to the success and continuity of the firm. Some go even further by stating that a firm’s human resources form the basis of the firm’s competitive advantage. In this view, the human resources are the most important assets of an organisation. At the same time, in addition to the importance of the human resources as such, it is believed to be important that the management of the human resources should be in perfect...
Words: 10628 - Pages: 43
...m w e a n B usiness S trategy a nd H uman R esource Management: S etting t he S cene Ed van Sluijs & Frits Kluytmans MERIT Open University This article is based on a journey through the wilderness of strategic human resource management. Part 1 gives an overview of the recent literature on this topic, particularly pertaining to the two issues which received have most attention until now: the relational aspects and the content aspects. In part 2, we go deeper into the wilderness and explore the least known aspect of strategic human resource management, namely the process aspects. This exploration is based on the simultaneous study of the (scarce) literature and four cases. Finally, the connection between the three aspects is investigated. INTRODUCTION Increased integration between human resource management and business strategy is one of the most important demands that are placed upon modern strategic human resource management. In both the management and the academic literature, it is generally acknowledged that the strategic deployment and management of personnel can contribute to the success and continuity of the firm. Some go even further by stating that a firm’s human resources form the basis of the firm’s competitive advantage. In this view, the human resources are the most important assets of an organisation. At the same time, in addition to the importance of the human resources as such, it is believed to be important that the management of the...
Words: 10708 - Pages: 43
...Role of Pacta sunt servanda HISTORY Few rules for the ordering of Society have such a deep moral and religious influence as the principle of the sanctity of contracts: Pacta sunt servanda. In ancient times, this principle was developed in the East by the Chaldeans, the Egyptians and the Chinese in a noteworthy way. According to the view of these people, the national gods of each party took part in the formation of the contract. The gods were the guarantors of the contract and they threatened to intervene against the party guilty of a breach of contract. So the making of a contract was bound up in religious formulas and that a cult of contracts actually developed. For the Islamic people, the principle, Pacta sunt servanda, has also a religious basis: "Muslims must abide by their stipulations." This is clearly expressed by the Koran in many places, for example, where it is said: "Be you true to the obligations which you have undertaken. . . . Your obligations which you have taken in the sight of Allah. . . . For Allah is your Witness." For the people of the Mediterranean area, the common interest in commerce was added to the religious motive. The juridical sense of the Romans recognized that a well-regulated trade was possible only if contracts were kept. Then, as earlier, contracts were considered as being under Divine protection. But their psychological basis then was, above all, the necessity of a legal regulation of international contractual relations. Christianity exercised...
Words: 1655 - Pages: 7
...THE INTERNATIONAL LEGAL ORDER Controversiae (disputes) is the first word in book I of Hugo Grotius’ foundational text De Jure Belli ac Pacis(The Law of War and Peace, 1625). Much modern scholarship in international law has followed this strand of Grotius’ thought in orienting the subject to the problem of managing disputes. Since the late nineteenth century, generations of leading scholar-practitioners have shaped a view of international law which emphasizes legal doctrines and materials related to disputes: the specific rules one party to a dispute may invoke against another, the sources (e.g. treaty, custom) to which an international court will look to identify international law rules, the general principles (e.g. acquiescence, abuse of rights) that international courts have borrowed from national legal systems to help deal with international cases, the foundational principles of international law (e.g. state responsibility) enunciated by courts, the precedential implications of a specific decision or a specific settlement agreement. This focus owes much to the sociological model of the successful international lawyer as it developed in the English and French traditions of international law over the past century: that of the academically respected practitioner, primarily the world–wise professor-counsel or the erudite lawyer–civil servant, whose career involved both scholarship and representing litigants in the management of disputes, and might eventually culminate in becoming...
Words: 3315 - Pages: 14
...Chapter 10 Property: Dispositions SOLUTIONS MANUAL Discussion Questions: 1. [LO 1] Compare and contrast different ways in which a taxpayer triggers a realization event by disposing of an asset. A realization event for tax purposes is created in many ways. Virtually any disposal will result in a sale or other disposition. These include a sale, trade, gift to charity, disposal to the landfill, or destruction in a natural disaster. In a sale or trade (exchange), the taxpayer receives something of value in return for the asset. In contrast, a charitable contribution, disposal, or destruction from a natural disaster generally results in a loss of any remaining basis in the asset without compensation (unless reimbursed by insurance). 2. [LO 1] Potomac Corporation wants to sell a warehouse that it has used in its business for 10 years. Potomac is asking $450,000 for the property. The warehouse is subject to a mortgage of $125,000. If Potomac accepts Wyden Inc.’s offer to give Potomac $325,000 in cash and assume full responsibility for the mortgage on the property, what amount does Potomac realize on the sale? When the property disposed of is subject to a liability and the buyer assumes the liability, the relief of debt increases the amount realized. Thus, Potomac’s amount realized consists of $450,000, which is cash of $325,000 plus $125,000 relief of debt. This assumes that the buyer hypothetically transfers cash to the seller in order to pay...
Words: 17470 - Pages: 70
...owners involved. The producer Glenn Gainor thought it would be a great ideal to give the community of Culver City a chance to showcase what the city had to offer. When production of the film started Screen Gems considered filming in Georgia, because it offered a richer film tax credit than California. However the company decided to film locally in part, because it was able to save money filming so close to home. By filming close to home the company cut cost on parking and transportation. The producer got the chamber of commerce on board, the chamber of commerce help enlisted the local business willing to showcase their establishments in the film this resulted in a lower film permit fee for the company and the local business received some recognition as a result of their establishment appearing in the film. The producer’s motivation to shoot in Culver City was inspired by how movies use to be filmed. The producers wanted to capture a hometown modern day romance with this movie, and with the use of the local restaurants, houses and beautiful historical buildings in downtown Culver City gave the producer the feel he was looking for. In the movie several popular restaurants such as Rush Street on Washington Blvd as well as Cukasha restaurant and LEpicerie on Culver Blvd were showcased...
Words: 1868 - Pages: 8
...law is ‘the body of law composed of principles and rules of conduct which states feel bound to observe and do commonly observe in their relations with each other’. However, it is constantly being questioned whether international law really can be considered law at all. The uncertainty as to its validity can be explained by the arguably frequent breaches that occur as well as the difficulties in ascertaining its content and ensuring its effective enforcement. As such, the validity of international law as a real legal order will be evaluated by examining the following. (a) The sources of international law (b) The enforcement of international law (c) The frequency of breaches within international law (a) The sources of international law The substantive content of international law can be ascertained by reference to a number of different sources. Article 38(1) of the Statute of the International Court of Justice (ICJ) recognises that the Court when deciding on disputes of international law can apply the following: a. International conventions establishing rules expressly recognized by the contesting states; b. International custom as evidence of a general practice accepted as law; c. The general principles of law recognized by civilized nations; d. Judicial decisions and teachings of the most highly qualified publicists of the various nations, as subsidiary means for the determination of rules of law. As a matter of general consensus, this serves...
Words: 2984 - Pages: 12
...THE CONCEPT OF A LEGAL SYSTEM An Introduction to the Theory of Legal System SECOND EDITION JOSEPH RAZ CLARENDON PRESS · OXFORD -iiiOxford University Press, Great Clarendon Street, Oxford ox2 6DP Oxford New York Athens Auckland Bangkok Bogota Bombay Buenos Aires Calcutta Cape Town Dar es Salaam Delhi Florence Hong Kong Istanbul Karachi Kuala Lumpur Madras Madrid Melbourne Mexico City Nairobi Paris Singapore Taipei Tokyo Toronto Warsaw and associated companies in Berlin Ibadan Oxfordis a trade mark of Oxford University Press Published in the United Statesby Oxford University Press Inc., New York © Oxford University Press 1970, 1980 First published 1970 Second edition 1980 Reprinted 1990, 1997 All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted, in any form or by any means, without the prior permission in writing of Oxford University Press. Within the UK, exceptions are allowed in respect of any fair dealing for the purpose of research or private study, or criticism or review, as permitted under the Copyright, Designs and Patents Act, 1988, or in the case of reprographic reproduction in accordance with the terms of the licences issued by the Copyright Licensing Agency. Enquiries concerning reproduction outside these terms and in other countries should be sent to the Rights Department, Oxford University Press, at the address above This book is sold subject to the condition that it shall not, by way of trade or otherwise...
Words: 95027 - Pages: 381
