...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...
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...Much of the 18th and 19th century’s jurisprudence field was ruled by the positivist school of thought - unseating the natural law theories of the time, with its clear separation of law and morality coupled with empirical methods. The 20th century however, saw a huge of interest again in the natural law theory. American legal philosopher, Lon Fuller who was “an outsider within the intellectual climate of mid-twentieth century legal philosophy” today, stands as “the leading natural lawyer” at the forefront of it. However, despite seeming to conform to natural law thinkers, Nicholson claims that Fuller’s “natural law terminology should not be allowed to obscure his originality”. He eschews the Christian doctrines normally present in natural law, and instead presents a more procedural approach to marry the ideas of morality and law. This essay will explore his claims - namely the “internal morality of law”, its moral authority and also further the argument that posits the inherent intertwine of law and morality is correct and necessary as the first line of defence against evil regimes and as a check and balance to ensure government accountability. Fuller’s Internal Morality of Law For context, it’s worth noting what Fuller believes as the purpose of law - that it is a purposive “enterprise of subjecting human conduct to the governance of rules”. Fuller begins by introducing two types of moralities - the morality of duty and aspiration. He describes the two using “an imaginary...
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...history which resulted in million fatalities. The Nuremberg Trials were a series of military trials held by the victorious Allied forces of World War II most notable for the prosecution of prominent members of the political, military, and economic leadership of the defeated Nazis. After the World War II the laws and procedures were written down for the Nuremberg Trial and at that time using jurisprudence which provides a theory for why we need laws the committee defined a new law “Crime Against Humanity” as “Murder, extermination, enslavement, deportation, and other inhumane acts committed against any civilian population, before or during the war, or persecutions on political, racial or religious grounds in execution of or in connection with any crime within the jurisdiction of the Tribunal, whether or not in violation of the domestic law of the country where perpetrated”. This law was added to the draft and the Nazis were indicted for war crimes, crime against peace and crime against humanity. The new law “Crime Against Humanity” is derived from the “Natural Law” which is oldest law of jurisprudence which states “that the governments and legal systems should reflect the moral and ethical ideas that are inherent in human nature”. Basically all the laws are believed to have been derived from natural law. Thus, on the basis of this law the judges of the Nuremberg Trial dismissed all the claims of the defendants and overruled the possibility of letting them free on the basis of “positive...
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...0-19-876122-8) is the most famous work of the legal philosopher H. L. A. Hart. It was first published in 1961 and develops Hart's theory of legal positivism (the view that laws are rules made by human beings and that there is no inherent or necessary connection between law and morality) within the framework of analytic philosophy. In this work, Hart sets out to write an essay of descriptive sociology and analytical jurisprudence. The Concept of Law provides an explanation to a number of traditional jurisprudential questions such as "what is law?", "must laws be rules?", and "what is the relation between law and morality?". Hart answers these by placing law into a social context while at the same time leaving the capability for rigorous analysis of legal terms, which in effect "awakened English jurisprudence from its comfortable slumbers".[1] As a result Hart's book has remained "one of the most influential works in modern legal philosophy",[2] and is also considered a "founding text of analytical legal philosophy",[3] as well as "the most successful work of analytical jurisprudence ever to appear in the common law world The starting point for the discussion is Hart's dissatisfaction with John Austin's "Command Theory": a jurisprudential concept that holds that law is command backed by threat and is meant to be ubiquitous in its application. Hart likens Austin's theory to the role of a gunman in a bank and tries to establish the differences between the gunman's orders and those made by...
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...concept of law according to Hart is a system 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...
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...INTRODUCTION Precedent is created by judicial decisions which may be given either by a supreme or a subordinate Court. A judicial precedent contains in itself a principle of law. Judicial precedents are an important source of law. They have enjoyed high authority at all times and in all countries . the common law of England has been built up the decisions of England judges. There are so many reasons why precedents operates as an authoritative source of law and it also has many kinds according to its probative force. decisions than to the views of text writers. A judicial precedent speaks with authority. It is an evidence of law and source of it. The authority of precedents is great because of power, skill and professional reputation of judges who make them. Judicial precedent means the process whereby judges follow previously decided cases where the facts are of sufficient similarity. The doctrine of judicial precedent involves an application of the principle of stare decisis, which is Latin for "let the decision stand" i.e. to stand by the decided. In practice, this means that inferior courts are bound to apply the legal principles set down by superior courts in earlier cases. Judge made law via the cases upon which they decide is one of the oldest sources of law. This provides in the law consistency and predictability. Judicial precedent means a judgment of a court of law cited as an authority for deciding a similar set of facts; a case which serves as authority for the...
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...the command of the sovereign backed by the threat of punishment. Arguments over the nature of law focus on a revised set of positions. Legal positivism is represented by analytic legal positivists, like H.L.A. Hart, Joseph Raz, and Jules Coleman. The natural law tradition is defended by John Finnis. And a new positition,interpretivism is represented by Ronald Dworkin. The "What is law?" question has been approached by contemporary legal philosophers who have over many decades attempted to define the term. For example, the sociological tradition includes important work on the nature of law by Max Weber and Niklas Luhmann. . Natural law theory is strongly associated with classical and medieval thought, especially Aristotle, Roman jurisprudence, and St. Thomas Aquinas. There are several challenges associated with the task of explicating natural law theory, and one of the most important tasks of this introductory entry is simply to identify these challenges. First, there are two interrelated but distinct views that are called "natural law theory." One is a view about the nature of morality: this view asserts that there are natural moral laws, and it is not essential to this view that it take...
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...concept of law according to Hart is a system 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...
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... “ by formulating the Grundnorm , we don’t introduce into the science of law any new method . We merely make explicit what all jurists, mostly unconsciously assume when they consider positive law as a system of valid norms and not only as a complex of facts and at the same time repudiate any natural law from which positive law would receive its validity . That the Grundnorm really exist in the juristic consciousness is the result of a simple analysis of actual juristic state means. The Grundnorm is the answer to the question how and that means under what condition – are these juristic statements concerning legal norms, legal duties , legal rights and so on , possible .”(1) 1. Raymond Wacks : Understanding Jurisprudence In other hand it seems that the validity of this norm rests not on another norm or rule of law , but is assumed for the purpose of purity . It is therefore a hypothesis about the reality behind the law but explicitly as a methodological maxim , a norm of method which is ontologically neutral . Kelson brings this term Grundnorm or basic norm for answering a question of legal theory , why is law obeyed ? His answer was legal norms are objectively valid and they derive their ultimate validity from the Grundnorm. He considers legal science as a pyramid of norms with Grundnorm at the apex . The subordinate norms are controlled by norms superior to them in hierarchical order . However Grundnorm...
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...This paper discusses the application of Chiba's tripartite model to Southeast Asian laws. Chiba criticises the 'universal' Western model jurisprudence as disregarding cultural specificity. Societies have always “cherished their indigenous law as an integral part of their cultural heritage.” In fact, Southeast asian countries are an epitome for ecclectic cultural and legal diversity. Chiba's tripartite model structures a legal-system into three parts, namely “official law”, “unofficial law”, and “legal postulates”. Chiba’s theory supposes that none of these elements ever exists in isolation; they continuously interact in dynamic fashion. Therefore in Chiba’s view law is always plural. The purpose of Chiba's model is to identify the structural alignment and function of the indigenous laws in relation to state laws which are, mostly, based on received Western law (with Hellenistic/Christian colouring). My thesis argues that the three elements continuously overlap, especially regarding legal postulates, and that the model cannot work without including Chiba's other two legal methodologies: “the dichotomies model” and the “model of received and indigenous law”. Chiba acknowldges these overlaps when he applied his model to Japan for instance. After all, Asian countries are driven by “an ongoing process of self-developing indigenous law.” Official laws are laws accredited by state authorities (state laws) and form the overall jurisdiction over a country. Interestingly, as customary/religious...
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...TAXATION – TUTORIAL QUESTIONS QUESTION 7 Tax can only be collected when it is due. Where the tax is due, there are two principal modes of collection. These are judicial and non-judicial. The question is better with in three parts. The first part will deal with conditions under which a tax becomes due. The second part will deal with the judicial mode of tax collection. The third which is the main thrust of this question will outline the four non-judicial modes of tax collection. Under the law, the commissioner can collect tax only when the tax is due. And tax becomes due under different circumstances. For a tax payer subject to self-assessment under s. 78, the due date is when he files his assessment with the commissioner. Under s 72(7) the commissioner may demand tax earlier than the basis period where the tax payer dies during the basis period or becomes bankrupt or is wound-up or goes into liquidation, or is about to leave Ghana indefinitely or is about to cease activity in Ghana, under those circumstances, the due date is the date the commissioner shall specify in the notice demanding the tax. For those who pay tax by installment, their due date is the date each installment is due as provided under division III of part X of chapter 1. For everybody else, the due date is within 30 days of the date of service of the notice of assessment. Where the tax is due as explained above, the amount due is treated in law as a debt due to the commissioner. The...
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...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...
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...Middle East Name: Course: Instructor: Date: Aristotle divides law into positive and natural law. Natural law describes laws that originate from the universe and the nature. Natural law uses reason to analyze both the personal and social behavior binding specific individual. Positive law comes from the regulations made by the lawmaker. Positive law describes the laws made by humans and obligate people to do a specific action. Positive laws also refer to the laws established by a particular group of people to define specific rights. Under natural rule, something is illegal because it is wrong and is inappropriate to our human nature. Under positive rules, an action is wrong because it is illegal. Natural law and positive law are opposite, and Aristotle states that the laws are a contrast. Both the natural law and positive law have theorists who simply the topic of law and society. The natural law theorists are Aristotle, St. Thomas and Plato while the legal positivists are Thomas Hobbes, H.L.A Hart and John Austin (Adolphe, Fastiggi & Vacca, 2012). Nevertheless, natural law is more essential than the positive law. Positive law has no power to abrogate or change natural law. Positive law focuses primarily on human behavior and activities which the natural law does not rule out. Positive law, as St. Thomas says, ‘'can only add value to natural rules; it cannot subtract from the law ''. Therefore, another possible way of looking at the partition...
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...Louisiana laws follow the precise action under civil and common law through jurisprudence. The topic of jurisprudence rests at the interconnection of law and politics, the hands-on and the logical reasoning. One has to have the understanding the theoretical groundworks of law; jurisprudence can enlighten us to the place of the rightful structures on the law within larger logical frameworks. Louisiana has some of the toughest laws when it comes to felony conviction. Introduction This may seem somewhat objective, but did you know that the laws of Louisiana are different...
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