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Hart's Flaws Of The Legal System

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Unlike previous legal theorists who construed the legal system as merely punitive codes of conduct implicated by a sovereign figure to private citizens, H. L. A. Hart argues that there are supplementary aspects of the legal system that goes beyond these “primary rules” (79). According to Hart, if the customs of a society consists of only primary rules, this form of standards will be permeated with flaws, and cannot be considered as a legal system (92). The mains flaws indicated by Hart are issues of uncertainty, static, and inefficiency (92-93). Uncertainty relates to the doubtful existence of the rules as they are not statutory rules; static relates the inflexibility of the rules; and lastly, inefficiency relates to the lack of force in promulgating the rules (92-93). Along with delineating the flaws, Hart also provides solutions to each flaw, which …show more content…

Hart states that examples of the rule of recognition are statutory laws, and bodies of the legal system which enact and maintain these laws, giving them “legal validity” (95). However, these rules of recognition are not only applicable to the actual laws themselves, but they also validate these legal bodies as authoritative. Through the process known as check-and-balances, each body of the legal system is regulated by the other bodies. For example, the executive can either allow the passage of a bill from the legislature, or veto it; in turn, the legislature may override the executive’s veto. Additionally, the constitutionality of the bill may be inspected by the judiciary, and both the legislature and executive have the power to regulate the makeup of the judiciary body. As displayed, each body within the legal system regulates, and is regulated, by the other

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Third, all subjects are ensured "due procedure of law," which implies that states can't pass discretionary or out of line laws. Fourth, all nationals are ensured "rise to insurance of the laws," which implies

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The flaws in the justice system that affected the outcome of the case of Anthony Porter initially were he had been defended by a lawyer who fell asleep in the court, assigned a judge who later left the bench over a financial scandal, and convicted a jury prejudiced by a witness's false testimony. The judge in the original Porter case later left the court because of financial scandal. Yes, it is relevant to Porter's case and it never can be a fallacy. Because, a person who attempted to falsify accounting statements for financial gain may have done many things to get more money.

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The last are the single rule makers, who create both formal and informal regulations. The first ones are set forth in the laws and statutes, while the second are unwritten and describe the opposition concerned more precisely. Rigidity and brutality of these unwritten rules depend on the personality of the warden. It fluctuates from the allowance of black market “to let off steam from the pressure-cooker” to “moonlight burials” of Gregg Stemmas or “Bread and water Norton’s diet” (22,

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In America 's legal system there are five sources of law. Those include constitutions, pieces of legislation, executive orders, rules and regulations made by administrative bodies, and judicial decisions. They each have a very distinguish relationship with each other. Each source go together hand in hand to make up constitution and it 's amendments when it comes to the regulations of the law. Also when discussing which is better for today 's usage, common law or code law the choice is obvious.

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One of the reasons being that, in many cases the command of the public force is entrusted with judges, and to enforce its decisions, the whole power of the state would be used. No one wants to come up against something so much more powerful than him or her. The article also assures us that in every system there is a rational explanation for the outcome. A cause and effect relation binds everything.

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John Austin and H.L.A. Hart offer differing analyses of obligation/duty and its connection to sanctions, however H.L.A. Hart provides superior reasoning in his analysis versus John Austin. While John Austin is able to provide an analysis of obligation and its connection to sanctions, his arguments are insubstantial. Instead, Hart develops a sophisticated and detailed description of the connection and fills in the gaps where Austin’s account lacks. This paper will analyze both philosophers’ accounts of obligation and sanction and how each relates to one another. To begin, it is necessary to briefly describe, in general terms, the positivist view of the nature of law.

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It is commonly known that the our constitution and the amendments thereof, were enacted by our forefathers with the intentions to provide the American citizen with certain protections and guaranteed rights. However, in these contemporary times, there has been much public controversy with our judicial system as to whether or not that some juveniles who commit a crime are being treated differently than others who commit the same crime (Hawkins, Laub, Lauritsen, & Cothern, 2000, p. 2). Whereas, the American Sociological Association [ASA], (2007), article suggests that the differences of treatment and/or punishment imposed by the judicial system is discriminatory in nature (p.1). Furthermore, according to research conducted Sampson & Lauritsen,

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The society establishes a judicial power to impart justice. Thus, he sees the commonwealth as legislative power to make laws and executive power to enforce laws with public support,

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This in essence means that the rule of law is meant to keep individuals ‘in check’ under the law to guide against abuse of power. This essay would be discussing the

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Legal positivism is thus distinguished by two central claims: that law is separable from its substantive morality and that there is no necessary link between law and morality. Thus, both Hart and Austin propound that the existence of a law and our duty to obey such law, even if we dislike it are two different queries. It is often argued that legal positivism assisted in legitimizing the Nazi rule. According to Hart’s Rule of Recognition, the master test of legal validity, there must not only exist both a convergent practice among officials of applying certain criteria of legal validity in deciding which norms are laws, but also that the officials adopt an “internal point of view” towards this practice, that is, they believe they have an obligation to do

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If we are successful, the nominalist and conceptualist arguments against the reality of the laws can be considered refuted once and for

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In this era, people are living in a peaceful society which people are considered highly protected by laws. This peaceful atmosphere could be termed as the ‘Queen’s peace’. The origin of the queen’s peace is the general peace of the person’s and property protection in medieval times and transformed to the entire royal domain by the authority of the British monarch, when the monarch is a queen. The queen’s peace is vital to protect the personal property and the peace of the society which would makes people tend to live in a comfort and peaceful circumstance without people hurting or killing each other by the protection of the settlement of law. According to Uwede-Meshack (n.d.), Hart states that law is a union of primary and secondary rules.

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The analysis of the text offers the possibility to point out eight basic features which are not typical of the majority of civil law countries: 1) Criminal law is codified in one legislative act (the Criminal Code); 2) There is no concept of misdemeanor; criminal law is strictly distinguished from administrative law. It means that crime is strictly distinguished from other types of illegal behavior by the presence of a socially dangerous element; 3) There is no concept of administrative prejudice in criminal law due to the same strict distinction between criminal law and administrative law. Administrative prejudice in criminal law means that an illegal behavior is considered to be criminal when this behavior occurs within some time fixed by law after imposing an administrative sanction for the identical illegal behavior; 4)

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SYSTEM. The aim of this project was not to judge which legal system is better: civil law or common law. Each legal system may have some advantages and deficiencies which will discuss. If a foreign legal system has some advantages, why not merge them in the national legal system?

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