Social and moral considerations may set limits on a rule of recognition at the time of acceptance. The same rule can create a power plus a duty to exercise it, or a power plus a duty not to exercise it.According to Dias, Hart’s avowed positivism in relation to his concept of law is open to criticism. We spent a lot of time talking about the paragraph on the top of p. 12 because it is very hard to understand. Modern legal scholars began to exploit a comparison between the constitution and "natural law" or "natural rights. Utilitarians like Bentham have to say that the desirable consequences of punishment are sufficient to show that it is justified (permitted, just, acceptable, etc.). “Prolegomenon to the Principles of Punishment.” Proceedings of the Aristotelian Society, New series, 60: 1–26. Law is a complex, authoritative social decision process--a procedure for resolving disputes.� Hart makes a distinction like that of Kelsen, between the "existence" of a basic norm and the validity of laws following from it.� Like Kelsen, he has trouble explicating the normative force of the secondary rules.� Hart has recourse to an "internal-external" analysis. It is inflicted only on those who are guilty of violating the law. However, should the state punish people anyway, the retributivist’s standard for the distribution of punishment is still relevant. Hart, H. L. A. "� Hart's explicit motive is explanatory rather than logical. Kelsen started his pure theory with certain premises. Mixed theories hold that punishment is just only if two conditions are met: Bentham and Kant offer purified theories that rely only on the desirable consequences of punishment or retribution for wrongdoing. The researcher assumed that primary and secondary rules are totally different which proved to be absolutely right and the researcher also assumed that the theory of Hart was accepted by the other jurists, but many jurists have criticized it and given totally different opinions which can be read in the conclusion.--------------------------------------------------------------------------------[1] Avtar Singh & Harpreet Kaur, Introduction to Jurisprudence, (Nagpur: Lexis Nexis Butterworths Wadhwa), 3rd Edition, p1[2] Ibid. He sees them as answers to different questions about punishment. Recently, Ronald Dworkin has offered what has been called a third theory of law, that is, a theory of law which is neither natural law nor legal positivism. Kelsen's basic norm is mainly a procedural one.� Any content requirement, he says, begins to look too much like it blurs the boundary between moral and legal systems of prescription.�, H. L. A. Hart is a "giant" of Anglo-English legal theory.� He follows Kelsen quite naturally though I do not remember Hart giving Kelsen much notice or credit. The problem with each one is the sufficient condition for punishment. That a secondary rule is accepted is an external, descriptive fact. Hart's theory seemed for a while to have solved the "concept" of law. Kant’s idea that guilt is a sufficient reason for punishment also gives rise to trouble. This is shown by the fact that we attach importance to the restrictive principle that only offenders may be punished even where breach of this law might not be thought immoral: indeed even where the laws themselves are hideously immoral as in Nazi Germany, e.g., forbidding activities (helping the sick or destitute of some racial group) which might be thought morally obligatory, the absence of the principle restricting punishment to the offender would be a further special iniquity; whereas admission of this principle would represent some residual respect for justice though in the administration of morally bad laws.” (1959, 12). Hart wants to revive the mixed theories. The revolt was strongest in the United States where the Supreme Court had evolved the power to declare legislation "unconstitutional." Hart's main development beyond Kelsen is to transform Kelsen's basic norm into a more complex analysis of law that distinguishes two kinds of "rules. According to him, a theory of law must hold good at all times in all places. He concluded that the reason for excuses must be based on principles of justice that have nothing to do with producing good consequences. Hart does address these questions when other scholars start questioning legal positivism. Here it is, “Similarly the moral importance of the restriction of punishment to the offender cannot be explained as merely a consequence of the principle that the General Justifying Aim is Retribution for immorality involved in breaking the law. He worked in the style of British "ordinary language analysis" and examined and clarified a host of other legal concepts-many of which we will address in the latter portions of the course. 3. Killing is usually wrong but, in this kind of case, it is not.). The weakness in theory of adjudication (and controversy) was the point of attack from the realists. Outside (from the point of view of the sociologist) is only descriptive fact. They are relevant to the distribution of punishment: we excuse those who are mentally incompetent or who act in ignorance, even though what they did was wrong. This power broadened after the civil war and sadly long after the bill of rights had been added. The same can be roughly summarized as follows: 1. As I understand it, what Hart was saying was that the retributivist’s answer to the question about the distribution of punishment is independent of the retributivist’s answer to the question about the general justifying aim of punishment. Hart is a positivist but a particularly good one in that he soundly criticizes earlier positive theory.


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