Legal Issues

Questions & Answers

Introduction

The paper provides answers to the questions based on legal issues that are given by John Austin and Hart.

Austin's position to defend the claim,

“A law goes unenforced in some society it is still a law”.

Austin's position to defend is weak because according to him the law is only considered positive if it is commanded by a sovereign person which is contrary to the claim. Hart criticized the doctrine of Austin based on factor of continuity through his example of Monarch Rex who got deceased and later his place was taken over by Rex II which says that there exist no option for authorization of laws of the new sovereign so no one has cultivated habit to obey Rex II after the death of Rex I. Hart said that habit for obeying law would not give the right to Rex II for ruling and validating law.

Austin Definition of Sovereign in Society

According to Austin, a sovereign is said to be the political ruler of a particular society whose rules being set are generally obeyed but he on the contrast does not have to obey others except the supreme power of God. Moreover, the rules being defined by sovereign require no ethical rationalization and they are put in power over the society at concern; the sovereign enjoys endless power and authority because according to positive law the supreme power is not bounded. Hence, sovereign rules in separation from mortality and do not need to be righteous at it which means no correlation is needed between law and mortality as proposed by theorists of natural law.

Separation Thesis

Separation Thesis administers that the two concepts are distinct; that there is no connection between mortality and law. It comprises the fundamentals of legal positivism. The thesis formulation is interprets that law is entirely free from the notion of ethics and morals (Klaus Faber, 1996). Therefore, any moral consideration that incorporates legal validity and system is contradictory to separation thesis.

Pedigree Thesis

The pedigree thesis states that law is function to social facts which mean legal validity serves to social facts which shows a general accord on the prevalence of positivist theory by Harts based on the works of Jeremy Bentham which is on the other hand is being argued by Austin that basic conflict among theories of legal system is the presence of sovereign who is obeyed by people as they have become habitual ...