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References and Further Reading 1. The Pedigree Thesis The pedigree thesis asserts that legal validity is a function of certain social facts. Borrowing heavily from Jeremy BenthamJohn Austin argues Pedigree thesis the principal Pedigree thesis feature of a legal system is the presence of a sovereign who is habitually obeyed by most people in the society, but not in the habit of obeying any determinate human superior Austinp.
On Austin's view, a rule R is legally valid that is, is a law in a society S if and only if R is commanded by the sovereign in S and is backed up with the threat of a sanction.
The severity of the threatened sanction is irrelevant; any general sovereign imperative supported by a threat of even the smallest harm is a law. Austin's command theory of law is vulnerable to a number of criticisms.
One problem is that there appears to be no identifiable sovereign in democratic societies. In the United States, for example, the ultimate political power seems to belong to the people, who elect lawmakers to represent their interests.
Elected lawmakers have the power to coerce behavior but are regarded as servants of the people and not as repositories of sovereign power. The voting population, on the other hand, seems to be the repository of ultimate political authority yet lacks the immediate power to coerce behavior.
Thus, in democracies like that of the United States, the ultimate political authority and the power to coerce behavior seem to reside in different entities. A second problem has to do with Austin's view that the sovereign lawmaking authority is incapable of legal limitation.
On Austin's view, a sovereign cannot be legally constrained because no person or body of persons can coerce herself or itself. Since constitutional provisions limit the authority of the legislative body to make laws, Austin is forced to argue that what we refer to as constitutional law is really not law at all; rather, it is principally a matter of "positive morality" Austinp.
Austin's view is difficult to reconcile with constitutional law in the United States. Courts regard the procedural and substantive provisions of the constitution as constraints on legal validity. The Supreme Court has held, for example, that "an unconstitutional act is not a law; it confers no rights; it imposes no duties; it is, in legal contemplation, as inoperative as though it had never been passed.
Shelby County, U. Moreover, these constraints purport to be legal constraints: Hart's seminal work, The Concept of Law.
Hart points out that Austin's theory provides, at best, a partial account of legal validity because it focuses on one kind of rule, namely that which requires citizens "to do or abstain from certain actions, whether they wish to or not" Hartp.
While every legal system must contain so-called primary rules that regulate citizen behavior, Hart believes a system consisting entirely of the kind of liberty restrictions found in the criminal law is, at best, a rudimentary or primitive legal system.
On Hart's view, Austin's emphasis on coercive force leads him to overlook the presence of a second kind of primary rule that confers upon citizens the power to create, modify, and extinguish rights and obligations in other persons.
As Hart points out, the rules governing the creation of contracts and wills cannot plausibly be characterized as restrictions on freedom that are backed by the threat of a sanction.
These rules empower persons to structure their legal relations within the coercive framework of the law-a feature that Hart correctly regards as one of "law's greatest contributions to social life.
But what ultimately distinguishes societies with full-blown systems of law from those with only rudimentary or primitive forms of law is that the former have, in addition to first-order primary rules, secondary meta-rules that have as their subject matter the primary rules themselves: They specify the way in which the primary rules may be conclusively ascertained, introduced, eliminated, varied, and the fact of their violation conclusively determined Hartp.
Hart distinguishes three types of secondary rules that mark the transition from primitive forms of law to full-blown legal systems: On Hart's view, then, every society with a full-blown legal system necessarily has a rule of recognition that articulates criteria for legal validity that include provisions for making, changing and adjudicating law.
Law is, to use Hart's famous phrase, "the union of primary and secondary rules" Hartp. Austin theory fails, on Hart's view, because it fails to acknowledge the importance of secondary rules in manufacturing legal validity. Hart also finds fault with Austin's view that legal obligation is essentially coercive.
According to Hart, there is no difference between the Austinian sovereign who governs by coercing behavior and the gunman who orders someone to hand over her money. In both cases, the subject can plausibly be characterized as being "obliged" to comply with the commands, but not as being "duty-bound" or "obligated" to do so Hartp.
On Hart's view, the application of coercive force alone can never give rise to an obligation-legal or otherwise.Legal Positivism Austin’s Command Theory separation thesis (“The existence of law is one thing; its merit or demerit is another”) and pedigree thesis (the legal is distinguished from the nonlegal in terms of pedigree, which for Austin is the command of the sovereign).
Hart’s Rule-Based Theory. Jurisprudence | Legal Theorists the separability thesis which denies the existence of necessary moral constrains on the content of law, The pedigree thesis which articulates necessary and sufficient conditions for legal validity in respect of how or by whom law is promulgated, the discretion thesis which asserts that judges decide hard.
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History ( Derby Results & . The Pedigree Thesis: The existence, content, and validity of the law is a function of certain social facts (the command of the sovereign, the actions of a legislature). The Separation Thesis: there is no overlap between the notions of law and morality and legal systems have their own criteria for validity.
Pedigree Thesis Legal Positivism.
Legal Positivism Internet Encyclopedia of Philosophy rules is exhaustive of 39;the law 39;, so that if But many positivists regard the discretion thesis as a nbsp; Judicial Discretion and the Concept of Law – Oxford Journals is thought to consist of three theses about the nature of law.
The pedigree thesis asserts that legal validity is a function of certain common truths. Deriving profoundly from Jeremy Bentham, John Austin [ 1 ] contends that the major characteristic feature of a legal system is the presence of a sovereign who is habitually obeyed by most people living in the society, but not in the routine of observing any .