Date Posted: 12/9/2012 7:58:49 AM
Posted By: macawear88 Membership Level: Silver Total Points: 163
Specification about the nature of law has long and complicated history; yet in retrospect it is apparent that it has centered almost continuously upon a few principal issues…they concern aspects of law which seem naturally at all times, to give rise to misunderstanding…The word law has brought about very many questions. Contrary to popular thought these questions on the paradoxical utterances were not just made by ordinary men but by great philosophers and teachers of law who made prolonged reflections and studies of law. The general question about the nature of law presupposes that the law is a unique social phenomenon, with more or less universal characteristics that can be discerned through philosophical analysis. According to Hart, few questions concerning human society have been asked with such persistence and answered by serious thinkers in so many diverse, strange and even paradoxical ways as the question what is law?”The confusion created and consequent need for greater clarity about them may therefore co-exist even in the minds of thoughtful men with firm knowledge of law. The deep perplexity that has kept alive the question is not ignorance or forgetfulness or inability to recognize the Phenomena to which the word law commonly refers.Speculation about the nature of law has a long and complicated History that has centered almost continuously upon a few principle issues which have formed a constant focus of argument and counter-argument about the nature of law. For instance, Professor Llewellyn says, “what officials do about disputes is the law itself.” The prophesies of what the courts will do are what I mean by the law” Holmes, the path of the law (1920). Statutes are sources of the law, not part of the law itself.” JC Gray, the Nature and Sources of Law. Constitutional law is the positive morality merely” John Austin, The Province of Jurisprudence Determined. One shall not steal; if somebody steals he shall be punished, if at all existent, the first norm is contained in the second norm which is the only genuine norm. So law is the primary norm which stipulates the sanction.” Hans Kelsen.General jurisprudence as this philosophical inquiry about the nature of law is called, is meant to be universal. It assumes that law possesses certain features, and it possesses them by its very nature, or essence, as law, whenever and wherever it happens to exist. However, even if there are such universal characteristics of law the reasons for a philosophical interest in elucidating them remain to be explained. Part of what is involved in the understanding of the nature of law consists in an explanation of how law differs from these similar normative domains, how it interacts with them, and whether its intelligibility depends on such other normative orders, like morality or social conventions. The question what is law brings to the fore some of these complicated issues: `is it a system of rules? Or is it combined with judicial discretion? Or is it organized public opinion? Is it an entity, a thing or even a concept at all? If not then does the question what is law make sense at law. Where does law come from? Can there be law without lawyers and judges? How do we know when a legal question has been answered correctly? What is knowledge of the law knowledge of? Should law be objective? What conditions are sufficient or necessary to make law objective? Is there really a distinct form of legal differ from politics? How do we identify a well functioning system?”What I think is the most pertinent question in all these queries is does the word law mean the same thing in all these questions and if it does not what is the range of meaning of the word? Why has the question what is law persisted for such a long time? As one writer aptly put it “those people who ask what law, what more do they want to know and what do they want to know it?As the question has pointed there’s a lot of speculation about the nature of law but some of the salient features that have been identified include:• Rules forbidding or joining certain type of behavior under penalty.• Rules requiring people to compensate those they injure in certain ways.• Rules specifying what must be done to make wills contracts or other arrangements which confers rights and creates obligations.• Courts determine what rules are and when they have been broken they fix the punishment or compensation.• A legislature to make new rules, repeal some amend others and abolish the old ones.Although these are the salient features of law controversy still brews over the degree of importance to attach to these features or even the question of whether these features are supposed to be included in the definition of law. The reasons for these variations in definition and the persistence of these controversies are:1. How law differs from and how it’s related to orders backed by threats.An order backed by threats is also referred as the “key science of jurisprudence” The existence of law means that certain kinds of human conduct are no longer optional but in some sense obligatory. Where one is obliged to comply with a certain rule therein lies the essence of law. Such kinds of obligations are mostly found I peal statutes which declare certain conducts and specifying the punishments to which the offender is liable.2. How does legal obligations differ and how is it related to moral obligationMoral conduct is not optional but obligatory. A moral rule imposes obligations and withdraws certain areas of conduct from the option of the individual to do as he likes. Legal systems contain obviously elements closely connected with certain aspect of morality. There’s the difficulty of identifying precisely the relationship between legality and morality and very big temptation of seeing the connection as identity.
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