Jurisprudence Law and Legal System - Essay Example

? Jurisprudence Law Jurisprudence Law Positive law makes a remarkable different approach from the moral necessity law concept. The law should not be a demonstration of internal and external imperatives that should be obeyed, flowing as it does from philosophical and metaphysical essences and urgencies. Law is a social fact and the legal order is different from ethics perplexities. Positive law rests on the conditions of action, command, and sovereignty. This implies that contraventions of commands issued by those in political power is an infraction thereof and allows punishment. The law should be generally found on the established legislative pronouncement. The task of lawyers and judges thus is to apply positive law. They need not concern themselves with the question of whether law is just or unjust. The law is thus what the court says it is and statutes such as usages and customs are not the foundation of law. Lawyers and judges put life into the dead words of the laws. Their articulated intentions and feelings should not be ignored. There should be separation of legal validity matters from morality questions because what the law should be does not have anything to do with what the law says1. There are no universal facts or objectives about morality and about the way the law should be like; for this reason there is only positive law, which should be applied by judges and lawyers2. According to Green, a society normally has a legal system if there are certain governance structures and not the extent to which it fulfills the justice ideals, the rule of law, or democracy3. The laws that operate in any society depend on the social standards that those in power deem as authoritative, for instance judicial decisions or legislative enactments. The question of whether law is just or unjust should not concern lawyers and judges because any law is a matter of what that a society has posited- decided, ordered, tolerated, and practiced. This checks possible conflict between successive norms and concurrent rule (s) and the law or laws basis in certainty so that it tends to link the authority to create a law(s) to the authority to put an end to a law. Legal validity is dependent on origins of authority and thus the concern of lawyers and judges should be whether a law is just or unjust. The law concept has to offer an account of the most essential or important aspects of a legal system and also accounts for the laws normativity4. It is important to establish the indispensable aspects of law so that it is possible to differentiate the legal and non-legal and also the legal validity and the legal invalidity. The law is widely known as a social institution that influences the realistic reasoning of agents. Social facts are a matter of what is considered as law and what is not considered as law; as a result we can determine the validity of the law by referring to social sources as opposed to moral evaluation. Law is not essentially obligatory because of its morality validity. Judges and lawyers should not bother with the question if a law is just or not but if there is any law of a particular issue. The law has particular features, and it have them because of its very essence or nature as law wherever and whenever it is established5. The law is a normative social practice because it asserts to direct human actions, bringing about a reasons for taking action. There is need to comprehend the general circumstances that would render all types of accepted norm legally valid. Judges and lawyers should consider the source of the norm as well as the matter of the content of the norm(s). This entails the general question on the legal validity conditions. Second, the normative feature of the law should also interest the lawyers and judges. Each legal norm has to be composed of a threat supported by sanctions. This takes in two different claims. To begin with, a law should be normative and norms, which are supported by sanctions of the political autonomy. Second, the close interrelatedness between the law and threat of imposing sanctions is a thesis about the law’s normativity. From the moral perspective, we cannot take the recognition rules in themselves as basis for requirement to follow the law. The law is an institutionalized normative system, which is upheld by an agreement among the officials (judges and lawyers) who apply the rules and who are in a manner differentiated from the normal workings of value and reason. Alternatively judges and lawyers legal principles acquire their authority from a combination of content-based or source- based considerations. Laws are integrity law propositions, which are true if they follow if figure in from the principles of fairness, justice, and the due process of process, which offers the best productive explanation of a community legal practice6. Scholars define law as the sovereigns command supported by sanctions. According to Austin, the law is a command species whereas a command is an expression or intimation of a forbear or wish to carry out something, which is supported by the capacity to harm the actor(s) in case they disobey7. Because the judges and lawyers issue commands, they have the capacity to impose actions and the person to whom the command is directed has the duty to obey or face sanctions. Nonetheless, Hart argued that the notion that the law comprises of orders supported by threats is not enough to explicate the contemporary legal systems. The contemporary legal systems have laws that govern the formation as well as execution of wills and contracts8. Hart referred to these laws as power bestowing rules. He further argued that the rules create a structure within which people can describe the range and limit of their liabilities, obligations, and rights. Hart also considered another type of laws, those that define the range and drawbacks of legislative and judicial power, laws that bestow authority upon courts and manage the running of government institution9. This showed that it was impossible to take these rules as just orders supported by threats. There have been attempts to incorporate power bestowing rules in the broad ambit orders supported by threats. Nonetheless, Hart argued that the two are essentially, unlike in a criminal statute and this is more of an order supported by threats as the sanction in essentially consequent upon the prohibited action. It is possible, for example, to consider an order that does not allow something without applying a sanction. Alternatively in the case of power-bestowing rules, the provision for nullity is usually part of the rule in itself. Harts position to understand that his idea of endorsement of acceptance of a rule by judges and lawyers do not entail a moral approval of it. A man may take a rule to be justified morally and for this reason he may endorse it10. However, equally a man may give his backing to a rule and follow it for a reason or no reason. Judges and lawyers are regularly involved in applying and enforcing the law does acknowledge and apply it. They thus need not concern themselves with the question of whether law is just or unjust. They may have hesitations regarding the law moral justifiability but nonetheless they accept it and follow it on personal grounds (social movement and salaries among other factors) or for no reason at all. Hart maintained that a judge in any case halfheartedly accepts the recognition rule. Such a judge simply weakly accepts it and pretends that he totally approves it. This shows that the judges’ statements are usually entirely normative. The judges’ legal statements normally reveal this attitude. They are internally entirely committed normative statements. They normally state the rule’s legal validity and thus emphasize its binding force, although not essentially its moral strength11. A legal system is normally in force in a certain society only if the system officials and many other persons in the community accepts its law and follows them, such as approval being typically evidenced by use of internal statements. Hart’s disparity between internal and external statements tends to hide the being of a third kind of statements12. Kelsen discovered the statements existence because it is important for each person holding his outlook on the implication of validity and rebuffing natural law simultaneously13. This shows that internal statements are a feature of the judge and of the law abiding subjects and hence this statement also characterizes lawyer and law teachers as he or she often make external and internal statements. The lawyers and law instructors are not mostly concerned in applying the law to others and to themselves however they warn others of what they should do in accordance to the law. Judges and Lawyers use normative language when explaining the law and often make legal statements without endorsing the moral authority of the law. Judges and lawyers advise and inform people in their normative situation in contexts, and this makes it clear that the information or advice is given from a certain perspective or on the basis on particular assumptions, which the speaker do not essentially share. Kelsen argued that much of the discourse regarding the law falls into what she called ‘statement from a point of view’14. This is particularly factual of legal statements by judges and lawyers who act in their professional competence. The judges and lawyers may believe or fail to believe in the law’s moral authenticity. Their clients also may not believe or share such beliefs. In positive law, the law is basically a kind of social organization15. This indicates that the law can have one indispensable property. Identifying a law as well as the rights and duties positive laws that arise from it is an issue of social fact16. The capacity of judges and lawyers to not concern themselves with whether a law is just or not shows that there is a chance of making legal statements’ by the judges and lawyers without developing a commitment to the statements validation. It is possible that such legal statements carry a commitment however most judges and lawyers may opt not to have any obligation toward them. Lawyers need not concern themselves with the question of whether law is just or unjust because if the law is in force held so by the followers, or clients, and they are usually ready to make completely committed legal statements. In positive law, the law presents itself as warranted and calls for the allegiance and obedience of the subjects. Judges application of positive law has a purely declaratory character but their application of principles of equity or justice has a constitutive character. In opting to decide a case by applying positive law, a judge does not create an obligation and a matching right that was not in existence nor does he put an end to an obligation as well as the corresponding right, which existed before formulating the decision17. The task of lawyers and judges thus is to apply positive law. They need not concern themselves with the question of whether law is just or unjust. Judges and lawyers make legal statements’ without having a commitment to the statements validation. By doing this, the judges, and lawyers are applying positive law. References Austin, J., 1832, The Province of Jurisprudence Determined, London: Weidenfeld & Nicolson, 1954. Dorkwin , R. Laws Empire. Belknap Press of Harvard University Press, 1986 Fuller, L. The Morality of Law, New Haven: Yale University Press, 1964.  Fuller, L. The Principles of Social Order. N.C.: Duke University Press, 1981 Gardner, J. “Legal Positivism: 5 ? Myths.” American Journal of Jurisprudence 46 (2001): 199- 227. Green, L. “Positivism and Conventionalism”, Canadian Journal of Law and Jurisprudence, 12(1999): pp. 35-52. Greene, L., "Legal Positivism" in the Stanford Encyclopedia of Jurisprudence Read More