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Judges as Lawmakers: Harts Rule of Recognition - Essay Example

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This essay "Judges as Lawmakers: Hart’s Rule of Recognition" analyzes Hart’s rule of recognition which allows flexibility of judicial interpretation within the framework of social rules.  …
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Judges as Lawmakers: Harts Rule of Recognition
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Download file to see previous pages Kelsen is of the view that the ability of the law to use the threat of violence where necessary and impose its rules through its coercive nature is its most important aspect4. Therefore, under such a coercive framework, the scope for judicial interpretation may be seen to be limited, posing the question of whether true justice may be served through rigid adherence to rules laid down by the sovereign and through social norms. Hart fiercely opposes the predictive interpretation of law based upon its coercive aspect on the grounds that such interpretation “obscures the fact that, where rules exist, deviations from them are not merely grounds for a prediction that hostile reactions will follow.... but are also a reason or justification for such reaction and for applying the sanctions.”5
Raz emphasizes the social learning aspect of conforming to rules, applying a test of behavioral guidance to determine that a person could have come to accept the rules without actually deciding to do so, or questioning the original justification for the rule itself.6 According to Hart, a full-blown system of law must be equipped with more than mere rules, since these are only “concerned with the actions that individuals must or must not do”, while secondary meta-rules that have the primary rules as their subject matter help to “specify the way in which the primary rules may be conclusively ascertained, introduced, eliminated, varied, and the fact of their violation conclusively determined.”7 Thus, while primary rules spell out the obligations of the individual, secondary rules help courts to resolve disputes over the application and interpretation of those primary rules and may, therefore, be classified as rules of recognition. ...Download file to see next pagesRead More
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