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    HArt Ch 5

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    5 views11 pages

    HArt CH 5

    Uploaded by

    Abry Anthraper

    Copyright:

    © All Rights Reserved
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    * SOVEREIGN AND SUBJECT power as comple in its manuer of exercie as that in the Tinted States eonsition, maybe a poor sig of the wishes ffthe electorate though alten & eile sign ote ignorance tnd inference. We area long wa indeed fom the general who may, perhaps plauaby, be considered tacly to have ‘rdered his mea todo what be knows the sergeant tls hem to-do ‘Again, what are we to say, inthe terms ofthe theory, i there are some restrictions on the lgiature which are alte ether utaide the scope of the amending power entrurted {0 the electorate? The not merely concervabe but actully 5s the postion in some cases. Here the electorate is subject {© legal Tinitaons, and thoogh Ht may be called an extra frdimary legate ite not fee om legal limitation and $0 i nt sovereign. Are we to say here that the sci at a ‘whole i sovereign and thee legal lniations have been tacihy lrdered by i since i ha filed to revole against then? That this would make the datinction between revoutien and lege ‘sation untenable i perhape a slicentreasoa fr rejesting Finally, he theory treating the electorate as sovereign on provider 3 the beat fr lipited legislature nm democracy tere an electorate exist. Vet there Is no absurdity fn the Motion ofan hereditary monarch Tike Rex enjoying Bmited Iegitaive powers which are both Kinited and sapreme within "7 LAW AS THE UNION OF PRIMARY AND SECONDARY RUL 1 the las thre chapters we have se tht, at various eru- ‘ial points the simple model of law asthe sverega's coer ive orders aed (a seproduce some ofthe salient ferutes. af Tegal sytem. Te demonstrate this, we cid ot Bnd it nee ‘Gary Tetavote (ar carer critics bave done) international law or primitive law which some may regard ax spate or bordedine examples of law; instead we pointed to certain familiar features of municjpal law in’ modern state, and showed that thse were either ditored or altogether Une Fesented in this versimple theory “The main ways in which the theory filed are inetrctve eoough to ment a second summary. Fit it beeape clear that though ofall the varies of law, criminal statute, Torbidding or enjoining certain actions under penalty, most resembles orders backed by threats given by ane perio to ‘others, auch a fatite none the lee dirs ftom such orders inthe impertant respect that i€ commonly applies to thse ‘who enact it and not merely to others. Secondly. chen are other varieties of law, notably those conferring legal-powert {eradjudicate or leglste [public power) orto crete or vary Tegal sclatons (private powers) which cannet, without abe surdiy, be construed as orders backed by threats, Thirdly, there are legal rules which dle fom orders in theic mode of origin, because they are not brought into being by anything Snalogous ta explict prescription. Finally, she analysis of law in terms ofthe sovesign, habitually obeyed and necesrarily exempt fom all legal limitation, failed to account for the continuity of legislative authority sfiactevsie of & modern legal sytem, and the sovereign person or persons could not be identified with either the electorate or the legislate of modern site el he ead ta in sh ring he option law ithe soversghs coerce ders we considered lon = ttmber af acl devices which were brought inthe Gt teorrupting the prinitive spit ofthe theory to rescue itirom its ticaler But these oo fale. One device the tion ofa fat! order, seemed to have no application tothe comple acusities fa modern legal sytesn bi only 0 very ‘ch simple situations bike tht ofa general who delberately Tetaio fom ntrering with ode gen by hn boroaen, ther device, such sn that of eating powerconfering les ‘ss mere agents oles imposing dite, on eating al ues 4 directed ony to ofc, dstort the ways which these sre spoken of, ought oy and actualy wed in tcial ie Ti Red ne beter Cain four arent than the doy that allthe ule of game are ‘realy directions tothe umpire snd the sore. The device designed to reconcile the self binding tharacter of legslation wih the theory that statue I an order given to, was to datngush che legisators acing in thelial eapacity, as one person ordering ater whe include Checnlee in thir fate capac THE device, mpece ble in Suef, tvolved supplementing the theory with ome: {hing does nox consi thr the notion a's ule defn hat must be done to legislate; fori sony i conforming Seth sch ari tha legiators have anol espacty snd 2teparate personality to be contrased with themselves ove indian The lat hse chapters are therefore the record of fire and there is plainly need fr aes start. Yet the Gaur i rem enone a rch pnt where the tory failed to Bt {he facts it was pose to ace at east in outline why He vas ‘ound to fll and what i required for a beter account. The root case of lie tha te element os of which the Thesy ws constructed, ve Soon des, abedroe wy his, an threats, do notialude, and canst by thee com V// atom veld, the tea of rule, without which we emt hope to eluidate even the most elementary forts of law. Bt istrue that the idea orale thy no meaor simple one: we have already seen in Chapter I the need, if we are t0 do justice the comply ofa legal system, to diseriminate the one type, which may well be considered the baw or ‘xingush oF medi old ones, or la various ways deters ‘in ineidence or contol their operations ay given some preliminary analysis of what is volved in the anserion tht rues af these te types cast sming a given social group, and inthis chapter we Shall at aly ary hi naa heater bute shal make de feneral cai that im the combination of these two types of ule there Hes what Austin eongly claimed fo have fot i the notion af coreive order nay, the key to the acener of jurisprudence. We shall not indeed claim that wherever the word laws propeny aed this combiration of primary and secondary tues fs t0 be found: fort clear tha the Giverse range of eats of which the word Tow is ued ate not linked by'any such simple uniformity, but by less dzet felations—often of analogy of ether form or eontent-rto 3 (Gata ease |What we shall attempt to show, in tha aad Te sceeding chapter that st ofc fests fie ‘whith have proved mon perplexing and have both provoked sd elude he search for dfiaiton can best be rendered lear these two types of vale andthe interplay beeen ‘hem age understood: We accord this usin of elements & ‘ental place because oftheir explanatory power in elucidating the concepts that constute the framework of legal though ‘The jastiaton for the ve ofthe word law’ a range of apparently heterogeneous case ina secondary itr which th be undertaken when the central slemcht ace been ase, fe: 1 wl be called hat se hry ow a cmv rer notwithstanding fs eror, started from the perety orth Sppreiation of the fc that Meee here ea, there homan ehvt i made in sone sen non-ptional or obligatory. In ‘Trting Wik arog point the theory was wel napred, and Inbulding wp new account ftw to tra af the interplay of primary and secondary rules we too shall tat Grom the Same ide Tei, however, Nee, a ths eral fist sep chat ‘Mr have pethape mow to earn fom the theory error. ‘Let usrceal the gunman nation, A orders B to hand ‘omply. According to the teary of coereive orders ths str ston lneteater the nation of obligation or dty im general egal obligation is tobe found inthis scwation wrt large: A thust be the sovereign habitually obeyed and the orders must The pausbity of the clam thatthe gunman situation Dliys the mearing of obligation is inthe fact that ts eer inl one in whieh we would sy that B, if he obeyed, was ‘abliged to hand over his money. Tt, however, equally Certain that we shold misdesribe the sitation swe sa, oh thes facts, that B had an obligation” o duty To and over the money, So fom the stati lear that we need some {hing elie ran understanding ofthe Wea of ebigaon. There fealference, yet to be explained, between the assertion that fomeone wes eliged todo something andthe asetion that he fed on oligo to dot. The fat often a sateent abot the beliefs snd snotives with which an action jr done! B wae ‘bliged to hand over bis money may simply mean, st does th de gunman cas, tht he belived that some hares or oer tnplearant consequences would bef i ihe didnot hand itover and he handed i yer to avoid those consequences. In Sich caves the prospect of what would happen to the agent i In iseyed has rendered something he would otherwise have Preferred to have done (keep the money) let elle Two farther clement sight compliate the elucidation of the notion of being obliged to do someting. T atems cleat thar we should not thiak of Bas obliged to hand over the money ifthe threatened harm was, acording to common PRIMARY AND SECONDARY RULES ts judgment, iva in comparizon with the dadvacage or Ferious consequence, er fr Boy fc tesa a complying wih the order would be, Or example, A eee threatened to piachB: Nor perhaps should we say tat Bers colgd there mere no resonable grounds for tanking he ‘Revald or would probebly implene hi these elavey Serious har, Yeu though such rerencr to common je, iments of comparative ham and rearoable estimates of ie ‘hood, are impli in thi toon the tatement hat a perso was alged th abey somcnne inthe main pycholopeat See refering tothe Ue ad hotves with wget an so srs done. Bu the atrent tha wrcon Rd on bigtie SSrsometing isos very dierent type an there ae many Sigs ofthis rence: os nt ony he cae thatthe ihets about B's scton snd his bes and motives the funman case, though siento ware the sateen hat Bas obliged to handover oe pure, are se feed to serra thesateme that he hod obligation to do atu the cane tht fats of thin sor, 1 fats aout bie And motives, arent may forthe truth of statement tat a'peion had a obigaion todo someting, Th te sae, due tha pnon bd wn oan, eg el Re ah ok ‘por fbr many server, remains tue cenit be belived (reasonably oF uatesonay tat be wool never be ound ut and had nothing to kar Io sbedience, Moreover, sthereas the: statment that be fad thi obligation gute independent atthe question whether or mothe nt epred Ter sevice the statment dat someone was obliged oda something, normally cries the Soplcnton that he actually aa Some theorists, Austin among them, seeing perhaps the general ielevance of he pesos belie, far, dives tS the question whether he had an oblatan to do some. thing, have defied this notion notin tema ofthe sje the face, but fn terms ofthe chao eed alte person having he obligation il sue punishment ov Cie hands of her inthe event of diobedince Thin fe, gents sacements of cbigaton neta pyle Statements but as prdictont-or-marinments Of chance af, itcurng pnshient or “eu To many iter thera hr 6 LAW AS THE UNION OF has appeared a a revelation, bringing down to earth an el {he ntin and restating tthe sume ele, ards empl {cian ave sedi scence. Ie har, indeed, een accepted ‘Sncines the only alternative to metaphyseal cone> tone of blgation or duty as invicble objects mysteriously xing above or “behing! the world of ordinary, ebservable fet, Hut there are many reasons for rejecting his iterpre= {ation of statements of blgation as prditions, and its mo infact the only alternate to obscire metaphic “The fandamenal objection j chapter. Tie howeves rie were trve thatthe Statement that a person had sn obligation meant tha he was Lely to suffer in the event af diedience, it would be ontraiction to ay that he had an obligation, eto report for miliary service but tha, owing tothe fact that be had ‘seaped from the jurisdiction, or had sacessally bribed the police or the court, there was ot the tightest chance of his ‘ing caught or mace to salfer Tn ac, Usere i no contradic tion in saying this, and such statements aye offen made and Understood, tis of course trae that in a normal legal sytem, where sanctions are ected for high proportion of fences a ‘Mlender unually rans risk of pmishment so usually the atemene that person fs. an obligation and the statement, {hace isikely to sulle for dasbedience will both be tae to- [tthe. Inder, the connection between these two statements ‘Stomewhac stonger than ths: atleast n'a mimicpal sytem it may well be tue that unless i gral tations were key to be exacted fom offenders, there would be ie oF no point in making paricalar statements about a person's obligations In thie seme, such statements may be said to presuppose sed Nate aan cnt tea aes PVE G3 sur GE tel in the continsedormal operation ofthe system of Sincione much ar the snemen gi out in eet pee poses, though it doesnot ase a payer, pie, [bre will prbably take the usual stepe None the Tees Gta te nderstancing ofthe tee a signin foe that in ladda ees the Hecht o pha eblgaon une some ruled the prediction te he i ily tosis for deobedience aay disae” 11k clear that og oe fob fund in he gunman statin, though the tinpler noon af beg sg we do {Srmhins moy ell be dled the element present tee To anietand the genres ofobiguion 2 neeaary prelminary to eadlvanding isa! fre we mes Ems itz cil stosion wh elite he forma Sune, inca: the exense ose fr tis Se Sion concesto the meaning othe watemont hat per {nas an olan in wo woe, Fin he susgnes fs fol, waking Sertain types of feb sacaiadete Erma tough saniod bckeuid gr npr out fecha uaceeat ond condi de diag haa eh eavemen ie aggply chs graseton ta pel Boon by cling sil sabe Latta cae oer FWe have aretiy vena Chapter TV that te ioe fhe extents of any well ees douon acu conduct wih dsnetive ase Dba conduscan 9 an a. Webave assem he main ways nek thse ie ith mere noc abit and haw the varied ‘ovate tocabulty (cogh’ ms shoul) ised ose tention to die Madan and to deviations fori, tnd to formate the demande icy or accwieigements which ay te bed ic OF thts of mrmathe words te woah “Sbigaon and uy" for an importa subs, arying wittiem cxrin tapliatons tar uml presen’ Ge tthe Hence, though a grasp of the clenent general Se fcreniating tea kes fone habia cay ede feomble fr enderatading the noon of obligation or ty, ‘The statement that someone has or if uncer an obligation oct ndcd ply the caterer yr tu soe theca tat ere rues en the andar af Behavior required by them is conceived of in terme of obligation. “He fought to have" and “He had an obligation are not always Interchangeable expressions, ven though they are alike in Carrying am implicit reference to exiting standards of com duce or afe used in draving conclusions in paveular casts From s general role, Roles of etqutte or correce speech ate Eertanly les they are more than convergent habit or cegir lanes of behavior, they are taught and efforts are made to ‘maintain them; they ar ted in enticining our ovm and other people's behaviour in the characteratie- normative vocab. | Far, “You ough o take your hat of Tes wrong to x29 "you i swat". But to te in connection with rules of this kind the teorde“ablgaton’ or ‘duty would be misleading and. not 1 Imerely styintially edd. Te would minderribe a stil sia: tion for though the line separating rules of bligaton fom others is at pains a vage one, ye the main rationale of the “Sstinetion fe firly clear Teles are conceived and spoken of at impoting cbligations nthe general demand for conformity is inastent and the preture brought to besr upon those who deviate or eaten to deviates great. Such rules may be wholly eae tomaryin origins there may be no centrally argenaed yatem ‘of punishments for breach of the rule, the social pressure tay take only the form af general deed hostile of eid Feacdon which may stop shor of physical sanctions, It may be limited to verbal manifertations of disapproval or of appeals tothe individuals’ respect for the ule violated: it may ‘depen heavily on the operation of flings of shames remorse abd guilt When the presure i of this Iatementned ind Wwe may be inline! tasty che rules as part ofthe nor SF the socal group and the obligation Under the rales at moral bligadoa} Conversely, when physical sanctions are Prominent or usdal among the fore of pressure, eventhough these are either closely defined nor administered by afals bat are lett the commnty at lange, we abal be incned to Classy the rules at primitive or rudimentary form of lw ‘We may. of course, Bnd both these types of serious social prestre behind what nan abwiou sense the same ole St eonduct sometimes his may acear with no indication that fne of them in peeaarly appropriate as primary and, the ‘ther secondary, and then the question whether we are con fronted with arule of moray or rudimentary law may not bestncepible of an answer, Bu for the momen he posi fy of drawing the line beeween law and morals need not

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