scholarly journals SOURCES OF DOUBT, SOURCES OF DUTY: HLA HART ON INTERNATIONAL LAW

2005 ◽  
Vol 10 (2) ◽  
pp. 698 ◽  
Author(s):  
JOHN MORSS
Keyword(s):  
International Law ◽  
Critical Analysis ◽  
Title Page ◽  
General Analysis ◽  
State Sovereignty ◽  
Legal Obligation ◽  
The Concept Of Law ◽  
Concept Of Law

<div class="page" title="Page 1"><div class="layoutArea"><div class="column"><p><span>[</span><span>In many ways HLA Hart’s critical analysis of the concept of law, with its repudiation of simple command theories of legal obligation, is at the same time a critique of the notion of state sovereignty. It is therefore an adumbration, if no more, of a radical reconceptualisation of interna- tional law, one which redefines the distinction between municipal and in- ternational jurisdiction. This paper is an exploration of what Hart could or ‘should’ have said about international law, based as much as possible on what he did say about international law and law in general. After some introductory comments it outlines Hart’s general analysis of law, with particular reference to the relevance for our understanding of inter- national law.</span><span>] </span></p></div></div></div>

scholarly journals The legal consequences of jus cogens and the individuation of norms

2020 ◽  
Vol 33 (4) ◽  
pp. 893-909
Author(s):  
Ulf Linderfalk
Keyword(s):  
International Law ◽  
General Assumption ◽  
Legal Decisions ◽  
International Crimes ◽  
Judicial Proceedings ◽  
Legal Positivist ◽  
The Concept Of Law ◽  
Jus Cogens ◽  
Legal Consequences ◽  
Concept Of Law

AbstractInternational law ascribes to the conferral of a jus cogens status on a norm a particular legal significance. Bluntly put, jus cogens norms have legal consequences that norms of ordinary international law do not. International lawyers have a great many different ideas of what these legal consequences are more precisely. As of yet, the reason for this divide has not been fully clarified. This void tends to confuse jus cogens discourse on several issues such as the immunity of states and state officials in judicial proceedings originating in the violation of jus cogens norms, or the extradition of alleged perpetrators of international crimes, or again the non-applicability of amnesty laws concerning such crimes. It also impedes the justification of judicial and other legal decisions.As this article argues, contrary to the general assumption, a lawyer’s conception of the legal consequences of jus cogens is not theory-neutral but dependent on his or her preferred understanding of the concept of law. The argument goes briefly as follows: (i) What causes international lawyers to disagree is the issue of whether or not jus cogens norms entail obligations concerned with their own enforcement; (ii) this is essentially an issue concerning the individuation of norms; (iii) depending on whether a lawyer takes the position of a legal positivist or a legal idealist, he or she uses different criteria for the individuation of jus cogens norms; and (iv) this is why, for legal idealists, jus cogens norms entail obligations concerned with their own enforcement, whereas for legal positivists they do not.

scholarly journals The Question To Be Faced Is One of Fact: H.L.A. Hart’s Legal Theory Through His View of International Law

2021 ◽  
pp. 1-13
Author(s):  
Giovanni Bisogni
Keyword(s):  
International Law ◽  
Legal System ◽  
Legal Theory ◽  
Borderline Case ◽  
Borderline Cases ◽  
Central Case ◽  
The Concept Of Law ◽  
Domestic Law ◽  
Concept Of Law

H.L.A. Hart says that The Concept of Law is focused on municipal or domestic law because that is the “central case”1 for the usage of the word ‘law.’ At the beginning of the book he states that “at various points in this book the reader will find discussions of the borderline cases where legal theorists have felt doubts about the application of the expression ‘law’ or ‘legal system,’ but the suggested resolution of these doubts, which he will also find here, is only a secondary concern of the book.”2 Yet among those borderline cases there is one that is rather intriguing, since Hart closely discusses a particular instance of them: it is international law, to which he devotes an entire chapter—the final one—of The Concept of Law. My goal in this article is therefore to make clear why the ‘resolution’ of the borderline case of international law is not entirely ‘secondary’ to Hart’s overall project in The Concept of Law and, in so doing, to show that Chapter X is not as unhappy as many think it is.

IS AUSTIN'S THEORY INCONGRUENT WITH EXISTING CONCEPTS OF SOVEREIGN AND DISPUTE SETTLEMENT IN TREATIES AND INDIAN LEGISLATION?

2021 ◽  
pp. 47-49
Author(s):  
Sanjith Chandrashekar
Keyword(s):  
International Law ◽  
Legal System ◽  
Dispute Settlement ◽  
Legal Issues ◽  
Legal Systems ◽  
Treaty Law ◽  
The Concept Of Law ◽  
John Austin ◽  
Concept Of Law

For his bold declaration that international law is not "true law" since there is no sovereign, John Austin has been extensively attacked and praised in equal measure. According to Austin, the concept of law is, “Law is a command of the sovereign backed by a sanction.” This study investigates Austin's viewpoint and evaluates it in light of current legal systems, present international law, modern Indian laws, and the analysis of legal issues in the treaty law. While Austin's viewpoint was correct in terms of the legal systems of his day, it cannot be applied to the current international, and Indian legal system

Social Rules at the Foundations of Law

2011 ◽  
Author(s):  
Andrei Marmor
Keyword(s):  
Nineteenth Century ◽  
Twentieth Century ◽  
Legal Philosophy ◽  
State Sovereignty ◽  
Modern State ◽  
Social Rules ◽  
Political Sovereignty ◽  
Legal Positivist ◽  
The Concept Of Law ◽  
Concept Of Law

This chapter presents some of H. L. A. Hart's main contributions to legal philosophy. Hart's The Concept of Law is widely regarded as the single most important contribution to legal philosophy in the twentieth century. It shows that Hart's theory is the most consistent and sustained attempt to develop a detachment view of law and legal philosophy, and one that is thoroughly reductive. The chapter introduces another separation, or detachment, that Hart's theory attempted, and one that is less successful: the detachment of law from state sovereignty. The legal positivist tradition, from Hobbes to the main positivists of the nineteenth century, conceived of law as the instrument of political sovereignty, largely influenced by the emergence of the modern state. Hart tried to show that this identification of law with state sovereignty is profoundly misguided; law is independently grounded on social rules, not on political sovereignty. It is argued that Hart's attempt to separate our understanding of law from the concept of sovereignty is only partly successful.

2 The Law of the Arbitration

2015 ◽  
Author(s):  
Kaufmann-Kohler Gabrielle ◽  
Rigozzi Antonio
Keyword(s):  
International Law ◽  
Private International Law ◽  
Scope Of Application ◽  
The Law ◽  
The Concept Of Law ◽  
Selection Of ◽  
Concept Of Law

This second chapter starts by clarifying the concept of ‘law of the arbitration’ or lex arbitri, underscoring that any arbitration needs to be governed by a national law of arbitration. The chapter then examines how to determine the national arbitration law that governs a specific arbitration by analysing the scope of application of the national arbitration law, especially Chapter 12 of the Private International Law Act (PILA), and distinguishing between international and domestic arbitrations. In this context, the chapter addresses the legal significance the seat of the arbitration, the practical considerations that should guide the selection of the seat, as well as the possibility for parties to arbitrations seated in Switzerland to opt in or out of the (international or domestic) regime governing the arbitration. Finally, the chapter describes the main features of national arbitration laws using Chapter 12 PILA as an example.

Historical and legal basis of animal rights

ANCIENT LAND ◽  
2021 ◽  
Vol 03 (03) ◽  
pp. 12-14
Author(s):  
Fidan Vahid qızı Nuri ◽  
Keyword(s):  
Key Words ◽  
Animal Rights ◽  
Legal Obligation ◽  
Legal Basis ◽  
Living Thing ◽  
Human Animal ◽  
The Concept Of Law ◽  
The Cost ◽  
Cruelty To Animals ◽  
Concept Of Law

As we know, animals take care of each other without any legal obligation and, if necessary, even protect others at the cost of their own lives. The concept of "law" was conceived by us humans, and it does not apply to any living thing other than man. So why are we talking about animal rights? The answer is simple: animal rights are the rights that govern the boundaries of human-animal relations. If we cannot determine the extent of human-animal relations, then we cannot hold some people accountable for cruelty to animals. Humans must be held accountable for their cruelty to animals. That's where animal rights come from. Key words: right, animal rights, welfare of animals, protection of animal rights

Law and Protestantism in Denmark

2016 ◽  
Vol 102 (1) ◽  
pp. 406-418
Author(s):  
Ditlev Tamm
Keyword(s):  
Criminal Law ◽  
Marriage Law ◽  
The Reformation ◽  
The Law ◽  
The Concept Of Law ◽  
The Church ◽  
Concept Of Law ◽  
Catholic Bishops

Abstract This contribution deals with the influence of the Reformation on the law in Denmark. The Reformation was basically a reform of the church, but it also affected the concept of law and state in general. In 1536, King Christian III dismissed the catholic bishops and withheld the property of the church. The king, as custos duarum tabularum, guardian of both the tablets of law, also took over the legislation for the church. Especially in subjects of morals and criminal law new principles and statutes were enacted. Copenhagen University was reformed into a protestant seminary even though the former faculties were maintained. For that task Johannes Bugenhagen was summoned who also drafted the new church ordinance of 1537. In marriage law protestant principles were introduced. A marriage order was established in 1582.

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