NOTES OF CONSTIUTIONAL LAW, CASES LAWS, CASE PRESENTATIONS, Cheat Sheet of Law

Download NOTES OF CONSTIUTIONAL LAW, CASES LAWS, CASE PRESENTATIONS and more Cheat Sheet Law in PDF only on Docsity! The scoop of the day Kelsen who? Austrian American jurist, legal philosopher, educator, and author on international law Hans Kelsen (October 11, 1881 – April 19, 1973) is credited with developing the concept of "pure theory" of law. To avoid persecution for his Jewish ancestry, he had to uproot his family and move around a lot, but this allowed him to meet and network with legal experts from all over the world. Many of his works on public law were written while he was a professor at a university in Vienna. Kelsen was asked to propose the constitution for the Austrian Republic in 1919; it was adopted the following year in 1920. He later served on the Austrian Constitutional Court but was forced to resign due to political pressures. Almost 400 of Kelsen's works are on legal philosophy. In his books Allgemeine Staatslehre (1925) and Reine Rechtslehre (1926), he argued against the validity of natural law (Introduction to the Problems of Legal Theory; 1934). "Pure theory" was Kelsen's Kantian take on legal positivism. Hans Kelsen's theory is still widely cited as a seminal text in the academic study of law. Source: Hans Kelsen | IVR website and blog (wordpress.com) The concept The Pure Theory of Law Kelsen sought to identify the distinctive features of legal systems. It was a purely theoretical description of law because it did not reduce the study of law to the level of psychology or sociology. That's what set Kelsen apart from the other Scandinavian realists. Kelsen argued that the command theorists were incorrect to view the law as the sovereign's mandate enforced by force. Why? Because if that were the case, the law and a gunman's command would be identical, but they are not. Unlike the gunman's orders, the law is normative and ought; and this ought is binding. Simply put, a valid law must be followed in the letter to be considered law. Why, then, does this obligation exist? It was legitimate because it assumed a normative framework within which legal cognition could take place. Kelsen's goal was to create a "pure theory of law," or a science of law that is detached from any moral or ethical considerations. Since morality was nothing more to Kelsen than ideology, he believed that any explanation of the normativity of law had to be divorced from morality. Then Kelsen admitted that the fundamental norm was an invention rather than a given. He argued that the dominant legal theories of the time were tainted by either an attempt to reduce law to the natural or social sciences, or by the imposition of morality and political ideology. – CONTINUED ON PG 02. Source: https://entreabogadosteveas.wordpress.com/ 2015/05/01/foto-de-kelsen-cuando-era-nino-y- ya-que-andamos-en-esas-tambien-de- carbonell/ The Kelsen Saga HANS KELSEN Hart Felt News H.L.A HART Kelsen v. Hart ANALYSIS Page 01-02 Page 03 Page 04-05 Page 2 Sunday, November 6, 2022 The Daily Norm Special Issue SECOND SCOOP Hart’s Concept of Law These rules are of two types:  primary and secondary rules. The primary rules impose a certain set of duties on the people, which makes them behave in a certain way. An example of this can be seen in like this, in a game of football the main aim is to kick the ball into the other team’s goal. The rules that govern the players and match can be seen as the secondary rules. An example of this is the referee (a person appointed to enforce the rules of the game) giving a red card to a player would mean that that player has violated one of the main rules of the game. A Union of the primary and the secondary results in the formation of law. Hart also goes on to explain that the second rule is there to solve the “defects” of the primary. This is due to the primary rule being:1. Uncertain about what the law is; 2. Being Static; 3. Inefficient in knowing if the law was violated There are three categories of secondary rules:1.Rules of Recognition: These rules determine whether a law is legally valid or not; 2.Rules of Change: These rules regulate the process of change of the primary rules themselves; 3. Rules of Adjudication: These rules give power to officials to pass judgment in cases of alleged wrongs HART WHO? Herbert Lionel Adolphus Hart (1907- 1992), popularly known as HLA Hart is one of the most influential 20th- century political philosophers. His most famous work “The Concept of Law” took British Jurisprudence by storm in the late 20th century. Hart is also known for his responses to other eminent jurist’s theories with the likes of Bentham, Austin, and Kelsen. After he graduated from the University of Oxford in 1929, he went on to practice law as a barrister. When World War II began in 1939, Hart went on to serve as part of the British intelligence service MI5. After the war, he became a professor of jurisprudence at Oxford and a fellow of University College. He also went on to serve as a principal for Brasenose College from 1973–78. Picture Caption: To make your document look professionally produced, Word provides header, footer, cover page, and text box designs that complement each other. Hart states that the law is composed of a set of rules. A rule is defined as a “kind of complex social practice that consists of a general and regular pattern of behaviour among some group of persons, together with a widely shared attitude within the group that this pattern is a common standard of conduct to which all members of the group are required to conform.”  Source: https://commons.wikimedia.org/wiki/File:H.L.A.Ha rt.jpg This rule is one of the most important rules put forward by Hart.  It not only remedies the defect of “uncertainty” of the primary rule but also shows how the law is unified. For example, it is commonly known that it is illegal to drink and drive. This was made into law in Section 185 of the Motor Vehicle Act 2019 which also gives punishment for whoever drives, while still being This is known as the Regress of legal validity where the three are different laws which are enacted on the same basis.  Now it can be questioned how did the foundation law, in the current case the Constitution, have the power to make secondary laws? Hart explains that it is a “social rule” which means that the foundational law gets its power from the people, under the influence. It is also illegal to kill a person, which is under Section 302 of The Indian Penal Code. Both of these laws were drafted by the Legislature of the country, which derives its power from the Constitution of India. One of the main objectives of the Constitution is to ensure the safety of the people. Therefore, we can see that these two laws have a common basis, the Constitution. who believe that it exists and so lets it govern them. Hart also mentions that the rule of recognition is not “stated” but is rather shown by the behaviour of the people. For example courts and policemen carry out acts of justice to ensure the safety of the citizens. In conclusion, the foundation of the legal system as per Hart is that the majority of the citizens must obey the rules and the officials must accept the rules and carry out to enforce the rules. Page 6 Sunday, November 6, 2022 The Daily Norm Special Issue Source: https://yurismuda.com/en/the-relationship-of-law-and-morality-according-to-hla-hart/ The Kelsen Versus Hart Debate.. Kelsen describes the law as normative i.e., it is binding on the people and ought to be obeyed by them, he gave “the pure theory of law” which is based on this normativity and bindingness of law. According to him the legal validity of a rule is derived from the Grundnorm or the Basic Norm of the legal system to which the rule belongs. He further classified the secondary rules into three types i.e. the rule of recognition, the rule of adjudication, and the rule of change. The rule of recognition is accepted by the officials of the state as a common standard which also determines their behaviour in the official capacity, and these rules of recognition provide a test for the legal validity of a primary rule. This rule of recognition can be modified by either violent or peaceful means. This Grundnorm is the historically first constitution of the legal system and the validity of a law is traced upwards in the chain of legal validity towards the historically first constitution. This chain of legal validity is broken when a revolution or an illegal act establishes a new legal authority, and this results in ‘autochthony’ that severs the tie to the Grundnorm or the Basic Norm present at the time before it. Hart responded to Kelsen’s theory in his book “The Concept of Law” in which he rejected this Grundnorm theory of Kelsen. According to Hart, a legal positivist, the law is made up of different rules, and for a rule to have legal validity it needs to satisfy the tests as laid down by his “rule of recognition”. Hart says that the legal system comprises of primary rules which put a duty on the people to behave in a specified way (e.g. the Indian Penal Code), and the secondary rules are about the primary rules as it tells how to enforce the primary rules or how to modify them or how to execute them (like the Code of Criminal Procedure). Kelsen thinks the validity of his basic norm has to be assumed or postulated, Hart considers that his rule of recognition can be ascertained by reference to actual practice. The rule of change allows and prescribes the procedure for amending or repealing of the primary rules. The rule of adjudication provides for the authority of the officials of the state to decide on matters where the violation or omission of the primary rules occurs. Now, the most fundamental difference between Hart and Kelsen’s theories is that while Hart incorporates in his theory the sociological aspects like the relationship between the people and the officials, and it bases the rule of recognition on the