What Makes the Rule of Law Legitimate? Term Paper

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Rule of law Legitimate?

'The Rule of Law is to be Legitimate because the issue of law is not a simple, but a highly complex one, and it involves the analysis of numerous important issues." Law is not as simple as something that can be forced upon or coerced out of an individual or a group because of several reasons. One is that when it is a criminal statute, for example, because of the fact that it forbids certain actions, under force of penalty, resembles the threats that one individual can make against another, but it is different at the same time because it most often applies to those people who enact it, and not to others. Secondly, certain laws like private, and public laws, cannot possible be misinterpreted as threats, and third, certain legal rules are different from orders, because they are not created by anything equivalent to specific instructions and recommendations. Fourthly, when law is analyzed in terms of the sovereign, in which case it is obeyed without limitations, then it would not satisfactorily explain the continuity of legislative authority found in a modern legal system, and this would also mean that the sovereign person would not be identified with the legislature or with the electorate of a modern state. (Hart, 79) In addition, when law is taken as a sovereign's orders, and the rule of 'tacit order' is considered, what happens is that this does not apply to the modern legal system, and therefore, it will fail to correlate that simple rule to the modern system. Therefore, in the analysis of a modern legal system, one must remember to keep in mind the two important rules, which though different, are co-related. (Hart, 80)

One is a primitive or basic rule, according to which a human being is required to carry out or stop from doing certain activities, and the second set of rules are almost parasitic upon the first set, and these are that human being, by saying or doing certain things, may bring in new rules for the first set, and also modify the old rules. Therefore, it can be said that while the first set of rules impose duties, and deal with physical actions; the second set eventually bestows powers, which lead to physical actions that in turn lead to a creation of new duties, or a change in the existing ones. Most studies of law would be made easier if these sets of rules and the interrelationship between them were understood. (Hart, 81)

When law is taken as a coercive order, the human conduct that results is obligatory, and one example would explain this clearly. If a gunman, A orders victim B. To hand over the money, or else he would shoot, then B. is obliged to obey A. A becomes the sovereign who must be obeyed, and forces a certain mode of conduct on B, wherein B. would be obliged to hand over the money, in order to avoid the unpleasant consequences, if he did not oblige. There is a subtle difference, however, between 'being obliged' and 'had an obligation'. (Hart, 82) Rules must be understood as being 'imposing obligations', when conformity is necessary, even though there may be no punishment for non-conformity, other than perhaps verbally expressed disapproval. The individual who does not conform may also be subjected to his own feelings of guilt and remorse for having disobeyed. (Hart, 86)

One particular image, which haunts all legal thought, is that of social pressure being a 'chain' that binds those with obligations in such a way that they may not be free to do whatever they want, an official or a group of representatives holding the other end of the chain. This image shows exactly what the duties and obligations under criminal law are. (Hart, 83) In a normal legal system, a sanction of some sort would be generally extracted for an offence, and it can be said that the offender risks being punished for his offence, and this means that the statement that says that the offender has an obligation and that he would suffer for disobedience would go together and are well connected. (Hart, 84)

However, it must be remembered that obligation does not necessarily mean that people who have them are under pressure; rather, they may want to do it. Therefore, according to the 'predictive theory', if social pressure is important during obligation, then it must not be seen an as 'inadequate theory', wherein obligation may be defined as the awareness that there will be punishment if there was a deviation in the rules, or if they were not followed.

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There is a difference between the two ideas, and this has to be grasped completely before comprehending that all human thoughts and actions are a part of this set of rules, and this is a pat of the normalcy of the society in which we live. (Hart, 88)

The internal and the external aspects of rules makes the understanding not only of rules but also of society in general much easier, and this can be seen in the example wherein when a society has certain rules, it makes it possible for many types of assertions to come to the fore, and it is therefore likely that one can be concerned with rules, and both as an observer who sees them but dose not use them, and as a person who actively takes part in them. When statements are made from an external point-of-view, the observer may, without taking the rules for himself, insist that the group uses them, and therefore, in this way, insist, from the outside, that they use the rules as they are concerned with them, from the inside. Whether it is a game or is a set of moral and legal rules, one can always choose to take the place of the observer, and view them from the outside, without adopting them himself, and after a period of time, it would be possible for him to draw a parallel between hostile reaction and deviation, and be able to predict with accuracy when the group's deviation would result in punishment, and in hostile reaction. However, the problem is that when an observer attempts to adhere to this external point-of-view while at the same time making no comment on the various members of the group view their own behavior, then his descriptions cannot be seen as rules at all; and definitely not in the category of rule-dependent duties and obligations. (Hart, 89) The observer's view would be something like when, for example, he sees a red light at a junction, he would feel that there is a 'high probability' that the traffic would stop, and makes similar observations about people, wherein the internal aspect of rules when seen from an internal point-of-view would be established. (Hart, 90)

It is indeed possible to imagine a society in which there is no legislature, no courts, and no officials of any kind, and in fact, there are primitive societies in which there are no known sets of rules, except what comes under 'obligation', where this is referred to as 'custom', or as 'primary rules of obligation', and if a society were to live under such rules alone, then some conditions must be met with. These are that, first, the rules must ascertain that violence, theft and other such crimes must be curtailed, (Hart, 91) second, that there must be a difference between those who conform and those who don't. However, it is clear that only small societies would be able to live with such rules, and in general, certain amounts of supplementation would be needed. This is because such rules would not form a system, and this means that they need not be followed, much like the rules of etiquette, and there would be nobody to correct them if they were wrong. In addition, these rules would be basically static. (Hart, 92) Such rules would also be inefficient in the face of the extreme social pressure under which such rules must be maintained. (Hart, 92) The best remedy for this would be to change the primary rules of obligation with secondary rules of a different type. One would be the introduction of a rule of recognition to combat the uncertainty, and another would be to (Hart, 94) introduce the element of static into an area where instability is predominant, (Hart, 93) and thirdly, to remedy inefficiency by supplementing it with efficiency. (Hart, 96)

In day-to-day life, a legal system is seldom formulated as a 'rule', even though it is possible to place one law as relative to another, and 'subordinate' it. (Hart, 101) However, there is a difference between the validity of law and its efficacy (Hart, 103) For example, when a judge states that a rule is valid, this is what works within a judicial decision, and by making such a statement, he presupposes, but dose not state openly, the efficacy of the system. The rule of recognition….....

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