RITICALLY EVALUATE THE POSITIVIST CLAIMS FOR VALIDITY OF LEGAL RULES.

FULL ASSIGNMENT TITLE:

 Positivists claim that the legal validity of a rule is a matter of that rule s derivability from some basic conventional criterion of legal validity accepted in the particular legal system in question . . . The mere fact that a rule is just or reasonable will not make it a law; nor does the injustice of a rule demonstrate that it is not a law.
(per Simmonds, Central Issues in Jurisprudence, 2nd edition, at p.129)

CRITICALLY EVALUATE THE POSITIVIST CLAIMS FOR VALIDITY OF LEGAL RULES.

This set of notes is to be read as a guide to the completion of the legal theory assignment. It is not meant to be a definitive model for the answer to the assignment title. There are a few points that you ought to bear in mind when completing the assignment.

1. The assignment contains a quotation, followed by an instruction. You must remember to answer the instruction (ie,  critically evaluate& . ) rather than attempt to deal with the quote itself. The quotation is there to provide guidance, and context, to the answer.

2. Assignments that are badly structured tend to attract weak grades, even though the content may be accurate.

3. Identify the main issues for consideration, and deal with them in turn. Remember to link each issue together, so that the answer has a good flow and balance. Try to identify a  linking theme  that is, a central theme that will allow you to connect each separate issue together.

4. You will be expected to provide some description and explanation of the theory in question. However, to gain a higher grade you must attempt some critical analysis leading to an evaluation of that theory itself.

5. one way of providing a critical or evaluative approach is to use a second theorist as a comparator, whereby you are able to identify contentious issues and state how the second theorist has dealt with them.

6. Personal opinions are not to be discouraged, but remember that you will need to provide some evidence or discussion to support your opinion. It is not enough to say that you think this or that; you must explain why you think that way.

7. Remember the word limit, (2000 words) you should aim to structure your answer so that you can provide a solid discussion without exceeding the word limit itself. Use quotes and footnotes sparingly. If you divide the word limit by the number of main issues, that will give you good guidance on how much you ought to be writing on each point.


Notes given with the assignment:


Positivism is concerned with structure  the interface between concepts of rules (commands, norms, rules) and authority (sovereign, state) and sanctions (penalties, rewards?).
The structure is held together by consideration of issues such as validity and obedience.
Validity allows for external legitimisation of the structure.
But, why do people obey? Do they have to  are they forced to obey?
Austin  Habitual obedience  given to the sovereign, with fear of sanctions ensuring obedience (or compliance).
Hart  internal and external aspects  note the emphasis on private and official concepts of obedience  that is, how the public and legal officials both view obligations.
Distinguish obligation (duty) and obliged (force) to act. Why is the former seen to be more acceptable (Hart) and the latter less appropriate (but see Austin and Kelsen)?
Rules must be obeyed in order to give credence to the entire legal structure that is law and the legal system.
Kelsen claimed that validity could be achieved through effectiveness of application of norms  is this right? One norm derives it validity by reference to the superior norm above it.

Hart: Legal system as comprised of rules: primary and secondary rules. Obligations  distinction of  obliged. Obedience and legitimacy. Linked themes?
Rules as developed out of social arrangements. Legal or moral basis? Basis of obedience  internal and external aspects. Differing forms for official officials/public? Themes?
Primary and secondary rules. Scope and impact. Existence and evidence for. Problems with, and validity of & .etc
Laws as regulation of behaviour. Legitimacy and validity. Rules and authority. Law as system of power. Internal acceptance of rules  why?
Conclusion: where does legal validity come from? Why do we obey? Grounds for acceptance and legitimisation of rules.


The number of resources suggested is 3, although more or less than this can be used.
the assignment should be referenced by having the reference citation as a footnote for each reference.