Rules and Legal System Essay Example | Topics and Well Written Essays - 2500 words

Rules and Legal System - Essay Example This will also ignore rules set down by extra-systems and will not come up with a definition of law. Every legal philosopher agrees on and presumes the presence and necessity of rules in every legal system. They only bicker on the manner of their validity and normativity. Rules are inherent in the very definition of law and of legal system and are very significant in legal process. Analytic Jurisprudence views the legal system as constitutive of norms and differentiates and severes it from other non-legal systems extant in every possible society. According to Austin (1995)1, analytic jurisprudence seeks to put a handle upon "the essence or nature which is common to all laws that are properly so called." (p. 11) The existing works of analytic jurisprudence exist in a continuum which on one end stands theories of natural law and on the opposite, that of legal positivism with strains of both theories in between. More modern theories diverge from both theories forming classifications of their own. This law of nature, being co-eval with mankind and dictated by God himself, is of course superior in obligation to any other. It is binding over all the globe, in all countries, and at all times: no human laws are of any validity, if contrary to this; and such of them as are valid derive all their force, and all their authority, mediately or immediately from this original. (p.41) Neo-classical natural law theory use the said thesis to provide the basis for justification of legal obligatoriness and consequent state coercion. For John Finnis (1980)3, "the principles of natural law explain the obligatory force (in the full sense of 'obligation') of positive laws, even when those laws cannot be deduced from those principles" (p.23-24) Fuller4, on the other hand, lists eight (8) principles of procedural morality requirements, all concurring, which every law should satisfy. According to him (1964), these features serve "the enterprise of subjecting human conduct to the governance of rules." (p.106) On the opposite, legal positivists proffer criteria for validity of law other than morality. Legal Positivism asserts that "it is in no sense a necessary truth that laws reproduce or satisfy certain demands of morality, though, in fact they have often done so. (Hart, p.181-2)5 Legal Positivism. For all positivists, the law is a social construct. The Conventionality thesis insists that social convention serves as the rule of recognition of the authoritativeness of a law. The Social Fact thesis require particular facts such as the presence of a sovereign or of primary and secondary rules as rules of recognition that provide legal validity. The Separability thesis denies any overlap between