How Does Kelsen Explain Legal Validity in General? Questionnaire Example

What are the two main features of the command theory of law? Explain each, then explain Hart’s critique of one or the other.

Austin’s Command Theory of Law is basically noted to be dependent on the thought that the command of the sovereign one, or the ones placed in power, comes with sanctions. In this case, Austin tries to decipher the real value of law as somewhat an element that comes from the consideration of how commandments are released and are expected to be followed by the public. To make sure that the command is followed, it is most often than not followed by a course of punishment, or a clause that defines what will happen if one fails to follow the commandments. The threat towards one who fails to follow what is indicated in the law is the accompanying sanction to each stipulated law.

Hart however critiques the concept of sanction. Hart points out that not all laws are backed up with sanctions. Contracts that bind people together such as marriage or business contracts are bound to be considered with the distinction of obligations and liabilities that the parties involved should recognize fully as part of their agreement to the contract’s clauses. Unlike Austin, Hart indicates that the law is a mere guidance, than a certain command that should be noted as something that sanctions people from doing what they want. Hart insists that laws are limitable elements that make it easier for humans to confer with their own rights while respecting the rights of others surrounding them.

What is the difference between content dependent and content independent reasons?  Which do authoritative commands presumably give?  What is the normal justification of authority, according to Raz?

Raz points out that when an action has been done apart from the primary reason of it being accomplished, then it is considered as a content-independent reason. On the other hand, an action accomplished according to the reason that has been established as somewhat necessary is noted as a content-dependent reason. In law, it is very important to know whether or not a particular action is supported by the reason behind its accomplishment.

Humans tend to accomplish a lot of things; they are often motivated to accomplish actions based on particular reasons. Some reasons are willful, which means that these actions were completed according to what is desired by the one acting. On the other hand, some accomplish matters due to pressure and expectations, which indicates that some actions are completed with force. Raz identifies well with this concept as he points out that individuals who are in the position to make things happen have the capacity to choose to complete their tasks based on their will or based on what is expected of them, this according to Raz, defines the concept of normal justification of authority.

In what way is law and interpretive practice?  Why might we need to put law in its best light as a result?  What is Marmor’s argument against this Dworkinian point?

Law is considered as an interpretive practice due to the process by which it entails to examine the different aspects of the facts or information that are passed on under the context of legal sanctions. For instance, if cases emerge and are needed to be heard, several investigations are needed to be completed for such process to be considered final. Hence, to make sure that everything is given attention carefully, it is important to make sure that the law is put in light hence making the results more transparent and reflective of what is true.

Considerably, regarding this matter, Marmor’s interpretation of the value of law as an interpretive practice is somewhat different from Dworkinian’s explanation of the matter which is more dependent on the normative aspect of the law. Relatively, Marmor insists on the intensive implication of interpretive practice instead of a normative approach which means that all resources and possibilities are expanded and explored for the sake of determining the value they have for the resolution of the case at hand.

What features of language might lead one to believe that legal rules simply can’t express enough to cover all cases?  What is the notion that we should look at the “legislative history” in order to fill in gaps in the language of law with “legislative intent?”  Why does Scalia think this is the wrong theory of legal interpretation?

Not everything could be contained in a legal statement. Legal statements often generalize the way the concept of rules is being passed on for public knowledge. Relatively, the limitations of language often make particular legal statements to incur loop holes that are often used to discredit the relation of a particular legal concept to a specific situation being resolved. Notably, this is the reason why legal statements are often renewed or updated every now and again to make sure that they still apply to the current situations that humans tend to deal with.

Human conflicts are often among the hardest issues to resolve in relation to the distinct determination of legal application. Notably, since legal statements are not that easy to change, it takes time before specifics are being added into the said statements based on the developments of cases relating to the issues that these statements cover through time. Scalia however insists that it is not the specificity of legal statements that should be given attention to, but the generality of the application of such sanctions. Creating umbrellas of interpretation is a much dependable development in law rather than simply changing the whole context of legal references that have already been established in the past. Determining how the legal statements apply to the current situations shall allow law makers to make adjustments on the underlying clauses that help detailed and direct interpretation of such statements easier to understand in relation to the current issues that the human society deals with at present. Applicability to time and people is then considered an important concept to expound in relation to this issue.

What are the core features of a constitution according to Waldron?  Why might we value a constitution for these reasons?  What features of constitutions does Waldron think are dangerous?

According to Waldron, the direction of the constitution towards determining the value of democracy and the recognition of the rights of each individual is the primary foundation of what good laws are made up of. Balancing the values and the limitations of the rights of each individual in relation to others is expected to create a distinct impact on how people recommend their actions as beneficial to themselves as well as to others. As it could be observed, constitutional laws are expected to give protection and guideline at the same time, thus pointing out how one should act towards another given particular situations to consider. It is through this concept that social balance is kept at bay thus putting people mindful of the way they act towards their fellowmen,

Agreeably, such an understanding of the real value of constitution specifically insists on the capacity of the law to become the founding structure that humans are to depend upon especially when it comes to checking whether or not their decisions and their actions are in line with the law or at least what the law recommends. Nevertheless, Waldron does not forget that at some point, it is these features of the constitution that recognizes the right of a person against another that makes such set of legal clauses weak and questionable. Overall, it is the determinable interpretation of a person on how the law applies on him that appears to be the best basis of whether or not a certain concept of legal statement should be recognized effective.