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What are H.L.A. Hart’s specific five criticisms of Austin’s theory of Law?

What are H.L.A. Hart’s specific five criticisms of Austin’s theory of Law?

Question 1 (10 points)

In the 2004 Amselem case, the Supreme Court of Canada introduced the “sincere belief’ standard for determining when our Charter-protected right to freedom of religion right may be invoked.

a.  What does the court mean by “sincere belief”?

b.  How do the courts test for “sincere belief’?

 

c.  Provide one example (either from the readings, Modules, or of your own invention) of an instance where you believe an appellant would fail the test for sincere belief, and another example where you believe an appellant would pass. Please explain why in both instances.

 

Question 2 (10 points)

With reference to Rodriguez v. Attorney General ofBritish Columbia, present a key legal/philosophical principle on both sides of the split decision (one principle for each side), and explain how those two principles were decisive in reaching their respective conclusions on the matter at hand (namely, the decriminalization of medical aid in dying, MAID).

Question 3 (10 points)

Section 1 of the Canadian Charter ofRights and Freedoms confirms that the rights listed in that document are guaranteed, subject “only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.” Subsequently, the Supreme Court developed the Oakes Test in order to decide the scope and limits of those justifiable limitations.

a.  Explain, generally, what (by way of the Oakes Test) the Court is tasked with determining in cases of an established infringement of a Charter-protected right?

b.  What are the different parts of the Oakes Test, and what is meant to be determined at each of its stages?

Provide a brief example (one either discussed in the course, or one of your own) of how the Oakes Test could be used to determine when such state infringements of Charter-protected rights may be justified under the Charter.

Question 4 (10 points)

H.L.A Hart defines law as “the union of primary and secondary rules.”

a.  What are primary rules and what are secondary rules — and what is the difference between them?

b. What are the three different kinds of secondary rules? Explain what each entails.

For Hart, each of the secondary rules address a specific issue. What issue does each of them solve and why, on those terms, are each of these secondary rules crucial for the proper 

Question 5 (10 points)

 

With reference to Bedford v. Canada (and the decision regarding the decriminalization of activities related to prostitution), explain how feminist legal theory could be applied on both sides of the debate (both for and against decriminalization). Be sure to begin by explaining, in general terms, what feminist legal theory is.

Question 6 (10 points)

In On Liberty, John Stuart Mill describes “the nature and limits of the power which can be legitimately exercised by society over the individual” and offers, by way of response, what has become known as the Harm Principle?

a.  What is Mill’s version of the Harm Principle?

b.  Define legal moralism and legal paternalism, and explain how the Harm Principle is designed specifically to address and avoid the risks of both?

Question 7 (10 points)

a. In your own words, what is John Austin’s definition or concept of law?

b. What are H.L.A. Hart’s specific 5 (five) criticisms of Austin’s theory of Law? (Identity and briefly explain each of 5 (five) criticisms.)

What are H.L.A. Hart’s specific five criticisms of Austin’s theory of Law?

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