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Essay代写:Authority of law

2019-10-21 | 来源:51Due教员组 | 类别:Essay代写范文

下面为大家整理一篇优秀的essay代写范文- Authority of law,供大家参考学习,这篇论文讨论了法律的权威。法律的权威是法律得以实施的重要保障,也是法律理论发展史上不少学者为之争论不休的一个问题。在实证主义法学看来法律的权威地位的确立与法律中主权者的作用和地位分不开。在法律理论史发展的历程之中,法律权威概念的暴力概念正不断减弱。从法律权威的发展历程可以看出,法律本身所具有的物质强制力也在向合法性论证的方向转变。

Authority of law,法律权威,英国代写,英国论文代写,essay代写

The enrichment and development of law in modern society is largely due to the continuous establishment of the independent status of law in recent centuries. In this process of independence, jurists continue to inherit the traditional legal theory and at the same time from the theology, philosophy and political science to explore and separate the legal factors, and their re-combination and interpretation, and then form a unique legal system. The basic concept of jurisprudence plays a decisive role in any legal theory system. They assume the unique mission given by the author, and often have a strong purpose. In the forming process of positivist jurisprudence, this characteristic is very obvious. In terms of positive jurisprudence in particular, such examples abound, such as "rights", "obligations", "rules" and so on. The presentation or reformulation of each concept is the formation of a new legal concept or the revision of the traditional legal concept. Such is the concept of sovereign. Moreover, in positivist jurisprudence, the sovereign and its related factors occupy a fundamental position in the whole legal system. Its formation process reflects the attempt of positivist jurists to solve the legal problems they must face. Hobbes and austen used it to re-establish the authority of the law, giving it certainty and independence. From the moment it appeared, the "sovereign", bearing the authority of the world, gave orders to his inferiors. This image was taken to the extreme by austen, who was often used as a spokesman for the theory of legal violence. In his opinion, the legal system based on this concept is very effective in the development of legal theory. However, as the violent nature of the modern state diminishes, so does the coercive nature of the law. The concept of the sovereign as the supporting point of law enforcement is constantly reviewed and criticized. Especially in hart's self-sufficient rule system, the uniform acceptance of officials as the guarantee of effectiveness and various legal rules as the rigorous logical framework have eliminated the violent color of the order of the sovereign. Furthermore, hart's interpretation is regarded as the standard interpretation of austen's theory by later generations. With the weakening of modern state governance and the strengthening of management, the sovereign, the core concept of positive jurisprudence, seems to have retired after fulfilling its mission. What catches our eye now is "ruleless governance", in which the violent "sovereign" must be re-examined in the context of a high degree of autonomy.

Taking positive jurisprudence as an example, the emergence of the concept of sovereign is loaded with an important mission, and a series of important legal propositions need to be solved, among which the most important is the subjectivity and authority of law. In the early years of legal positivism, its core proposition was that the sovereign commanded and the law imposed sanctions by the state. These two propositions were connected with the proposition of "the distinction between law and morality" until Austin, and formed the triangulation proposition of legal positivism thereafter. In these three propositions, it is said that the distinction between law and morality is the product of the methodology of empirical science, that is, the distinction between "ought to be" and "fact" in research methods, while the other two propositions are directly from the empirical reality, that is, how to demonstrate the status and legitimacy of legal authority in theory. Positive science itself strengthens the legitimacy of the legal system and demonstrates the rationality of the legal order under the rule of the state. In a word, the social sciences shaped by the positivism spirit in the background of science are all developed around the country and serve the country. Legal positivism theoretically supports the supremacy of national sovereignty, and sovereignty, national will and national coercive force have become the key words of legal positivism. On the micro level, legal positivism shapes the technical thinking of scientific reasoning and the legal subject required by modern society.

Exploring the origin of the concept of the sovereign can help us better understand the problems that jurists use it to solve and the universality and abstract image of legal authority. Just as the ancient Roman legal system provided the source for many European civilizations, the origin of sovereignty can be traced back to ancient Rome. On the other hand, we can see that the sovereigns had a lot to gain from Roman law. This is largely attributed to austen's dedicated study and research of Roman law before he took up the post of jurisprudence faculty. In feudal times, sovereignty had little influence because of the way the vassals ruled. Its re-emergence is largely due to the fact that modern jurists combined the "imperial power" with the "governance" in Roman law and the sovereignty in feudal times, thus establishing the concept of sovereignty in modern legal system. The legal theory of sovereignty can only be traced back to the beginning of the Roman empire. Sovereignty is common to all peoples. In order to enable one person to exercise the powers contained in sovereignty on behalf of all the people, the Romans delegated sovereignty to the head of state through the law of the king. As a result, the emperor consolidated the powers that had been vested in different institutions during the republic. Gradually, the exercise of the emperor's power became a fixed system, and the emperor's power was no longer exercised by the authorization of the people. Justinian's "ladder of law" says: "the emperor's decision also has legal effect, because according to the law of the king that gives him power, the people hand over to him all their authority and power. Therefore, all the ordinances of the emperor, all the decisions in the judgment of the case, all the provisions in the summons, are of course the law; all these are called constitutional ordinances. According to this account, the emperor's orders were only one source of law. But he can equate his will with the law. He has the right to impose his will on others, because his power has the property of requiring universal obedience. But that changed in feudal Europe. Social classes coordinate their relationships through a set of hierarchical contracts. Obligations and rights are often in the same person, interdependent. A feudal Lord is not the same as a Roman emperor. He must make a promise of himself before he can get it from others. However, the theory of sovereignty has not disappeared, it has been preserved in the imperial power of Germany and other countries. Until later, the power originally possessed by the emperor was combined with the concept of "ownership" in Roman law, and the power to issue orders was regarded as a proprietary right similar to property. Thus the theory of sovereignty took its full shape. From this we can see that the power of the sovereign comes from the power of governance and governance is its core content. It has never been of a legal character to that of a legal character and has grown in strength. The jurist bodin defined sovereignty as "absolute and enduring power within a state." The first and most fundamental feature of sovereignty is the ability to issue orders to society as a whole or to individuals without the consent of others. Moreover, gradually, the sovereignty was separated from the content of governance and became the general term of the power exercised by the king. Thus sovereignty became an indivisible, inalienable institution, and thus the representative of the will of the state, and has not changed much since. The only difference is that after the rise of the revolutionary theory, the sovereignty of the king was replaced by the sovereignty of the state. This theory can be best represented in Rousseau's argument. From then on, sovereignty evolved from the ownership of specific individuals to the special attributes of abstract personality subjects. The emergence of the concept of social contract endows the sovereign with legitimacy and enables the sovereign to become the bearer of the general will, thus making it a useful analytical concept in both traditional and modern societies.

In the early period of positivist jurisprudence, the establishment of legal authority was inseparable from the thought of social contract. In the history of the theory of sovereign, Hobbes' exposition has the significance of connecting the past and the future to the relationship between sovereign and law. Hobbes recognized that the central element in traditional religious relations is authority or obedience to power. The power of the mystical, the power of the mystical gods dwarfs everything else. It is out of fear and fear of these powers and authorities that we have established religion, and among its institutions the most perfect and strict authority on earth, and a whole body of authoritative theories. More importantly, the whole system and theory can also give authority derived from mysterious forces to secular figures. In the secular world, not all of us can hold power, because then we would be left in chaos. After describing human nature and the natural state of man, he said: "it is evident, therefore, that men are in what is called a state of war when there is no power to frighten them. This kind of war is everybody's war against everybody... The nature of war also lies not in actual combat, but in the well-known propensity for war throughout a period of no guarantee of peace. All other periods are peacetime. So Hobbes' view is now extreme: there was no justice, no way of distinguishing right from wrong, good from good, before the emergence of governing power. Hobbes rejects the idea that there is some kind of standard independent of human social thought. The idea is that there is a natural standard by which we are guaranteed to judge the nature of justice or injustice that we want. But it is hard to say that such a standard exists, and such a standard is not provided by the natural state. But people are able to form a group of judges, and this combination can provide us with some kind of power, prestige and standard. He argued that when everyone in the group agrees to be represented by one person, they become a single personality. It is only when this personality is sustained, and is the sole representative of it, in a group of people who are in conflict and struggle, that unity or unity of standards can be produced, and so can the authority of law and politics.

Therefore, it can be argued that legal power is an institution, but it is not a spontaneous structure, but an individual creation. In fact, according to Hobbes, sovereignty is an institutionalized power that combines the powers that individual members of society relinquish, and is allowed to act within the powers that are relinquished. Of course, to understand it this way, the authority and foundation of law is created by the fact of social contract. A social contract is a way of establishing universal power over society. Thus the relationship between the sovereign and the subject is established.

Hobbes introduced the relationship between the sovereign and the subject and provided a new epistemological and legal basis for the power of the ruler. If we break the shackles of the church and stop believing in god as the sole core, we will see a complex pluralism of views. To see the world as an open world that can be transformed from within also shows that we no longer see the world as the authoritative property of nature. Hobbes maintains this pluralism through a new kind of contractual construction, a kind of secular power, a kind of secular authority.

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