Family law is more often than not associated in people's minds with negative times in their lives such as relationship breakdowns, childcare disputes, and financial problems relating to family life. However, from a legal perspective, family law is a fascinating area of law as no two cases are ever the same. There are so many issues that need to be considered: Who does family law protect? Who does family law fail to protect? What human rights affect family law? How far should rules extend into people's intimate relationships? This chapter asks all of these questions and presents the focus of the chapters to come.
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1. Introduction
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5. Hart’s Theory of Law
J. E. Penner and E. Melissaris
This chapter explores Hart’s construction of a better theory, in particular in contrast to the theory set out by Austin. The discussions cover the importance of rules; obligation and the internal aspect of rules; the union of primary and secondary rules; the rule of recognition; legal systems and the importance of officials; public international law in Hart’s theory; and the significance of Hart’s theory.
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Postscript
H. L. A. Hart
Celebrated for their conceptual clarity, titles in the Clarendon Law Series offer concise, accessible overviews of major fields of law and legal thought. This Postscript attempts to reply to some of the criticisms urged by R. M. Dworkin in many of the seminal articles collected in his Taking Rights Seriously (1977) and A Matter of Principle (1985) and in his book Law's Empire (1986). The focus is on Dworkin's criticisms because he has not only argued that nearly all the distinctive theses of this book are radically mistaken, but he has called in question the whole conception of legal theory and of what it should do which is implicit in the book. The first part of the Postscript is concerned with Dworkin's arguments. The second part considers the claims of a number of other critics that, in the author's exposition of some of his theses, there are not only obscurities and inaccuracies but at certain points actual incoherence and contradiction.
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V. Law as the Union of Primary and Secondary Rules
H. L. A. Hart
Celebrated for their conceptual clarity, titles in the Clarendon Law Series offer concise, accessible overviews of major fields of law and legal thought. This chapter begins by identifying two types of rules. The first, which may be considered the basic or primary type, requires human beings to do or abstain from certain actions, whether they wish to or not. The second type of rules are in a sense parasitic upon or secondary to the first; for they provide that human beings may by doing or saying certain things introduce new rules of the primary type, extinguish or modify old ones, or in various ways determine their incidence or control their operations. The chapter then argues that in the combination of these two types of rule there lies what Austin wrongly claimed to have found in the notion of coercive orders, namely, ‘the key to the science of jurisprudence’. It attempts to show that most of the features of law which have proved most perplexing and have both provoked and eluded the search for definition can best be rendered clear, if these two types of rule and the interplay between them are understood. This union of elements is accorded a central place because of their explanatory power in elucidating the concepts that constitute the framework of legal thought.
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3. Gender, race, and diversity in the legal profession
This chapter examines the issue of diversity in the legal profession. It first explains the meaning of diversity and the reasons why it should be promoted. Debates around diversity have focused particularly on gender and race, although increasingly there is emphasis on achieving diversity in relation to socio-economic background, disability, and sexuality too. It reviews the current status of the profession in terms of diversity. It considers diversity rules as set out in in the Equality Act 2010, the Solicitors Regulation Authority (SRA) Handbook, and the Bar Standards Board (BSB) Handbook. Barriers to diversity and steps to promote diversity are also discussed.
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14. Gender, race, and diversity in the legal profession
This chapter examines the issue of diversity in the legal profession. It first explains the meaning of diversity and the reasons why it should be promoted. It reviews the current status of the profession in terms of diversity. It considers diversity rules in the Equality Act 2010, Solicitors Regulation Authority (SRA) Handbook, and the Bar Standards Board (BSB) Handbook. Barriers to diversity and steps to promote diversity are also discussed.
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6. Post-Hart Analytical Philosophy of Law: Dworkin and Raz
J. E. Penner and E. Melissaris
This chapter explores the main currents in legal philosophy following Hart, focusing on the work of Dworkin and Raz. It begins with overviews of the philosophies of law of Dworkin and Raz. The chapter then discusses Dworkin and Raz on rules and principles; Dworkin’s theory of law; whether lawyers are moral philosophers; Raz and the authority of law; and the impact of the work of Dworkin and Raz.
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2. Principles of contract law
This chapter details the principles of contract law. It cites that the notion of a contract is a flexible concept which can be invoked by the courts in order to provide solutions to difficult fact situations. The general principles of contract law underpin special rules and apply to all the different classes of contract except in so far as modified by particular rules applying to the particular class of contract. The chapter then looks at the philosophy of contracts and the misleading impression of contracts' role in business. It presents a range of remedies to be invoked when there is a breach of contract.
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4. Criminal Law Fabric
This chapter analyses the fabric of criminal law—rules, standards, and principles—giving examples of how each of these are used to construct the criminal law. A particular highlight, in the discussion of rules, is the importance of secondary legislation in creating offences, especially offences regulating business activity. The chapter also considers the values that the criminal law should respect, such as human rights, moral autonomy, and lifestyle autonomy. To that end, the chapter explains the harm principle, and the arguments for and against punishing ‘immoral’ behaviour. There is also an analysis of important principles of criminal offence construction and interpretation, such as the principle of strict construction and the authoritarian principle.