austion,hart and kelson on sanction

Topics: Law, Jurisprudence, Ronald Dworkin Pages: 10 (3494 words) Published: October 18, 2013
Austin, Hart and Kelson on Sanction as an integral part of law

The term “sanction” is derived from Roman law. Sanction was originally that part of the statute which established a penalty or made other provisions for its enforcement. In the ordinary sense, the term sanction means mere penalty It can also be some motivating force or encouragement for the purpose of better performance and execution of laws.

Meaning
The term “sanction” is derived from Roman law. Sanction was originally that part of the statute which established a penalty or made other provisions for its enforcement. In the ordinary sense, the term sanction means mere penalty It can also be some motivating force or encouragement for the purpose of better performance and execution of laws.

Sanction and punishment
A sanction can be distinguished from punishment .Sanction is the genus of which punishment is the species. Sanction consists in the application of the physical force of the state for the enforcement of law. Punishment or penalty is an evil inflicted upon a wrongdoer. Punishments are pre-eminently the sanction of criminal law. They are ultimate sanctions. The term sanction is wider than punishment. It is one of the kinds of sanction. There are sanctions other than punishments Civil sanction has compensation as their object.

Sanction and liability
Sanction is a conditional evil to be incurred by disobedience of law. Law is “the state of exposedness to the sanctions of the law.”

Sanction of nullity
Sanction of nullity is a civil sanction which regulates the rules of evidence and procedure. It consists in a refusal by the court to help a party who has disregarded the law. A document which requires to be registered will not be given effect if it is not so registered.

There is a controversy on the point whether sanction is an essential element of the law or not.The majority of the jurists who follow Austin are of the view that sanction is an indispensable element of law.

The Historical Evolution Of theories of Sanction
The Roman province believed in the dictas in New Testament, which expressed the thought that the supreme power actually has received divine sanction by being permitted to prevail, that it has a rightful claim to obedience. These dicta are an evidence of the sentiments of roman provincial under the earlier empire .The prevalent answer to any question about the source of legal sovereignty and the moral claims of a sovereign to the obedience of its subjects was that god had appointed certain powers to govern the world and to resist would be a sin. It was admitted that there were two sovereigns and each was absolute-The pope in spiritual and the emperor in temporal matters.

However, late around, the sixteenth century various changes took place which shook the existing fabric of thought and belief. These included the crumbling of feudal structure of the society, pope's authority being met with a revolt and half the Europe was taken from his sway, a new sprit of inquiry, skeptical in its tendencies sprang up in Europe ( a characteristic of renaissance). Thus the traditional doctrine regarding the basis of authority which had been sufficient for the middle ages had faded, morals began to be separated from theology, people started questioning the basis of a kings' claim to obedience. A new explanation of the nature of political society was now needed and from this time onwards new theories of state power began to appear.

Austin
John Austin was a noted British jurist and published extensively concerning the philosophy of law and jurisprudence. His publications had a profound influence on English jurisprudence. They include The Province of Jurisprudence Determined (1832), and Lectures on Jurisprudence. John Austin is best known for his work developing the theory of legal positivism. He attempted to clearly separate moral rules from "positive law."Austin was greatly influenced in his utilitarian approach to law by Jeremy...
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