Hart’s Theory of Law and the Yap Constitution

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Essay #: 064091
Total text length is 9,644 characters (approximately 6.7 pages).

Excerpts from the Paper

The beginning:
Hart's Theory of Law and the Yap Constitution
According to Hart's Theory of Law, does Yap have a legal system?
To understand whether Yap has a legal system, it is important to first understand the theoretical basis of Hart's Theory of Law. This theory is related to what is known as legal positivism. Under this theoretical approach, there is a need to recognize that there may not be an underlying connection between the conditions of law in a state or community and a sense of ethics or morality which is normative in that state or community. In this framework for understanding the law, because it is separate from what is believed to be right or wrong by the people of a state, it is created and enacted only by lawmakers. This point of view...
The end:
..... needs to be able to change with the times.
Although the ways in which the legal system of Yap operates seem vague and oppositional, as noted by Tamanaha, the system is not much different from those of other nations. Every country has a disconnect, on some level, between the interests of lawmakers and those of the people of the country. Hart’s theory of legal positivism can, in this way, be applied in all of the different jurisdictions of the world.
References
Hart, H.L.A. “Positivism and the Separation of Law and Morals.” In Readings in the Philosophy of Law, K. Culver, ed. Toronto: Broadview Press, 2008.
Tamanaha, B. “The Role of Custom and Traditional Leaders Under the Yap Constitution.” University of Hawaii Law Review 10 (1988): 81-104.