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By Roscoe Pound

This felony advisor is a written model of lectures introduced prior to the legislations university of Yale college as Storrs Lectures within the university 12 months 1921-1922.

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Particular Norms in Sanctions and Remedies ‘Creative’ orders involve a second, very important mode of particularity. Once a criminal conviction is entered, it may take a particular decision of the court to specify the punishment (often within a range set by legislation). This second role – determining sentence within a range – is not ancillary; at least, not in the sense that it identifies and records the effect of a general rule. Very typically, at least for most serious offences, the court’s sentencing decision is a creative decision, authorised by a general rule.

Along with rules of recognition, change, and adjudication, he should have pointed out the central role, in any conceivable legal system, of executive rules – rules authorising action (juridical and non-juridical) on behalf of the public. The Concept of Law 39 does not mention the essential role in law of the executive functions of the state. This lacuna is understandable, since the legislative and adjudicative functions are paradigmatically legal functions, and we tend to think of legislatures and courts as the branches of government responsible for the law.

The generality of law is best understood in light of the necessary particularity of law, 34 and the combination of generality and particularity is itself a necessary feature of a legal system. In section III, I will discuss what ‘necessary’ means in these claims. It is a popular idea that legal theorists should not try to identify necessary features of law; I think that the popular idea is a mistake. In section IV, I will conclude by arguing that Hart’s purposes call for value judgments about law.

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