what is hart’s definition of law?
‘a legal system exists when there is a union of primary and secondary rules, where the majority obey the primary rules and the officials take the internal view to the secondary rules’
Difference between a habit and a rule?
Hart’s example: habit = going to the cinema, (social) rule = not wearing hats in Church. Deviation from a habit need not be a matter for any form of criticism but where there are rules lapses and faults are open to criticism which is seen as legitimate and justified
What is a critical reflective attitude?
With a rule critical: if there is deviation from that standard there can be criticism and this criticism is seen to be legitimate and justified reflective: awareness of the standard as standard
What is a coercive order?
Hart example is of a gunman who threatens to shoot the bank clerk if he does not hand over the money - ‘being obliged’ - depends on certain beliefs e.g that you will be shot if you do not hand over the money
what does ‘under an obligation’ mean?
beliefs and motivations are not sufficient to warrant the statement that he had an obligation - need contexts e.g. the existence of a rule
difference between a prediction and a rule
prediction = a red light is a sign that others will stop rule = a reason for stopping when the light is red is a standard of behaviour and an obligation
internal point of view
- ‘critical reflective attitude to certain patterns of behaviour as common standard and that this should display itself in criticism (including self-criticism), demands for conformity, and in acknowledgement that such criticism and demands are justified, all of which find their characteristic expression in the normative terminoly of ought, must, and should, right and wrong.’
- officials, lawyers private people hold an IPOV
criticism of the IPOV
- Neil MacCormick: argued that there were three POVs - extreme external, non-extreme external (only cognitive not volitional) and internal (cognitive and volitional)
- Finnis: argued that there must be some form of moral judgment going on in the IPOV - must have a moral attitude not merely a conventional one to the secondary rules
require humans to do or abstain from certain actions whether they want to or not - impose duties
they provide that humans may do or say certain things, confer powers and can be either public or private
rule of change
‘empower an individual or body of persons to introduce new primary rules for the conduct of the life of the group, or of some class within it, and to eliminate old rules’
otherwise society is too static
rules of adjudication
‘empower individuals to make authoritative determinations of the question whether, on a particular occassion, a primary rule has been broken’
otherwise society is too inefficient
rule(s) of recogition
‘this rule will specify some feature or features possession of which by a suggested rule is taken as a conclusive affirmative indication that it is a rule of the group to be supported by the social pressure that it exerts’
otherwise there is too much uncertainty as to what standards apply
are secondary rules power-conferring?
- hart’s distintion between primary and secondary rules is that the former are duty imposing and the latter are power-conferring
- BUT public secondary rules also impose duties upon officials
- thus they are secondary in the sense that they are ‘about the primary rules’ - they ‘specify the ways in which the primary rules may be conclusively ascertained, introduced, eliminated, varied’
does hart see primitive communities as having law?
no - a union of primary and secondary rules: ‘ it is plain that only a small community closely knit by ties of kinship, common sentiment and belief, and placed in a stable environment, could live successfully by such a regime of unofficial rules’
criticised by anthropologists for this view
what did hart think of international law?
- argues that international law is not law because of its lack of organised sanctions and not because a state sovereign cannot be bound by law (like austin)
- focus is on municipal legal systems
- international law is not yet a legal system as it does not have secondary rules
- hart was writing at a time of v settled law and there was not much international law
definition of the rule of recognition
the rule of recognition is for the conclusive identification of the primary rules of obligations - can be simple or complex
what is the RoR in the UK?
in the uk - ‘what the queen enacts in parliament is law’ but also recognises common law - precedent as law
functions of the RoR
- helps cure the defect of uncertainty
- unifies the rules into a system (of rules valid under RoR)
Characteristics of the RoR
- its existence is shown in the practice of officials
- its existence is a matter of fact
- it is supreme
- it is ultimate
does the RoR include moral standards
- inclusive positivism - it may include moral standards (e.g. the american constitution)
- exclusive positivism - it necessarily does not include moral standards
- hart is an inclusive legal positivist
criticisms of the RoR
- Hart is unclear whether the RoR is a duty imposing or a power conferring rule
- is its existence a matter of fact?
- officials are not clearly defined
- what about non-officials?
what does hart borrow from bentham and austin?
“the existence of law is one thing; its merit or demerit another” - the separation thesis
what does hart does not borrow from austin and bentham?
law as a command
how does sharpio resolve hart’s vagueness about who is official?
- RoR directed at judges
- RoC and RoA directed as official parties who are empowered by those rules
minimum content of natural law
certain contingent facts about human nature ‘afford a reason why, given survival as an aim, law and morals should include a specific content’ e.g natural neccessities restricting the use of violence
what does finnis say about hart’s theory?
wrong central case: a non arbitrary theory of law must be built on practical reason that is ITSELF answer to why we need law - the problem with Hart’s theory is not the conclusions but the absence of basis for arriving at those conclusions
problems with finnis critique of hart
- if the law is built upon moral philosophy if one doubts the existence of moral truths or doubts to know these truths
- NB hart does not defend his position by reference to moral skeptism
- two separate conversations about a shared conception of what law is and the moral good it may serve
The problem with LP is that it cannot make sense of our ordinary understandings of law
Who was Dworkin?
an american lawyer, academic and legal theorist who succeeded Hart’s chair at Oxford
What type of jurisprudential theory did dworkin have?
Nobles regards him as a modern natural lawyer but it is easier to define him as an anti-positivist
what was Dworkin’s theory based upon?
he believed that not all law was good but it was identified through moral/legal reasoning
three aspects of hart’s theory that dworkin attacked
- that the law consists of rules
- that whilst rules apply clearly in some cases there are also situtions where the interpretation is a matter of choice
- in making these choices, judges ought to have regard to moral values but there is no guarantee of this
dworkin reponse to these three issues
- that the law does not only consist of rules but of principles
- that principles can operate even when rules are absent or unclear
- that judges are not free to choose in hard cases
- that when we recognise the role played by principles, we cannot accept the rule of recognition
rules v principles
- the example of riggs v palmer - grandson who killed his grandfather was not allowed to inherit his farm under the principle that no man should benefit from his own wrong
- no man should benefit from his own wrong is not a rule as it does not apply every time someone benfits from their wrong
- rules: the one q is are the facts present or not and then it is applied, whereas principles jabe weight but they do not detirmine the issue
- when there is a conflict of principles, one is overweighed but it does not disappear
- when there is a conflict of different rules they have to be reconciled - one is accepted and the other is overuled or incorporated into the other
does dworkin challenge hart’s theory?
many hartians e.g raz, maccormick accpet priniciples within a positvist view - so has dworkin just supplemented hart’s thesis??
can legal principles be identified by a rule of recognition?
if legal principles can be identified through precedent then they can be part of the rule of recognition - hart conceeded to this in his post script
how does Dworkin think legal principles are developed?
thinks they are developed through legal argument - all law is legal argument
what does wendel say about citizens accepting IPOV?
- conceptual reasons: ‘incoherant to regard the RoR as imposing no obligation’ - a bad citizen may not care about the law but accepts it as a normative standard
- normative reasons: following legal norms are beneficial to citizens