Topic 4/5 - Hart Flashcards
(60 cards)
Who was H.L.A. Hart?
A seminal legal philosopher and Professor of Jurisprudence at the University of Oxford from 1954 to 1969.
What does Hart’s book The Concept of Law represent?
A modern restatement of legal positivism originally articulated by Bentham and Austin.
What approach does Hart emphasize in The Concept of Law?
A rigorous, ‘lawyerlike’ approach focusing on careful analysis of language and legal practice.
What is Hart’s aim in legal theory?
To provide a descriptive and empirical study of legal theory.
What is the significance of clear definitions in Hart’s methodology?
They are crucial for understanding legal concepts, despite some inherent ambiguity.
How does Hart challenge Austin’s theory of law?
By proposing that law is a system of rules, not merely commands backed by threats.
What are the two types of points of view Hart distinguishes?
- Internal point of view
- External point of view
What does the internal point of view entail?
Seeing law from the perspective of those who accept and use the rules.
What does the external point of view involve?
Analyzing law objectively as an observer without necessarily accepting the rules.
What are the three essential characteristics of a legal system according to Hart?
- Existence of rules
- Official recognition of those rules
- Continuity of legal order
What does the union of primary and secondary rules signify?
The structure of law where primary rules impose duties and secondary rules provide methods for handling primary rules.
What is the rule of recognition?
A fundamental secondary rule that determines what counts as valid law within a system.
How is the rule of recognition understood in terms of empirical nature?
It is based on practices accepted by officials and judges.
What philosophical challenges does Hart acknowledge regarding rule-following?
Challenges of vagueness and interpretation.
Who notably criticized Hart’s theory?
Ronald Dworkin.
What is Hart’s view on law as an empirical study?
He emphasizes description and analysis over prescription.
What does Hart assert about the nature of legal positivism?
Law is identified by social facts rather than moral content.
What are primary rules?
Rules that impose duties, obligations, or prohibitions on individuals.
What are secondary rules?
Rules about primary rules that provide mechanisms for creating, changing, and adjudicating primary rules.
List the three important classes of secondary rules identified by Hart.
- Rule of Recognition
- Rule of Change
- Rule of Adjudication
What is the role of the rule of change?
It allows the legal system to adapt by permitting laws to be introduced, amended, or repealed.
What is the role of the rule of adjudication?
Establishes who has the authority to resolve disputes about primary rules.
What must a legal system achieve for its existence?
Officials must accept the rule of recognition and valid legal rules must be generally obeyed.
How does Hart respond to Dworkin’s criticisms in the Postscript?
By reaffirming the descriptive nature of his theory and denying that legal theory should involve moral justification.
