Hart

Question 1

What is Ordinary/Natural Language Philosophy?

Also known as Linguistic Philosophy

Answer 1

A philosophical school that treated traditional philosophical problems as resulting from philosophers forgetting what words actually mean in a language, and taking them in abstraction and out of context.

Question 2

What are power-conferring rules?

Answer 2

Rules that empower people to do something, such as the ability to use their property however they like or the power to terminate a contract.

Question 3

What are duty-conferring rules?

Answer 3

Rules that command people to do something. For example, a person must not harm another person.

Question 4

What is the external perspective?

Answer 4

A perspective of the law in terms of the negative consequences that may occur when one does not follow the law.

From the external perspective, a person is obliged to follow the law out of fear of punishment.

Question 5

What is the internal perspective?

Answer 5

A perspective of the law in terms of the reasons and standards behind law.

From the internal perspective, a person follows the law because of an obligation to do so. This obligation is a standard that has been internalised by members of society as a social fact.

Question 6

What are the 3 types of secondary rules?

Answer 6

Rules of Recognition. These are rules that determine which laws are valid.

Rules of Change. These are rules that describe the procedure to change laws.

Rules of Adjudication. These are rules that describe the judicial procedure to interpret and apply laws.

Question 7

Which secondary rule resolves the problem of staticness with primary rules?

Answer 7

Rules of Change

Question 8

Which secondary rule resolves the problem of uncertainty with primary rules?

Answer 8

Rules of Recognition

Question 9

Which secondary rule resolves the problem of inefficiency with primary rules?

Answer 9

Rules of Adjudication

Question 10

Which secondary rule resolves the problem of inefficiency with primary rules?

Answer 10

Rules of Adjudication

Question 11

What are primary rules?

Answer 11

Duty-conferring rules (eg. criminal law) and power-conferring rules (eg. property law, contract law)

Question 12

What is the ultimate rule of recognition?

Answer 12

The final rule of recognition that gains its authority as a sociological fact.

Unlike other rules of recognition, there is no rule that recognises its own legal validity.

Question 13

What, according to Hart, makes up a legal system?

Answer 13

“There are therefore two minimum conditions necessary and sufficient for the existence of a legal system. On the one hand, (the primary rule) must be generally obeyed, and on the other hand, its rules of recognition specifying the criteria of legal validity and its rules of change and adjudication must be effectively accepted as a common public standard of official behavior by officials”

Question 14

What is the difference between Kelsen’s Grundnorm and Hart’s ultimate rule of recognition?

Answer 14

Kelsen refers to Grundnorm as a logical construct.

However, Hart refers to the ultimate rule of recognition as a sociological fact.

Question 15

What is Hart’s analytic jurisprudence?

Answer 15

A focus on identifying the foundational components of a particular concept.

Uses hypothetical cases to reduce legal phenomena to its essential elements (rules of change etc. are all essential components of a legal system).

Question 16

What are the benefits of analytic jurisprudence?

Answer 16

It allows law to be studied and investigated like a science.

It allows a conceptual mapping of a “legal system” by exploring what its diverse, necessary elements are and how they connect to one another.

Question 17

What is the difference between ‘general jurisprudence’ and ‘specialist jurisprudence’?

Answer 17

General jurisprudence aka analytic jurisprudence seeks to find the core, basic features of a phenomenon. It focuses on parsimony, as opposed to complexity.

Specialist jurisprudence seeks to understand a complex field like criminal law. It focuses on complexity.

Question 18

What are the disadvantages of analytic jurisprudence?

Answer 18

It does not accurately capture how law operates in the real world.

Law is necessarily complex in its actual operation. While some legal features like punitive sanctions are not ‘essential’ in the Hartian sense, they are still crucial in shaping the actual operation of the legal system.

Question 19

How does Raz’s analytic philosophy differ from Hart’s ordinary language philosophy?

Answer 19

Analytic philosophy focuses more on logical connections.

Question 20

What are the 3 foundational elements of Raz’s rule of law, in terms of law’s ability to guide action?

Answer 20

1. All laws should be prospective (made aware to people), open and clear. People have to know what the laws are.
2. All laws should be relatively stable. If the law is constantly changing, people cannot follow it.
3. Law-making should be guided by clear rules. If the rules for making laws are opaque, then it will be difficult to know what the real laws are. (linked to problem of uncertainty with primary rules)

Question 21

What are the remaining 5 foundational elements of Raz’s rule of law, in terms of the correct application of law?

Answer 21

4. An independent judiciary. The judiciary can best resolve legal disputes if it is independent.
5. Laws should allow for natural justice. There must be a due process when someone’s rights have been infringed.
6. Judicial review. The judiciary must be able to review decisions made by other branches of government.
7. Courts must be easily accessible.
8. Crime-preventing agencies must not unduly use their discretion in a way that perverts the law

Question 22

What are the virtues of Raz’s ‘rule of law’?

Answer 22

1. It constrains arbitrary power
2. It facilitates positive freedom
3. It respects human dignity
4. By imposing these conditions (i.e the foundational elements), it prevents any legal system from becoming overly authoritarian.

Question 23

What is the essence of Raz’s rule of law?

i.e What is the relationship between law and the rule of law?

Answer 23

Just as a knife’s function is to be cut things, a law’s function is to guide behavior.

Therefore, the rule of law allows law to fulfills its direct function of guiding behavior.

Question 24

How does Raz’s rule of law help to minimise the dangers associated with law?

Answer 24

By requiring laws to be prospective (condition 1) it means that others can plan their affairs and live their lives in a predictable way, and this prevents governments from using law to oppress.

Question 25

Why is Raz’s rule of law ultimately a positivist idea?

Answer 25

The intrinsic function of law is to guide behavior. Just as a knife’s function is to be cut things, a law’s function is to guide behavior.

Just as a knife can be used to for bad purposes, law can also be used for good or bad pursuits.

Question 26

What are other benefits of Raz’s approach to understanding the rule of law?

Answer 26

Once we identify the rule of law with certain types of functions, then we can see that there are other social goals that may conflict with it.

For example, Raz differentiates the rule of law with Hayek’s democracy and Fuller’s morality.

Question 27

What is Hart’s pedigree theory of law?

Answer 27

Law gains its legal validity from being recognized by secondary Rules of Recognition.

Something has pedigree if it is recognised by the secondary RoR and is consistent with the ultimate RoR.

Pedigree is exhaustive of the law. If there is no rule at play, then the decision is a matter of strong discretion.

Question 28

What are the two points of view that Dworkin describes in his semantic critique of Hart’s methodology?

Answer 28

The external, sociological point of view. Observing the legal system as an outsider without participating in it. This is Hart’s approach.

The internal point of view. Understanding what goes on when people actually argue over law. This is Dworkin’s approach.

Question 29

What are the problems with primary rules?

Answer 29

Primary rules are static. They can’t adjust to new situations.

Primary rules are uncertain. It can be unclear if a rule is an official rule or not.

Primary rules are inefficient. It is not always clear how an abstract rule would apply to a particular (especially novel) situation.