Hart

Question 1

What were some flaws in Austin’s command theory that were pointed out by Hart?

Answer 1

Hart pointed out that
1. Command theory only explained criminal laws
2. The sovereign was subject to authority and to its own authority. Eg. Parliament subject to judiciary
3. Laws which aren’t backed by sanctions like DPSPs couldn’t be explained by him

Question 2

What are laws according to Hart?

Answer 2

Laws are rules which create an obligation of the kind of “having an obligation”. Rules create obligations and provide a standard to decide the propriety of people’s actions

Question 3

Forms of obligations and austin’s failure

Answer 3

There is being obliged to and having an obligation to. Austin failed to consider that in certain situations obligations are followed not because of a sanction but because people think it’s the right thing to do. Having an obligation means people must act a certain way despite their beliefs and psychological factors. Being obliged to means there is a mandating operation that is powered by a sanction or consequence.

Question 4

What is the rule of recognition?

Answer 4

Rule of recognition is a secondary rule that determines which primary rule to follow. It essentially qualifies the primary rule. There are various primary rules about prohibited and allowed relationships among Hindus, among these only a few are recognised by HMA (secondary rule) and thus those recognised primary rule becomes law.

In the constitution, though the entire constitution may not be called the grundnorm (Acc to kelsen the grundnorm may not be edited without overthrowing it), certain articles such as the basic structure may be seen to be the RoR thereby qualifying the main grundnorm.