Hart Legal Positivism Flashcards
What is Hart’s main claim?
The law is the union of primary and secondary rules.
What problems does Hart have with Austin’s theory?
- He conflates being obliged with being obligated
- He over-relies on criminal law, distorting the nature of a legal system
- He focuses too closely on coercive aspects of a legal system
Describe the difference between an External vs. Internal point of view, according to Hart.
An external POV observes only the behaviour being displayed; law as a tool to predict punishment.
An internal POV observes the obligations and agreements that have been made within a legal system. It provides a standard to judge our own and others behaviour.
How does Hart understand promises?
Promises are agreements to behave in a certain way irrespective of the content of the agreement; duty is generated simply by the act of agreeing to do so.
Explain the chess analogy.
Hart uses the game of chess as an analogy of legal obligation. Individuals mutually agree to abide by certain rules about what constitutes a legal move. If they break these rules, the purpose of the game is lost. Similarly, we mutually agree (implicitly) to abide by certain norms and standards to ensure cooperation and coordination of a society. This social contract is what generates legal obligation.
How do legal obligations differ from moral obligations?
Legal Obligation: A simple obligation to do X. They can be trivial, changed, and don’t revolve around matters of deep importance such as ideas of right and wrong (though they can).
Moral Obligation: Range over matters of profound importance (human wellbeing, notions of the just, right, and good.
What is a secondary rule, according to Hart?
Rules about rules; used to interpret and understand primary rules (meta-rules).
List and describe the three meta-rules, according to Hart.
- Rule of Recognition: allows us to decide whether a statute is a part of the legal system
- Rules of Change: provide particular ways of changing/amending the laws and establish valid ways to enact or repeal laws
- Rules of Adjudication: the process of adjudication (courts)
What problems do secondary rules have?
Particularly the Rule of Recognition, from a positivist lens, we cannot validate the source (pedigree) of this law.
These laws are not used by the citizens of the society, but only those involved in the creation and alteration of laws (e.g. judges).
What two conditions are necessary for the existence of a legal system, according to Hart?
- Its rules of recognition specifying the criteria of legal validity
- Its rules of change and adjudication must be effectively accepted as common public standards of official behaviour by its officials
How does Hart respond to criticisms about meta-rules?
Though the RoR cannot be validated through pedigree, all we would require is descriptive regularity; that people in society regularly follow this rule.
Why aren’t primary rules sufficient for a legal system?
- Uncertainty: Is there really a rule that prohibits X?
- Static/Rigid: Sometimes we need to develop new rules (e.g. climate change and pollution)
- Inefficiency: How do we settle conflicts?
Explain the bank robbing example.
If someone asks you to rob a bank with them, and you agree to do so, according to Hart, you are obligated through the act of promising to follow through with the bank robbery. The obligation is generated regardless of the morality of the action.
What is the importance of secondary rules?
Secondary rules allow us to validate, create, modify, and settle disputes about primary rules. They do not impose obligations in the manner than primary rules do.
What is a legal system’s function, according to Hart?
An institution that allows us to cooperate and coordinate a society that is not solely based in coercive power and threat of punishment.
