Hart's Theory

Question 1

The practice theory of rules

Answer 1

1) Convergence in behaviour (e.g queuing)
2) Deviations are criticised (regarded as lapses and faults)
3) Deviation is a good reason for criticism
4) Internal aspect of rules (critical reflective attitude)

Question 2

Quick criticism of Hart’s theory

Answer 2

• obligations exist without social convergence
• Hart’s theory excludes obligations that are not practice-based
• concerns about morality???

Question 3

Why are primary rules no good?

Answer 3

1) uncertainty - what obligations do people have
2) static character - need a habit to make obligation
3) inefficiency - regarding settling disputes because no-one is in charge

Question 4

Secondary rules

Answer 4

1) Rule of recognition - “whatever the Queen enacts in parliament is law”
2) Rule of change - power to body to introduce new primary rules
3) Rule of adjudication - confers power to judiciary to make authoritative determinations

EXIST AS SOCIAL RULES (legal officials practice these 3 rules)

Question 5

Going round in circles?

Answer 5

Officials who “recognise” ROR need themselves to be defined by ROR?

• circular argument?
• you need a non-legal way of identifying officials

Question 6

Hart on discretion:

Answer 6

OPEN TEXTURE
- so linguistic utterances means every legal rule will have a core of certainty and a penumbra of uncertainty (cannot eliminate uncertainty)

• where rule cannot step forwards to claim its own instances, then judges have discretion

Question 7

Hart rejects:

Answer 7

formalism (no judicial discretion)
rule scepticism (full judicial discretion)
legal realism (courts have final authority)

Question 8

Principles are NOT legal standards?

Answer 8

• entail judicial discretion (doesn’t matter)
• binding as a matter of morality (judges take principles to be standards all the time)
• can be balanced and cannot be demonstrated to be sound (outside law we take principles to be valid even if no agreement)

Question 9

Principles are not like rules

Answer 9

applicable by virtue of MERIT not source

• about substantive merits or soundness
• can be weighed against each other (not all or nothing)
• can conflict
• e.g. lunch with friend (promise) weighed against saving a life (helping)

Question 10

PRINICPLES EXIST

Answer 10

Riggs v Palmer - “no man can benefit from his own wrong”

• statute is silent
• but applied it and they thought it was sound/applicable to case
• cannot be explained using ROR

Adverse possession - efficiency of law weighs heavier than “no man can benefit from his own wrong” in this context

Question 11

Pedigree thesis is FALSE

Answer 11

legal positivism does not prohibit moral tests of legality (Hart agrees)

Separability thesis - no necessary connection, unjust law is law but morals can make legal rules

Social facts thesis - content/existence of law ultimately determined by certain facts about social groups

Question 12

Exclusive legal positivism

Answer 12

pedigree thesis true

• but Dworkin’s social pedigree or they are not law
• court’s apply these principles over a period of time as basis of decision
• judicial custom is a type of ROR

(but judges sometimes apply seemingly novel principles )

Question 13

Shapiro

Answer 13

Hart’s legal rules are not all or nothing - Hart never said it was all or nothing

Question 14

Raz

Answer 14

Judges under legal obligation to apply extra-legal standards

Question 15

CONCURRENT MORALITY

Answer 15

Obligations exist INDEPENDENT OF PRACTICE

• THIS IS WHAT LAW IS
• allows for disagreement
• convergence may happen but thats coincidental
• behind each practice = a rationale (e.g. courtesy of queuing)
• allows for disagreements because people might disagree on what obligation best shows a rationale

Question 16

CONVENTIONAL MORALITY

Answer 16

Obligations dependent on practice

• do it because everyone does it
• obligations are practice dependent
• this is what HART’S THEORY is based on