Lecture 6 Flashcards
Professor Hart def of law
Hart defined law as a system of rules, a union of primary and secondary rules,
positivist theorists distinguish law and morality as
law is what is and morality is what ought to be
recognise separation
natural law theorists
higher principle behind the legal system.
Fuller is
natural law theorist
critique of legal positivism
austinian law of command is inadequate
2nd critqiue of legal positivism
problem of penumbra
Problem of penumbra
occasionally when attempting to determine law, the established meaning is inadequate or obsolote, so judges must interpret
what does problem of penumbra say
even positivist judges are what law must mean by what it ought to mean
problem of penumbra solution to Hart
What ought to be is not seen as a moral sense, does not fall outside law
It is understood within a rational legal framework
Third critique
internally consistent morally bad law
e.g. german nazi regime.
So you need higher principle behind the legal regime otherwise no way to condemn these morally bad regimes
Hart defends…
minimum content theory of natural law
Minimum content theory of natural law
to overcome morally bad law, hart allows certain influence of morality within the legal system
Only so much moral infiltration to maintain internal consistency of legal system
Inclusionary positivism and exclusionary positvisim
Exclusionary positivism
Inclusionary positivism: allows certain level of morality into legal system - hart shows some steps
Exclusionary positvism: no morality
Fuller is unclear for Hart
the distinction between what is and ought to be is really about morality.
Hart says when deciding what ought to be
from within the legal system framework. Legal framework is freestanding
Fuller says what ought to be according to natural law
is about preserving fidelity to law itself - beyond the law. Step back from legal system. Legal system ought to have fidelity
This doesn’t come out of law itself. something you appeal to make law consistent.
What does Fuller say about the way legal positivists conceive morality
That legal positivists accuse natural law theorists being concerned with preserving precious moral principles
Content of morality for fuller
Fidelity to law is internal to law is actually that moral source external to law that informs legal system.
Fuller’s response to hart
distinction
external morality
Moral suggestion that one must follow the law.
Some people conflate law and morality.
e.g. legal must be moral, be moral to be
To think natural law theorists are speaking about law and morality, this is external morality
Fuller’s response to hart
distinction
Internal morality
It is not external morality, rather internal morality - conscience
believes legal positivists like Hart recognise this internal morality “principles of natural justice” “justice in the administration of laws”
Positivists accept
principles of natural justice like
Cannot be judge and defendant.
Both parties must be heard
Because positivists accepts principles of morality
Fuler argues this is a way for morality to enter into legal positivism
Problem of the penumbra
what does a particular word mean?
You go from what is to what ought to be
When should one be punished accoding to natural law theorists
violate basic principles of human conscience e.g. woman of nazi reported her husband for criticising hitler
How does Hart address problems of command of law?
Distinguishes primary and secondary rule
Primary rule fit into Austinian sense
Secondary rule = operation of primary rule e.g. rules of adjudication, rules of recognition that binds that binds public officials
Morally bad law, though valid
do not have to be obeyed. obedience is a choice
Fuller describes 8 principles of inner morality of law
- Existent, not ad hoc (cannot make up in process already be there)
- Promulgated
- Prospective not retrospective
- Clear and comprehensive (make sense in itself and broader legal system)
- various aspects must be consistent e.g. fam law consistent with crim
- possible to be obeyed
- constant or relatively long lasting
- applied and administred as stated
To sum, for fuller
law must serve a purpose. Legal system points to a higher purpose which is to achieve social order by subjecting system of law to moral scrutiny (conscience; intenral morality)
Failure to comply with principles could make certain laws invalid
Fuller seems to claim that
Hart’s minimum content of morality in law is common meeting ground
Natural law theory
laws are pre-existing. role of human to discover this
rules and standards are derived from facts about our nature and our world; rules we follow are derived from natural laws
Greek natural law theorists
Christian natural law theorists
Laws already there, humans cannot create it
Created by God.
critique of positive law
how does sovereign decide to pass on law if not guided by morality
What positivism does not do
distinguish between good and bad, only answers validity
Natural theorists argue that there is no rule governing law making
Hart says
The rule that governs law making is socially accepted
but what if there are protests etc.
In contrast to natural law theorists, legal positivists assert that
laws are merely a compendium of rules designed by a sovereign (usually the state) for the regulation of society. It is NOT, they suggest, a universal moral code to which we must submit
, laws retain their validity
irrespective of their perceived (im)morality, so long as it is properly made (pedigree) by the recognised law-making authority.
People do not obey the law because
People do not obey the law because they feel morally inclined to do so, rather because they respect the legitimacy of the law-making body and fear that the state’s coercive forces (police, prosecutors, etc.) will punish them if they do not.
Problems raised by legal theorists
Must we obey all laws simply because the state tells us to? What if the law calls for behaviour that we consider immoral? How do we reconcile our legal duty with our moral preferences?
Problems hart had with Austinian theory of law
- erroneous assumption that all legal rules make commands or impose sanctions. includes powers and privileges e.g. right to free speech
there are laws that confer powers and are not backed by sanctions
Law is based on acceptance not punishment for disobedience.
Two types of laws according to hart
primary rules
citizens are bound by rules, not because state will punish if disobedient, they accept that it is a sensible way of regulating. Right thing for them and others. accept their duty to obey the law
- impose obligations. regulate behaviour directly by telling us what we ought and ought not to do
Law is based on acceptance not punishment for disobedience.
Two types of laws according to hart
Secondary law
confer power rather than impose duties
- rules of adjudcation, rules of change and rules of recogntion: acceptance of law by society
Law and morality
moral and legal rules may overlap. But at the same time, legal rules may not have any moral basis
For hart, legality does not stem from
morality, stems from social practice.
Critique of morality by Hart when a judge
- resorts to morality to issue a ruling, the content of law becomes arbitrary
- Subjectivity of morality. Conflicting morals. Whose morality is the judge to apply? their own, parties, government?
Relvance of the Hart and Fuller debate
The debate as to whether law should be mutually exclusive date has not ceased and is still debated today
Some of the most recognised and influential natural law theorists
including Fuller, Aristotle, Plato and St. Thomas Aquinas argued that law is legitimate only if it promotes the common good i.e. legality corresponds with what is morally right and just
The antithesis to natural law theory is the legal school of thought known as legal positism. Legal positivists such as
H.L.A Hart and Thomas Hobbes argue that law is only legitimate if it has been enacted through the proper channels by someone with absolute power. Content of law is irrelevant
What did Hart advocate
In 1961, the father of legal positivsim, H.L.A Hart, he advocated for a separation between law and morality. Clear distinction between what law is and what it ought to be
Legal positivisim
when does law cease to be law
Cease to be law when it is invalid, when it is repealed,
Not when it receives moral criticisms
Hart
use of terms such as rights and duties
Doesn’t have to do with morality, do not implicate human behaviour as good or bad
Firstly to understand hart’s perspective legal theory and philosophy
we must first understand his disatisfaction of John Austin’s command theory, find it inadequate
Hart likened Austin’s theory to
Role of gunman at the bank who forces us to obey. Obedience to law is different
Hart demonstrated clear distinction between
What law is and whether a law is just or moral
Fuller (Natural Law theorist) maintains
To call the Nazi system ‘legal’ and to call its rules laws’ was a false description of what they were. They were instruments of an arbitrary and tyrannical regime.
Hart and Fuller agree that
immoral and unjust legal systems are unlikely to be stable and long-lived. Lacking morality and justice, cannot command the allegiance of the people and must depend upon repression. When the repressive regime falls, its system falls with it.
grudge informer
to cover events where one person reported another for trivial crimes, which nevertheless carried the death penalty (for exampled speaking against the Fuhrer or the government), to settle feuds or to get revenge, but effectively using the state machinery to try to commit murder.
grudge informer facts
- German woman was prosecuted for offence of illegally depriving her husband’s liberty in 1949 by German Court
In 1945, she denounced her husband to the authorities in accordance with the Nazi laws for deorogatory remarks about Hitler. This was a death penalty. She had no legal oblgiation to denounce him. Husband found guilty and sentenced to death
Nazi laws according to fuller
laws were used as an instrument to uphold tyrannical regime
When is law invalid according to Fuller
law is subject to internal morality which consists of 8 principles.
in passing a law, it cannot transgress any of those 8 principles
grudge informer
defence
she had acted in accordance with Nazi laws
grudge informer
Court found
- The Nazi laws were “contrary to the sound conscience and sense of justice of all decent human being”
grudge informer
Hart’s response
shows the triumph of natural law.
When did Fuller publish his response
in 1958
natural theorists believe that law
should be moral itself + contain rules to prohibit immoral behaviour
Why have decisions that have decided based on morality been controversial
Morality is a private, individual choice.
Why do we obey law according to Hart?
Not sanctions, but because we accept it. We believe it is necesary to maintain social order in society. Great social pressure on primary rules
convenient way of organising society?
societies possess secondary rules
rule of recognition
overcome uncertainty under primary rules regime alone
- A rule is a (valid) law if it is created in a certain way by a certain body consistently with certain standards, according to the terms of the legal system’s rules of recognition (public and constitutional law).
- basis for legal validity
- distinguis legal rules from other rules
all primary rules flow from rule of recognition
societies possess secondary rules also b/c
Static
secondary rules of change overcome the static nature of primary rule
- Enable the effective creation, amendment, and repeal of laws where appropriate.
- Includes public and private power-conferring rules.
- confer legal power on persons, thus enabling them to
societies possess secondary rules also b/c
Inefficient
simple society with only primary rules would be inefficient when there’s disputes on whether rule is broken
- constitute courts and other law-applying organs and regulate their activities
- addresses what happens when rules are broken, who, the procedure
- Such rules may also regulate sanctions for breach of primary rules. (rules of enforcement/sanction)
Focus on legal positivism is
law as a social fact, not based on natural or divine law
Methodology
nIn inquiring into the question he engages in analytical (semantic) and sociological jurisprudence .
why is it jurisprudence
clarifies the general framework of legal thought and practice rather than the criticism of law or legal policy.
The classical positivist model holds that a legal system comprises:
- Some person or body of persons,
- Issuing general orders,
- Backed by threats/sanctions,
- Which are generally/habitually obeyed,
- It must be generally believed that these threats are likely to be implemented in the event of disobedience (fear of sanction),
- This person or body must be internally supreme and externally independent (ie sovereign).
Hart’s critique of Austin
-nature of sovereignty
fails to explain durability of law in transition and persistence
The continuity of the authority to make law possessed by a succession of different sovereigns for whom there is no habit of obedience at the time of their accession;
nThere appear to be rules of succession that transcend any given sovereign;
one of hart’s critique of Austin
Power-conferring rules are not orders backed by threats.
Critique of Austin
Succession of Law-making Powers
- The continuity of the authority to make law possessed by a succession of different sovereigns for whom there is no habit of obedience at the time of their accession;
- There appear to be rules of succession that transcend any given sovereign
Critique of Austin
Continuity of law
Laws can outlive their makers and those who have habitually obeyed them
Hart suggests that people today do not have a habit of obedience to lawmakers from hundreds of years.
The best explanation of continuity, Hart thinks, is an accepted constitutional rule conferring authority on the laws made by past, present, and future legislator
Austin critique
Legal limits on law-making
Under Austin theory, sovereign has unlimited law making power
Austin critique
Legal limits on law-making
Under Austin theory, sovereign has unlimited law making power
Critique of Austin
The normativity (internal aspect) of legal obligation
internal - Rule as understood and used by a member of the society as a guide to their conduct.
laws as providing reasons for compliance but also seeing laws as something which ought to be obeyed or respected
Social Rules
nHart elaborates the nature of legal obligation by linking the concept of obligation to the concept of a social rule
Conditions of existence of a rule
external
Convergence of behaviour (external aspect);
Criticism/sanction for breach of certain behaviour;
Conditions of existence of a rule
normativity
An element of normativity (internal aspect) in the following of rules and sanctioning of deviation:
the rule is treated as a standard for the behaviour of oneself and others; and
the criticism/sanction is regarded as justified (motivated by good reasons).
Rules impose obligations when:
Serious social pressure exists to conform:
Rules impose obligations when:
second reason
nRule is thought important because it is believed to be necessary to the maintenance of social life or some highly prized feature of it.
Rules impose obligations when:
while benefiting others, conflict with what the person who owes the duty may wish to do (involves sacrifice or renunciation; a conflict between duty and self-interest
Rules impose obligations when:
the general demand for conformity is insistent, and
the social pressure brought to bear upon those who deviate is great.
Hart conceives of law as a
system of norms, or as he says, rules. More specifically, he conceives of law as a system of primary duty-imposing rules and secondary rules of change, adjudication and recognition
The secondary rules, on the other hand, are
The secondary rules, on the other hand, r used to identify, and to create, change, and extinguish primary rules, and to set up legal institutions that apply the primary rules
the command theory leaves out an explanation for how, in modern representative systems
the rule-makers who issue the commands find themselves bound by the laws they make.
They are not above the law
Hart’s internal perspective to the law.
existence of the rule provides an obligation for action
Hart’s sporting competition metaphor for thinking about laws
- Rules can direct the players to perform or refrain from performing certain actions + give directions to the umpire or score keeper
- players feel themselves bound by the rules
- The rules themselves provide a reason to act, not just the fear of punishment as in the command theory.
According to Hart’s definitions, primary rules either forbid or require certain actions and can generate duties or obligations. For a citizen with an internal perspective to the law
the existence of a primary rule will create an obligation for him or her to behave a certain way
Hart believes that rule of recognition is the
rule of recognition tells us how to
Hart believes that rule of recognition is the most important. The rule of recognition tells us how to identify a law.
most important function of the rule of recognition is
allows us to determine the validity of a rule.
Since the rule of recognition is the standard which we use in order to judge the validity of other rules, it cannot itself have a validity test.
Validity is what allows us to determine which rules should be considered laws, and therefore, which rules should create obligations for citizens with an internal perspective to the law
According to Hart, validity is not determined by whether
obeyed, its morality, or its efficiency, but by whether it fits the criteria set forth by the rule of recognition
Shortcoming of Hart’s theory
once a rule is established according to the rule of recognition, whether by the legislature or by judicial precedent, it becomes part of the legal pedigree and there is little further uncertainty about its meaning or validity.
Hart points out that his theory enables the identification of the law
Dworkin
Hart points out that his theory enables the identification of the law based on a relatively straight forward application of a rule of recognition.
Dworkin’s theory on the other hand, requires a complex moral calculation and interpretation to identify even the simplest rule as a rule of law
focusing only on the commands and actions of a sovereign in imposing sanctions, the command theorists have ignored the internal aspect which characterises all law.
distinction by hart between two aspects of law
Hart explains there is a distinction between the two aspects of law, ‘to be obliged’ thus to act in a certain way because of some threat or by force, such as when an armed man orders a person to hand over money, and
‘to be under an obligation’ thus to feel a sense of obligation to obey the law i.e. act in a certain way without some external factors such as threat or sanctio
the command theories try to explain the law only in terms of the former, therefor they are inadequate, because the law has both an external and an internal fashion to induce compliance.
The problem in Kelsen’s theory, is that the law directs officials to punish those who don’t comply with the rules instead of
providing guidance for those who want to live according and under their obligations.
the internal point of view’ is actually the
practical attitude of rule-acceptance
Hart the ‘the internal point of view’ is actually the practical attitude of rule-acceptance. It happens when
people accept or endorse a convergent pattern of behaviour as a standard of conduct towards a social rule.
According to Hart, if someone accepts the rules
have taken the internal point of view. In reverse, if someone does not accept the rules, either because they accept the bad man point of view, or because they are just observing, they don’t take a practical attitude at all, it is just the external point of view.
A crucial difference from a social habit and a social rule is that
hat habit lack criticism from others in a group when the convergent behaviour is deviated from.
The secondary rules fall into three categories which remedy what
Hart portrays as three “weaknesses” of primitive law
Primitive systems also are very
slow to change and adapt their laws.
Developed or evolved systems have rules of change which counter this inflexibility.
- They make it explicit how the law can be changed. These are legislative procedural rules
According to Hart, rules are conceived and spoken of as imposing obligations when
the general demand for conformity is insistent, and the social pressure brought to bear upon those who deviate, or threaten to deviate, is great.
The internal aspect. Rules are viewed as
standards governing behaviour, and therefore, deviation is a reason for criticism
For Hart, concept of rules encapsulates not only convergence of behaviour (the external viewpoint), but also the convergence of attitudes.
Using the internal viewpoint, people within the legal system
judge, evaluate and criticise their conduct and that of their peers.
Having developed this concept of the internal aspect of rules, Hart
art now ascribes to it its place in a legal system. Law is a union of primary and secondary rules
Hart argues that it is a sufficient condition that the citizenry, which is subject to the primary rules
need only take an external viewpoint towards primary rules.
The rule of recognition itself
an neither be valid nor invalid. The proof of its existene is in the fact of its acceptance.
There are two ways of looking at rules: the external point of view and the internal point of view
The external point of view
. The external point of view merely analyses the convergence of habit and behaviour.
The internal point of view looks at rules as standards governing behaviour, and endorses them.
. For a legal system to exist, it is a sufficient condition
that citizens take an external point of view towards primary rules; and a necessary condition that officials take the internal point of view towards secondary rules
social habits characterised by
convergence of behaviour
Normative quality of rules
difference between acceptance of rules and habitual obedience
being obliged
having an obligatoin
acting or refraining b/c of fear of punishment
being requrired to do or forbear from doing something based on authoratitive set or norms
