Lecture 7 Flashcards
Two necessary conditions for the existence of a legal system:
For primary rules to exist there must be at the very least:
Relatively widespread compliance by the population at large out of some or other motivation (acceptance, fear of sanction, habit or some combination of these);
Some portion of the population adopting an internal attitude of acceptance towards the primary rules (otherwise why would they exist at all in the society?)
For (public) secondary rules to exist there must be at the very least:
Relatively widespread compliance by the officials subject to them out of some or other motivation (acceptance, fear of sanction, habit or some combination of these);
Some sub-group of officials adopting an internal attitude of acceptance towards the secondary rules.
Wauldron account on Hart
Hart on the benefits of law
Whether law overcomes uncertainty, stasis and inefficiency in times of environmental and social change or transition depends on how effectively the legal system is managed and maintained
Wauldron account on Hart
Is Hart saying that a society with law is always better off than a society without law
it depends on the circumstances facing the society. In times of transition or change, law helps a society cope in a way that a system of primary rules does not and cannot
Hart and Waldron on the dangers of law
Law as an instrument of elite or official power
Waldron argues that not only might a legal system which fits Hart’s theory of a legal system be unjust but that the risk of injustice might arise out of primary and secondary rules
Hart and Waldron on the dangers of law
Law as an instrument of elite or official power
Waldron argues that not only might a legal system which fits Hart’s theory of a legal system be unjust but that the risk of injustice might arise out of primary and secondary rules
Two necessary conditions for the existence of a legal system:
For primary rules to exist there must be at the very least:
Relatively widespread compliance by the population at large out of some or other motivation (acceptance, fear of sanction, habit or some combination of these);
Some portion of the population adopting an internal attitude of acceptance towards the primary rules (otherwise why would they exist at all in the society?)
Hart and Waldron on the dangers of law
Law as an instrument of elite or official power
primary rules
the primary legal rules of a society may disadvantage some group within that society (including the majority of the people).
Hart and Waldron on the dangers of law
Law as an instrument of elite or official power
secondary legal rules
Secondary legal rules enable the creation of a class of powerful institutions and officials (state apparatus).
These institutions and officials may use their power (either on their own behalf or on behalf of others) to maintain the structures of injustice which the primary laws generate.
Hart and Waldron on the dangers of law
Law as an instrument of elite or official power
secondary legal rules probl
A society with (public) secondary legal rules in addition to primary rules will be better able to cope with challenges than a society without them.
But the addition of these secondary rules will also enhance the ability of an unjust society to cope with challenges to its injustices and enable the social relations of injustice to flourish
Law (via secondary rules of law-making and law-changing and law-enforcement) may be used by an unjust regime to:
- Raise or develop an army or police force to be used against subjects
- Deny subjects access to food and resources
- Override pre-existing moral rights of subjects
- Dispossess subjects of land or other forms of property
- Facilitate more effective modes of oppression against subjects (including genocide)
Another of the risks of a legal system is that the introduction of law
increases the risk of the majority of the society not knowing any longer what the rules (primary or secondary) are that govern them.
Another of the risks of a legal system is that the introduction of law
increases the risk of the majority of the society not knowing any longer what the rules (primary or secondary) are that govern them.
Another of the risks of a legal system is that the introduction of law increases the risk of the majority of the society not knowing any longer what the rules (primary or secondary) are that govern them.
how
the rise of secondary rules a more complex legal system may emerge which does not demand this immediate presence in the lives of the majority of people
As new primary rules are created according to the secondary rules and at an efficient and adaptive rate, many citizens become alienated from the laws governing them.
Another of the risks of a legal system is that the introduction of law increases the risk of the majority of the society not knowing any longer what the rules (primary or secondary) are that govern them.
Popular alienation from law implications
increases the likelihood that the people comply with the law not out of acceptance (which entails a high degree of knowledge of the rules) but by habit or fear of sanction (which does not entail a high degree or any knowledge of the rules).
+
Those involved in the creation of laws ensure that the laws reflect their own interests to some degree and those who are not involved are left at the mercy of those who are
Another of the risks of a legal system is that the introduction of law increases the risk of the majority of the society not knowing any longer what the rules (primary or secondary) are that govern them.
Popular alienation from law implications
lawyers
Lawyers may mitigate the effect of the alienation of the people from the law.
Hart is not arguing that all legal systems or any given legal system
must be oppressive or unjust (as Marx does). He is just pointing out that they might be.
According to Waldron’s reading of Hart, a natural law theory committed to equating the term “law” with “morally good law”
heightens the risk of the theorist and its adherents (including the public at large) thinking that all law and legal systems are to some degree morally good.
According to Waldron’s reading of Hart,
To adopt the natural law view
is to risk political quietism in relation to unjust laws or legal systems
According to Waldron’s reading of Hart,To adopt the positivistic view
nis to enable and encourage a critical vigilance of laws and legal systems.
Hart argues that danger of legal system is that
may use its power oppressively disregarding the wellbeing of the society
Waldron’s account of hart, he argues that `
hart’s illumination of costs into legal system shows legal system might as well be unjust
Primary rules simply exist
as widely accepted norms within a society, practiced within the community Does not need to be codified
A society where the rules is entirely contingent upon being widely practice in society (primary rules) according to Hart
face uncertainty, inefficiency, no control to change the rule
Importance of rule of recognition
crucial for the legal system b/c without it, no definitive way to differentiate legal rules from moral rules sand social customs
Secondary rule of change
enable society to alter rules as demand of the legal system change. ensure the legal system is flexible and is able to adapt
The definition of a legal system by Hart
contains no reference to moral principles. Rather, Hart develops a concept of law that tries to explain legal systems through the primary and secondary rules
Waldron’s We All Like Sheep?
examine’s Hart’s account of immoral or unjust legal systems.
Waldron’s We All Like Sheep?
What does he say
legal system suffers serious distortions when accompanied with wickedness
A contemporary reading of Hart
his accounts of the potential of legal system becomes grimmer as even an extremely ovine society can qualify as a legal system
A contemporary reading of Hart
Ovine Society
In an extreme case, officials might accept or use the criteria of legal validity .
Society which this is so might be deplorably sheeplike , the sheep might end up in the slaughter house
A contemporary reading of Hart
using the ovine society example, what does Hart suggest
legal system is not necessarily synonymous with increased freedom and respect for individual systems
The ovine society reveals that the legal system does not need to protect the best interests of those it commands
A contemporary reading of Hart
Waldron argues
that’s hart’s account of a legal system allows us to conclude that the ovine society is a normal instance of law
Contemporary reading of Hart
Hart says about wicked systems
Legal systems can be used to achieve good or evil objectives
Use law as one of their instruments. Wicked men will enact wicked rules which others will enforce
Contemporary reading of Hart
wicked legal systems are more
than just a conceptual possibility. They are practically and conceptually possible. Points out Nazi Regime and South African apartheid.
Given Hart’s positive account of legal system, Waldron claims
We are left with possibility that law may as well turn out to be just or unjust
According to positivists, if adherence fo moral principles is not a necessary condition of legality
both wicked and benign legal system fulfil all the requirements of law
Separation thesis claims
law can be identified w/o reference to social justice or common good
Problem with fuller’s account of separation thesis
mistakens logical statement for a causal claim. Separation thesis is a conceptual claim only
law and morality do not exist in discrete vacuums despite the sharp logical distinction made by Hart
Legal validity applies to
particular laws, rather than status of legal system
According to Hart’s wide defintion
any set of norms qualifies as a legal system if it satisfies a system of primary and secondary rules with established tests of validity
By pointing to Nazi Regime and South Africa under apartheid, Hart found
that these systems met the formal requirements of a legal system despite being immoral
Waldron defends
He defends positivism but also says that a law can only be said to exist relative to an exiting population that is following it.
Hart had envisaged that, in any legal system, the rule of recognition may become a
e a technical instrument used primarily or exclusively by the elite of offi cials within the system, while the subjects are quiescent and disengaged from the question of what counts as law.
If one insists that laws can remain valid even if immoral, this can be
exploited by evil regimes to their advantage. Indeed this position was exploited by those convicted of war crimes at Nuremberg when defendants at the Trials claimed to have just been following orders, insisting that their actions were “within the law.”
