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).
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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.
