Legal positivism and Hart Flashcards
Austin’s Command Theory:
Law = commands from a sovereign, backed by threats of punishment.
Law exists if society habitually obeys the sovereign.
Objections to Austin (Hart):
Continuity Problem: New rulers are immediately recognized without needing new habits.
Persistence Problem: Old laws remain valid even after original sovereign is gone
Separation Thesis:
Law’s existence depends on social facts, not morality.
Law and morality can overlap, but legal validity ≠ moral goodness.
Levels of Separation (Austin shows all three):
Substantive: Law’s existence is separate from its moral value.
Methodological: Study of law should be morally neutral, like a science. Sociological: Law is based on observable behavior, not moral or normative claims.
Hart’s Positivism:
Rejects command theory but accepts separation thesis: law = social facts, not morality.
Supports substantive and methodological positivism (not sociological like Austin).
Hart’s Theory of Law:
Laws are social rules with an internal aspect (felt obligation, not just fear of sanctions).
Legal systems = primary rules (conduct rules) + secondary rules (rules about rules).
Social Rules vs. Habits:
Habits are just observable regularities; rules involve criticism for violations.
Rules provide standards of behavior (e.g., game rules, traffic rules).
Primary vs. Secondary Rules:
Primary rules: guide conduct (e.g., “Pay taxes”).
Secondary rules:
Recognition: how to identify valid laws.
Change: how to modify laws.
Adjudication: how to resolve disputes.
Rule of Recognition:
Foundation of legal systems.
A social practice among officials (not codified). Not justified by a deeper rule (avoids infinite regress).
Ultimate Rule of Recognition (URR):
Officials internally accept certain standards as law.
URR itself is a social fact, not valid/invalid.
Hart is vague on how exactly social practices create legal reasons — ongoing debate.
Example of URR:
In democracies (e.g., Canada, USA), the Constitution isn’t the URR; the URR is the social practice of recognizing the Constitution as authoritative.
Law flows from recognition, not just from documents.
Hart’s Positivism:
Substantive positivism: No moral criteria for legal validity — only URR. THE LAW AND MORALITY CAN EXIST SEPERATLY
Methodological positivism: Descriptive theory based on real legal practice (includes internal point of view).
Different from Austin’s sociological positivism (purely external/factual).
Legal Positivism Entails Moral Skepticism?
Misconception: Positivism implies moral relativism, non-cognitivism, or moral nihilism.
Clarification: Legal positivism is about the nature of law, not the nature or validity of morality.
Positivism Demands Blind Obedience to Immoral Laws?
Misconception: Positivism legitimizes tyranny and demands obedience regardless of morality.
Clarification: Whether one ought to obey immoral laws is a moral question, not answered by positivism itself. Hart allows that moral obligations may override legal ones, leading to dilemmas for judges under unjust systems.
Dworkin’s Critique of Hart
Dworkin challenges Hart’s claim that law is a system of rules validated by social sources.
He argues that moral principles are already part of law, not just supplementary considerations. Principles (e.g., fairness, justice) guide judicial reasoning even when no explicit rule applies.
The “Model of Rules” (Dworkin’s Summary of Hart)
Hart’s system, according to Dworkin:
(1) Law consists of rules identified by their pedigree (validated by the URR).
(2) Where no rule clearly applies, there is a gap, and judges exercise strong discretion (make new law).
Does Positivism Require Formalism?
Formalism: Strictly applying the literal meaning of rules without regard to underlying purposes.
Example: Whiteley v. Chappell (1868) — impersonating a dead person did not violate the law literally (because dead persons are not entitled to vote). Clarification: Hart’s positivism does not require formalism; judges can interpret laws purposively, considering broader goals.
Dworkin’s Argument Against Strong Discretion
Dworkin: Judges do not create new law by discretion in hard cases.
Instead, they are guided by pre-existing moral principles that are part of the legal system. Law includes rules + principles, both binding.
The Idea of Strong Discretion (Hart)
Core cases: Legal rules apply determinately.
Penumbra cases: Unclear whether a rule applies; judges must exercise discretion informed by non-legal standards (morality, policy). Thus, positivism accepts law’s incompleteness and the necessity of moral reasoning in hard cases.
Are Principles Legally Binding?
Positivist view: In absence of a rule, judges exercise discretion; principles are not binding law.
Dworkin’s view: Principles are binding legal standards, derived from the soundest moral interpretation of existing legal practices.
Dworkin’s Conclusion: The Failure of the Separation Thesis
Law is not just explicit rules grounded in social facts.
It includes implicit moral principles necessary for legal reasoning. Therefore, law and morality are not sharply separable.
Raz’s Exclusive Positivism
The source of law cannot include morality.
Law’s claim to authority is incompatible with law being based on moral reasoning. Moral reasoning by judges is non-legal.
Inclusive Positivism (Hart, Waluchow, etc.)
The Ultimate Rule of Recognition (URR) can:
Directly confer legality on moral principles (e.g., via a Bill of Rights), or
Authorize judges to apply moral reasoning (e.g., to define a "fair" tax rate).
Moral principles become valid law only because their validity is traceable to the URR.
Objections to Inclusive Positivism
Dworkin’s criticisms:
There is a necessary connection between legal and moral validity.
Positivists allegedly value certainty, but morality is controversial, making law less certain.
Hart’s reply:
Some uncertainty is beneficial for flexibility in unforeseen cases.
Raz’s reply:
Law’s function is conclusively to settle disputes — favoring certainty over flexibility.
