Legal positivism - Hart

Question 1

what is hart’s definition of law?

Answer 1

‘a legal system exists when there is a union of primary and secondary rules, where the majority obey the primary rules and the officials take the internal view to the secondary rules’

Question 2

Difference between a habit and a rule?

Answer 2

Hart’s example: habit = going to the cinema, (social) rule = not wearing hats in Church. Deviation from a habit need not be a matter for any form of criticism but where there are rules lapses and faults are open to criticism which is seen as legitimate and justified

Question 3

What is a critical reflective attitude?

Answer 3

With a rule critical: if there is deviation from that standard there can be criticism and this criticism is seen to be legitimate and justified reflective: awareness of the standard as standard

Question 4

What is a coercive order?

Answer 4

Hart example is of a gunman who threatens to shoot the bank clerk if he does not hand over the money - ‘being obliged’ - depends on certain beliefs e.g that you will be shot if you do not hand over the money

Question 5

what does ‘under an obligation’ mean?

Answer 5

beliefs and motivations are not sufficient to warrant the statement that he had an obligation - need contexts e.g. the existence of a rule

Question 6

difference between a prediction and a rule

Answer 6

prediction = a red light is a sign that others will stop rule = a reason for stopping when the light is red is a standard of behaviour and an obligation

Question 7

internal point of view

Answer 7

• ‘critical reflective attitude to certain patterns of behaviour as common standard and that this should display itself in criticism (including self-criticism), demands for conformity, and in acknowledgement that such criticism and demands are justified, all of which find their characteristic expression in the normative terminoly of ought, must, and should, right and wrong.’
• officials, lawyers private people hold an IPOV

Question 8

criticism of the IPOV

Answer 8

• Neil MacCormick: argued that there were three POVs - extreme external, non-extreme external (only cognitive not volitional) and internal (cognitive and volitional)
• Finnis: argued that there must be some form of moral judgment going on in the IPOV - must have a moral attitude not merely a conventional one to the secondary rules

Question 9

primary rules

Answer 9

require humans to do or abstain from certain actions whether they want to or not - impose duties

Question 10

secondary rules

Answer 10

they provide that humans may do or say certain things, confer powers and can be either public or private

Question 11

rule of change

Answer 11

‘empower an individual or body of persons to introduce new primary rules for the conduct of the life of the group, or of some class within it, and to eliminate old rules’

otherwise society is too static

Question 12

rules of adjudication

Answer 12

‘empower individuals to make authoritative determinations of the question whether, on a particular occassion, a primary rule has been broken’

otherwise society is too inefficient

Question 13

rule(s) of recogition

Answer 13

‘this rule will specify some feature or features possession of which by a suggested rule is taken as a conclusive affirmative indication that it is a rule of the group to be supported by the social pressure that it exerts’

otherwise there is too much uncertainty as to what standards apply

Question 14

are secondary rules power-conferring?

Answer 14

• hart’s distintion between primary and secondary rules is that the former are duty imposing and the latter are power-conferring
• BUT public secondary rules also impose duties upon officials
• thus they are secondary in the sense that they are ‘about the primary rules’ - they ‘specify the ways in which the primary rules may be conclusively ascertained, introduced, eliminated, varied’

Question 15

does hart see primitive communities as having law?

Answer 15

no - a union of primary and secondary rules: ‘ it is plain that only a small community closely knit by ties of kinship, common sentiment and belief, and placed in a stable environment, could live successfully by such a regime of unofficial rules’

criticised by anthropologists for this view

Question 16

what did hart think of international law?

Answer 16

• argues that international law is not law because of its lack of organised sanctions and not because a state sovereign cannot be bound by law (like austin)
• focus is on municipal legal systems
• international law is not yet a legal system as it does not have secondary rules
• hart was writing at a time of v settled law and there was not much international law

Question 17

definition of the rule of recognition

Answer 17

the rule of recognition is for the conclusive identification of the primary rules of obligations - can be simple or complex

Question 18

what is the RoR in the UK?

Answer 18

in the uk - ‘what the queen enacts in parliament is law’ but also recognises common law - precedent as law

Question 19

functions of the RoR

Answer 19

• helps cure the defect of uncertainty
• unifies the rules into a system (of rules valid under RoR)

Question 20

Characteristics of the RoR

Answer 20

• its existence is shown in the practice of officials
• its existence is a matter of fact
• it is supreme
• it is ultimate

Question 21

does the RoR include moral standards

Answer 21

• inclusive positivism - it may include moral standards (e.g. the american constitution)
• exclusive positivism - it necessarily does not include moral standards
• hart is an inclusive legal positivist

Question 22

criticisms of the RoR

Answer 22

• Hart is unclear whether the RoR is a duty imposing or a power conferring rule
• is its existence a matter of fact?
• officials are not clearly defined
• what about non-officials?

Question 23

what does hart borrow from bentham and austin?

Answer 23

“the existence of law is one thing; its merit or demerit another” - the separation thesis

Question 24

what does hart does not borrow from austin and bentham?

Answer 24

law as a command

Question 25

how does sharpio resolve hart’s vagueness about who is official?

Answer 25

• RoR directed at judges
• RoC and RoA directed as official parties who are empowered by those rules

Question 26

minimum content of natural law

Answer 26

certain contingent facts about human nature ‘afford a reason why, given survival as an aim, law and morals should include a specific content’ e.g natural neccessities restricting the use of violence

Question 27

what does finnis say about hart’s theory?

Answer 27

wrong central case: a non arbitrary theory of law must be built on practical reason that is ITSELF answer to why we need law - the problem with Hart’s theory is not the conclusions but the absence of basis for arriving at those conclusions

Question 28

problems with finnis critique of hart

Answer 28

• if the law is built upon moral philosophy if one doubts the existence of moral truths or doubts to know these truths
  
  • NB hart does not defend his position by reference to moral skeptism
• two separate conversations about a shared conception of what law is and the moral good it may serve

Question 29

Simmons criticism

Answer 29

The problem with LP is that it cannot make sense of our ordinary understandings of law

Question 30

Who was Dworkin?

Answer 30

an american lawyer, academic and legal theorist who succeeded Hart’s chair at Oxford

Question 31

What type of jurisprudential theory did dworkin have?

Answer 31

Nobles regards him as a modern natural lawyer but it is easier to define him as an anti-positivist

Question 32

what was Dworkin’s theory based upon?

Answer 32

he believed that not all law was good but it was identified through moral/legal reasoning

Question 33

three aspects of hart’s theory that dworkin attacked

Answer 33

• that the law consists of rules
• that whilst rules apply clearly in some cases there are also situtions where the interpretation is a matter of choice
• in making these choices, judges ought to have regard to moral values but there is no guarantee of this

Question 34

dworkin reponse to these three issues

Answer 34

• that the law does not only consist of rules but of principles
• that principles can operate even when rules are absent or unclear
• that judges are not free to choose in hard cases
• that when we recognise the role played by principles, we cannot accept the rule of recognition

Question 35

rules v principles

Answer 35

• the example of riggs v palmer - grandson who killed his grandfather was not allowed to inherit his farm under the principle that no man should benefit from his own wrong
• no man should benefit from his own wrong is not a rule as it does not apply every time someone benfits from their wrong
• rules: the one q is are the facts present or not and then it is applied, whereas principles jabe weight but they do not detirmine the issue
• when there is a conflict of principles, one is overweighed but it does not disappear
• when there is a conflict of different rules they have to be reconciled - one is accepted and the other is overuled or incorporated into the other

Question 36

does dworkin challenge hart’s theory?

Answer 36

many hartians e.g raz, maccormick accpet priniciples within a positvist view - so has dworkin just supplemented hart’s thesis??

Question 37

can legal principles be identified by a rule of recognition?

Answer 37

if legal principles can be identified through precedent then they can be part of the rule of recognition - hart conceeded to this in his post script

Question 38

how does Dworkin think legal principles are developed?

Answer 38

thinks they are developed through legal argument - all law is legal argument

Question 39

what does wendel say about citizens accepting IPOV?

Answer 39

• conceptual reasons: ‘incoherant to regard the RoR as imposing no obligation’ - a bad citizen may not care about the law but accepts it as a normative standard
• normative reasons: following legal norms are beneficial to citizens