Legal positivism - Hart Flashcards
what is hart’s definition of law?
‘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’
Difference between a habit and a rule?
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
What is a critical reflective attitude?
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
What is a coercive order?
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
what does ‘under an obligation’ mean?
beliefs and motivations are not sufficient to warrant the statement that he had an obligation - need contexts e.g. the existence of a rule
difference between a prediction and a rule
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
internal point of view
- ‘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
criticism of the IPOV
- 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
primary rules
require humans to do or abstain from certain actions whether they want to or not - impose duties
secondary rules
they provide that humans may do or say certain things, confer powers and can be either public or private
rule of change
‘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
rules of adjudication
‘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
rule(s) of recogition
‘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
are secondary rules power-conferring?
- 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’
does hart see primitive communities as having law?
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
what did hart think of international law?
- 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
definition of the rule of recognition
the rule of recognition is for the conclusive identification of the primary rules of obligations - can be simple or complex
what is the RoR in the UK?
in the uk - ‘what the queen enacts in parliament is law’ but also recognises common law - precedent as law
functions of the RoR
- helps cure the defect of uncertainty
- unifies the rules into a system (of rules valid under RoR)
Characteristics of the RoR
- its existence is shown in the practice of officials
- its existence is a matter of fact
- it is supreme
- it is ultimate
does the RoR include moral standards
- 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
criticisms of the RoR
- 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?
what does hart borrow from bentham and austin?
“the existence of law is one thing; its merit or demerit another” - the separation thesis
what does hart does not borrow from austin and bentham?
law as a command
