Week 7: Hart, Analytic Jurisprudence, Raz

Question 1

What is Hart’s theory of legal positivism?

Answer 1

Hart suggests that laws are rules made by humans. There are no inherent or necessary connection between laws and morality.

Question 2

What does Austin posit?

Answer 2

As Hart’s theory critiques Austin, according to Austin, law is solely a command by the sovereign and is backed by a credible threat that is habitually obeyed by the masses.

Question 3

What are Hart’s critiques of Austin?

Answer 3

1. Law comprises not just commands but also rules.
2. Austin’s theory does not account for judge-made laws, common laws, customary laws, because these are laws not derived from a sovereign.
3. Thirdly, commands and orders usually stem from the sovereign’s desires.
4. Laws are not just commands and orders, which are typically given to others, because they also bind the legislators and lawmakers themselves.

Question 4

Power-conferring rules vs duty conferring rules?

Answer 4

A duty conferring rule is a rule that requires/commands you to do something. A power conferring rule gives you the power to do something.

Question 5

What is Hart’s concept of law?

Answer 5

Hart states that a legal system must have both primary and secondary rules. To demonstrate the need for secondary rules, Hart examines the problems that surface if there were only primary rules.

Question 6

What are primary rules?

Answer 6

Rules that give commands, governing and regulating human behaviour. They can be prescriptive (imposing a duty) or prohibitive (imposing a restriction).

Question 7

What are the problems of primary rules alone?

Answer 7

1. Static quality of law: cannot adjust to new situations because it relies on people changing their behaviour
2. Inefficiency of the law: there must be people with the authority to decide whether a rule applies or not
3. Uncertainty of the law: not knowing or agreeing on what a rule is, especially when applying to new scenarios

Question 8

What is the solution to the issue of only having primary rules?

Answer 8

Introducing secondary rules. They are power-conferring rules which address the inefficiencies of the primary rules governing behaviour.

Question 9

What are the secondary rules?

Answer 9

1. Rules of change (stasis): Empower people to create new primary rules - like legislature
2. Rules of adjudication (inefficiency): Empower individuals to make authoritative determinations of whether a primary rule has been broken - like judges and magistrates interpreting the law and applying it
3. Rule of recognition (uncertainty): Determine what a primary rule is - like passing a bill

Question 10

What is the Ultimate Rule of Recognition?

Answer 10

It determines what the secondary rules are. It is a sociological fact evinced by behaviour. It is not technically a law but it expresses the basic tenet of legal positivism, that there are conventional criteria agreed upon by officials for determining which rules are and aren’t part of the legal system.

Question 11

What is analytic jurisprudence?

Answer 11

A concept that focuses on identifying the foundational components of a particular concept. It uses hypothetical cases to reduce phenomenon to its essential elements (‘central cases technique’).

Question 12

What is the Ordinary Language Philosophy?

Answer 12

It is also known as Linguistic Philosophy or Natural Language Philosophy. Hart was part of this school which treated traditional philosophical problems as being rooted in misunderstandings philosophers develop by forgetting what words actually mean in a language, and taking them in abstraction and out of context.

Question 13

‘General jurisprudence’ vs ‘special jurisprudence’?

Answer 13

General jurisprudence seeks to essentialize, focus on parsimony (unwillingness to spend money and resources) as opposed to complexity that is in specialist jurisprudence.

Question 14

What are critiques of analytic jurisprudence?

Answer 14

• It is very abstract and unreflective of personal experiences, inapplicable to the real world
• Law is necessarily complex in its operation. The AJ’s simplification does not capture how law actually operates in the real world
• Such simplification may not actually help us understand the law better after all, because its interactions and complexity is important in understanding what law is.

Question 15

How does Joseph Raz respond to analytic jurisprudence?

Answer 15

Raz is more influenced by analytic philosophy rather than ordinary language philosophy. He focuses on specificity of meaning. He believes that what is law and what is not law is a matter of social fact (what humans agree on)

Question 16

Raz’s rule of law posits (and critiques other definitions) that…

Answer 16

The basic premise of the rule of law is that law should be capable of guiding behaviour. It centres more about the procedures and rules (positivism) and is divorced from the substantive aspects, such as justice, equality and morality. If not, the rule of law will lose its function and independence, and just be a meaningless social philosophy.

Question 17

What are the 8 foundational elements to make it possible for the law to be obeyed?

Answer 17

Ability for law to guide upon action depends on:

1. All laws are prospective, open and clear - people must know the law to be able to obey the law.
2. Laws should be relatively stable and not change everyday.
3. The making of particular laws should be guided by open, stable, clear and general rules.

Ability to apply the laws correctly depends on:

4. Independence of judiciary
5. Natural justice
6. Judicial review
7. Courts are easily accessible
8. Discretion of crime preventing agencies should not be allowed to pervert the law

Question 18

What virtues are in the idea that ‘law should be obeyed’?

Answer 18

• Constrain arbitrary power
• Facilitates positive freedom
• Respect human dignity
• Rule of law minimises the dangers associated with law itself

Question 19

What is the essence of the Rule of Law?

Answer 19

• Allows law to fulfill its direct function, that of guiding behaviour
• Analogises to sharpness, in the same way ROL allows laws to function, the function of knife allows it to cut things and sharpness facilitates things
• No intrinsic moral value

Question 20

Hart vs Raz?

Answer 20

Both are concerned with definitional parsimony, foundational definitions and essential elements.

Both have a foundational definition of law. For Raz, it is that law is to be obeyed.

Raz is more of a functionalist than Hart. Raz focuses on the functional and foundational elements of law rather than Hart who focuses on the language and semantics.

Question 21

How does Hart distinguish between “external aspects” and “internal aspects” of legal rules?

Answer 21

External aspect: a rule is in existence just because it is regularly observed.

Internal aspect: a rule is in existence because those subject to it use it as a reason or standard for behaviour.

Question 22

How has Hart’s Concept of Law been criticised?

Answer 22

1. The techniques of analytical philosophy may establish that law is simply one form of social rule.
2. From the directions of modern version on ‘natural law’ theory, it has been argued that ultimately, the reason why those subject to legal rules adopt an ‘internal attitude’ to them has to do with moral factors, and that consequently, Hart’s restricted sense of ‘legal obligation’ and distinction of law and morality collapses.

Question 23

What is the central case technique?

Answer 23

Hart distinguishes core, paradigm examples of a phenomenon and penumbral, non-central examples. The idea is not to define law but to theorise law in terms of a number of core features - primary and secondary rules, internal and external aspects. Customary or international law count as penumbral, non-central cases.

Question 24

Why don’t conventional methods of definition work with law?

Answer 24

Hart suggests that we need to look at legal concepts in the contexts of sentences and legal doctrines in which they arise. It is impossible to define law in terms of a finite number of features which are all necessary.

Question 25

What is Hart’s gesture towards natural law?

Answer 25

Natural law theory believes that all laws come from a divine source, and immoral laws are not actually laws. Legal positivism (Hart) suggests that laws are merely created by humans through a set of specific procedures. Hence, immoral and unjust laws are also laws.

Question 26

How is Raz’s rule of law differentiated from other values like democracy (Hayek) or Fullerian morality?

Answer 26

Fuller’s attempt to establish a necessary connection between law and morality fails insofar as conformity to the rule of law is a moral virtue, it is an ideal which may fail to become reality. The special status of the rule of law does not mean that conformity with it is of no moral importance.

Hayek says that the requirement that the rules of true law be general does not mean that sometimes special rules may not apply to different classes of people.