What is Hart’s theory of legal positivism?
Hart suggests that laws are rules made by humans. There are no inherent or necessary connection between laws and morality.
What does Austin posit?
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.
What are Hart’s critiques of Austin?
- Law comprises not just commands but also rules.
- Austin’s theory does not account for judge-made laws, common laws, customary laws, because these are laws not derived from a sovereign.
- Thirdly, commands and orders usually stem from the sovereign’s desires.
- Laws are not just commands and orders, which are typically given to others, because they also bind the legislators and lawmakers themselves.
Power-conferring rules vs duty conferring rules?
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.
What is Hart’s concept of law?
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.
What are primary rules?
Rules that give commands, governing and regulating human behaviour. They can be prescriptive (imposing a duty) or prohibitive (imposing a restriction).
What are the problems of primary rules alone?
- Static quality of law: cannot adjust to new situations because it relies on people changing their behaviour
- Inefficiency of the law: there must be people with the authority to decide whether a rule applies or not
- Uncertainty of the law: not knowing or agreeing on what a rule is, especially when applying to new scenarios
What is the solution to the issue of only having primary rules?
Introducing secondary rules. They are power-conferring rules which address the inefficiencies of the primary rules governing behaviour.
What are the secondary rules?
- Rules of change (stasis): Empower people to create new primary rules - like legislature
- 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
- Rule of recognition (uncertainty): Determine what a primary rule is - like passing a bill
What is the Ultimate Rule of Recognition?
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.
What is analytic jurisprudence?
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’).
What is the Ordinary Language Philosophy?
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.
‘General jurisprudence’ vs ‘special jurisprudence’?
General jurisprudence seeks to essentialize, focus on parsimony (unwillingness to spend money and resources) as opposed to complexity that is in specialist jurisprudence.
What are critiques of analytic jurisprudence?
- 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.
How does Joseph Raz respond to analytic jurisprudence?
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)
Raz’s rule of law posits (and critiques other definitions) that…
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.
What are the 8 foundational elements to make it possible for the law to be obeyed?
Ability for law to guide upon action depends on:
- All laws are prospective, open and clear - people must know the law to be able to obey the law.
- Laws should be relatively stable and not change everyday.
- The making of particular laws should be guided by open, stable, clear and general rules.
Ability to apply the laws correctly depends on:
- Independence of judiciary
- Natural justice
- Judicial review
- Courts are easily accessible
- Discretion of crime preventing agencies should not be allowed to pervert the law
What virtues are in the idea that ‘law should be obeyed’?
- Constrain arbitrary power
- Facilitates positive freedom
- Respect human dignity
- Rule of law minimises the dangers associated with law itself
What is the essence of the Rule of Law?
- 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
Hart vs Raz?
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.
How does Hart distinguish between “external aspects” and “internal aspects” of legal rules?
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.
How has Hart’s Concept of Law been criticised?
- The techniques of analytical philosophy may establish that law is simply one form of social rule.
- 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.
What is the central case technique?
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.
Why don’t conventional methods of definition work with law?
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.
