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The Philosophy of Law: H.L.A Hart
Transcript of The Philosophy of Law: H.L.A Hart
The Philosophy of Law: H.L.A Hart
Breakdown of Secondary Rules
Secondary Rules Continued
As a pioneer of the legal theory concerning positive law, H.L.A Hart was considered a founding father of this field, paving the way for future legal theory being exercised in governments today. This presentation aims to summarize his beliefs on the law, and the intended effects of positive law on all of society.
Rebuttals from Socrates
H.L.A Hart's Theory of Positive Law
Hart believed in positive law theory in the sense that this is how it
work, as opposed to this is how it
work. To Hart, legality should never be determined or influenced solely by morality. For example, if a judge is to provide a ruling, on which grounds of morality does he base that decision on, himself, that of the parties, the lawyers, or that of the government that appointment him?
Although Hart disapproves of morality being a sole source of guiding law, he does recognize that it has an effect to an extent of creating and enforcing positive law. Hart recognizes the moral principle of justice which is at the core of any legal system. He also asserts that law is an instrument of social control, but can only be properly exercised using the moral principles of: formal justice, legal impartiality and the principle of fairness for all citizens to oblige and accept.
Rebuttals from John Austin
Herbert Lionel Adolphus Hart was a British positive law theorist
He was born on July 18, 1907 and died on December 19, 1992 (85 years old)
He was a professor of jurisprudence at Oxford University
Developed "The Concept of Law", Minimum Conditions etc.
Mostly known for his introduction of primary and secondary rules in terms of how positive law should be applied
Primary and Secondary Rules
H.L.A Hart's Theory of Positive Law Continued
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Impacts and Influences
Hart's Legal Theory as an Influence on Canadian Law
Our Group's Perspective on Hart
Hart developed his positivist philosophy of law based on a system of Primary Rules and Secondary Rules. According to this view,
, also known as "Rules of Obligation"
are those which impose obligations on citizens, who are punished if they disobey. This can be known in current Canadian Law as
Where Primary Rules prove inadequate, or are difficult to interpret, Secondary Rules are brought into being.
govern a range of functions not related to punishment. This can also be known as
Since Secondary Rules are more interpretive and analytic on a legal system, they can range from rules establishing how courts conduct their business, regulations governing the legislative process itself and rules that interpret Primary Rules, or define when they are broken.
Firstly, there is a
"Rule of Change"
within Secondary Rules, which can be further divided into
Private Rules of Change
, which allows individuals to change legal rights to make wills and contracts valid, as well as the acquisition/exchanging of property or marriage. The second rule of Change is obviously
, which regulates amendments to current primary rules to allow modification or removal if deemed necessary.
"Rule of Recognition"
was based on the idea that as societies expand and develop, so do new ideas about the law, leading to legal uncertainties on topics. This rule allows for the direct authority or "sovereign" of the law to be upheld without debate or argumentation. It reserves reverence for the law being exercised, that must be followed by all members of society.
"Rule of Adjudication"
establishes proper procedures for settling disputes on the interpretation of laws. This settles the problem of inefficiency where people would wonder what entities or bodies can be entrusted with such interpretations and decisions.
John Austin, a 19th Century philosopher and another Positive Law theorist compiled the "Command Theory", inspired by Utilitarian philosophers Jeremy Bentham and John Stuart Mills. In Austin’s view, the sole purpose of law was to regulate individual behavior through the consequences of punishment. He also believed that all legal systems were based on the traditional obedience of the population to the ruling Sovereign. Austin continued to argue that coercion was necessary to administer the full potential power of the law, thus bringing the utmost obedience from society. As a specific example of one of Austin's arguments, he maintains the idea that legal precedence is invalid, that is, automatically implied without legal verification under a sovereign.
Hart found Austin's Command Theory simplistic and inadequate for a modern society. He rejected the view that laws are simply commands based on coercion, pointing out that there are a range of laws enacted which have nothing to do with coercion. For example, there are laws conferring powers on individuals or groups (division of power). Further, in many modern legal systems, sovereigns are not “above the law”. Coercion is also out of the question for Hart, since the law is generally agreed to benefit all of society, where individuals are competent enough to understand that acceptance leads to balance and peace. Obedience could lead to a fearful society from the wrath of a Sovereign, thus, Hart believes that people are obliged to do what is right, with a willingness for acceptance than just bold obedience.
It is obviously evident that law in Canadian society, law is based on legal positivism, where rules are introduced, created and enforced by the state (Sovereign), with the general agreement of society to believe that the current laws we have are necessary to regulate it with moral obligation and willingness by the people. Canadian law can be further divided through Hart's principles of
Rules known as
Continuing with the relationship between morality and positive law, Hart says that in order for a society to live in peace and legal harmony, we must all look beyond ourselves, that is, to be concerned for others. This strengthens morality for individuals, while enforcing the necessity of having positive law to protect society as a whole.
Hart also believed that laws should not be guided by coercion (the practice of persuading someone to do something by using force or threats, [Copyright © 2015 Dictionary.com, LLC.]) but through acceptance. If people feared a Sovereign, the law would essentially be a control mechanism for people to follow orders from the interests and wishes of rulers, therefore law would no longer exist or even be called law. Through acceptance, obedience naturally comes but not in the context of fearing the law, but to assert it as "what is best for society with my obligation to be in harmony with legal principles."
Hart's Attack Continued
Hart, in response to John Austin's argument on legal precedence and its validity in jurisprudence, argues that although precedence becomes law, it is accepted under the principle of Secondary Rules, within the
"Rule of Adjudication"
"Rule of Recognition"
. Sometimes, the Sovereign may even disagree with the decision, but it still ultimately remains law, which could also refer back to Hart arguing that the Sovereign isn't above the law, as opposed to traditional Sovereign powers or governments.
As a natural law theorist, Socrates applied the notion that Natural Law Theory states that only valid laws are those based on morality. These are universal, handed down from Divinity, or Nature, or both. Humans can deduce these universal laws simply by reasoning. Variations of Natural Law Theory dominated for centuries. Leading Greek philosophers such as Socrates believed justice was synonymous with the will of the gods. All Athenians were obliged to obey their law as it embodied the gods’ will. He took this so seriously that he refused to escape prison when he was sentenced to death.
Hart took issue with Natural Law Theory, most famously in his 1961 work, "The Concept of Law". Hart argued that valid laws did not necessarily have to be based on morality. Hart accused the Natural Law theorists of confusing the
. Unlike laws of chemistry, physics etc., there were no fixed ethical laws in Nature, which all humans were obliged to obey- Therefore, Hart developed his positivist philosophy of law, based on a system of Primary Rules and Secondary Rules.