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Obligation v Being Obliged

Austin's Theory

1) Law is the command of a sovereign backed by a sanction

2) The sovereign is the person/people who is/are habitually obeyed and are not in the habit of obeying anybody else

Background and approach

Hart on Law and Morality

The law as it is/the law as it should be

  • Professor at Oxford University.
  • 'Ordinary Language Positivism'
  • Legal positivism
  • Theory borne out of criticism of Austin

Bentham and Austin

There are overlaps between law and what we believe to be morally acceptable

There are key differences: morals are not subject to deliberate change

While the law does not derive from morals, it can be evaluated by them

H. L. A. Hart

  • Background and philosophical approach
  • Hart's Concept of Law
  • Law and morality
  • Criticisms

Criticisms

Legal positivism v natural law

Purely descriptive?

HART-FULLER DEBATE

HART-DEVLIN DEBATE

HART-DWORKIN DEBATE

The Concept of Law

STEPHEN PERRY

Primary and Secondary Rules

Primary

'impose duties' and 'concern actions involving physical movement or changes'

Secondary

Criticisms of Austin

'confer powers, private or public' and 'lead...to the creation or variation of duties or obligations'. (Hart, 81)

  • The Rule of Recognition
  • The Rule of Change
  • The Rule of Adjudication
  • Not all law can be described as commands backed by sanctions eg. power conferring laws.
  • Even those who make laws are subject to obey them.
  • There is no explanation of the authority to make law

'A Fresh Start'

  • The distinction between social rules and mere habit
  • Law can be described as being made up of social rules which are not mere habit.
  • Inside the people who obey them there is a feeling of conviction to obey the rules

H.L.A. HART

The 'critical reflexive attitude'

Although in some situations you may be obliged to do something, your carrying out an action cannot also be described as an obligation.

  • The rules are upheld through convention because the community insists on conformity.
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