Monday, November 12, 2012

ESSAY ON HART’S CONCEPT OF LAW

ESSAY ON HART’S CONCEPT OF LAW INTRODUCTION

Hart’s theory is a modern restatement of theory or legal positivism first expounded in the 19th century by Jeremy Bentham and his disciple John Austin. In chapters 2-4 he attacked Austin and Bentham’s command theory of law. The main thesis, that law consists of ‘union or primary and secondary rules’ are contained in chapters 5 and 6. His theory or rule of recognition is discussed in chapter 6. Chapter 9 is where Hart defended his thesis.

PREFACE In the preface to the book, Hart said his intention was to produce an “essay in descriptive sociology”, pay great attention to examining language and meaning of words and emphasis between internal and external points of view. He also indicated that he will pay attention to examining language and meaning of words and pay attention to the concept of law we are all familiar. He calls his thesis a mere description of law that is already known. He described his use of legal-related language by an analogy of the captain of a ship who concentrates of focusing his telescope with the main object of finding land. The use of legal-relate language is only a means to an end. He emphasized the distinction between internal and external point of views in understand his theory or concept. In the analysis of rule following, Hart distinguished between merely habitual behavior that doing things as a rule following i.e. making it a rule to do something.

DEFINITION AND THEORY IN THE CONCEPT OF LAW

Hart isolates the following three question of importance to be considered in jurisprudence: a) What is the difference between law and coercion? b) What is the relationship between legal and moral obligation? c) What does it mean to say that a rule exists in a particular society? In definition of law, the Model (union of modern and secondary rules) of law is constituted by a central set of elements that describe a modern municipal legal system. We can now say international law is law to the extent that its shares similarities with this central case (it involves legal argument employing rules) and not law to the extent that it does not (e.g. there is no court of general jurisdiction).

CRITICISM OF ORDERS BACKED BY THREATS (OBT) THEORY

Hart then went to provide a classic criticism of orders backed by threats (OBT) Theory of law which is similar to Austin command theory. The main criticism of OBT is that it ignore concept of rule of rule following and concentrate on law a sets of punishment from someone who gives orders. The key issues discussed in the various chapters are as follows:

In chapter 2: Harts considers linguistics differences between orders and laws and talk about linguistic method or method of linguistic philosophy. Being obliged and under obligation to do something. A bank cashier being obliged to by an armed robber to hand him cash or when a tax inspector orders someone to pay a particular amount of money. The legal request is obligatory, while the armed robber’s order is being obliged.

In Chapter 3: Hart considers what law would look like if we consider law as orders to us by legal sovereign and make three criticisms as follows:

(1) While some law imposes duties (criminal, tort etc) a large part of our laws does require us to do things (contracts, marry, forms companies, acquire properties are power conferring rules that can facilitate our activities

(2) Law can also apply to the makers and top down cannot be accounted for

(3) In some cases there could be no placed and time where law was created (such as customs) as the OBT suggests.

In Chapter 4: Harts continue the criticism of OBT theory by criticizing the idea of legal sovereignty as brute force. Reference to a group of persons or person that relied on the continued habit of obedience to it would meet severe difficulties where there was change in sovereignty. According to him sovereign is constituted by rules so that the appropriate persons are seen as occupying offices of the sovereign rather than being the sovereign themselves. In UK we have crown-in-parliament is the sovereign. d) Union of ‘primary and secondary rules’

In Chapter 5: Harts discussed his own model of law includes the idea of obligation that implies the existence of strongly support social rules that confers power and permit peoples to do things. Duty-imposing rules without power-imposing rules would not be a truly legal system, but a pre-legal system. This is because the existing of both sets of rule is necessary to create a legal society. To cure the defects of duty-imposing rules, Hart construct three power-conferring rules which he called secondary rules as follows:

a) Rules of change that introduce private and public powers of legislation and repeal and cure the defect of lack of progress (public legislation).

b) Rules of adjudication and these cures the defect of inefficiency by introducing courts and other institution of enforcement (courts of law and enforcement).

c)Rule of recognition conferring power on people to identify the law for certain through institution of criteria of legal validity, cures the defects of uncertainty (make wills, contract, marriage etc). Duty-imposing and power-conferring rules create Hart’s ‘union of primary and secondary rule’ through which he thought he had found the key to the science of jurisprudence.

In Chapter 6: Harts examined in detailed the rule of recognition and its role in constitutional law. This rule was identified as matter of empirical fact and law was seen as something different from morality. Hart also say legal system is in existence where (1) the rules issuing from it are by and large effective (2) even if people in general needs not accept this rules, the officials do accept certain standard as setting up the criteria of legal validity of the system. The less important chapters g)

In chapter 7: Hart discussed his view of legal reasoning and stresses the open-ended, unclear and ambiguous character of many legal rules including his famous distinction between the core and penumbra of settled rules of legal systems. He attacks the view that law can be reduced to a set of propositions about what judges will do. The American Legal Realism criticized this view and stated that statement of laws were no more than prediction of what judges and juries would do in particular case. This led to a call for the examination of law beyond the stated rules into the sociological conditions that surrounded law. This chapter should be read to understand how Hart might defend himself against Dworkin’s criticism of Hart’s rile of recognition

In chapter 8: Hart considers why law and morality has so much to do with each other but nevertheless can be distinguished in the way his theory of legal positivism requires. His brilliantly clear introduction to the idea and history of the development of doctrines of natural law is one of the best introductions to this subject. Hart distinguishes between the sort of justice to law (procedural justice or justice according to law) and the justice that attaches to substantive law (or justice of the law). He says the latter concept is more important from the moral point of view. i)

Chapter 10: sums of Hart’s theory of definition and how international laws is to be understood in terms of general thesis that law consists of a union of primary and secondary rules.

A RETURN TO ‘INTERNAL’ POINT OF VIEW

One of the ways to get into a state of mind to criticize this theory is to constantly ask “what the ‘internal point of view’ is. According to Hart this means nothing more than when a person has an internal point of view towards a set a rules i.e. he or she accepts the rules. Why would anyone accept these rules? The rule of recognition is crucial to identifying law and there is a distinction between ‘external’ and ‘internal point’ of view. If judges are only to commit themselves to their judicial oath of legal validity that has some moral decency – a commitment to allegiance to the Nazi party would not be proper? If we think we would not identify any rule as valid law unless it complied with a rule of recognition that embodied some moral decency (e.g. democracy). That would entirely demolish Hart’s theory of legal positivism since it would hold that there was necessarily some connection between legal validity and moral decency.

PERRY ON HART’S METHODOLOGY

Stephen Perry takes the line that Hart’s theory cannot be purely ‘neutral’ and ‘descriptive’ because Hart relies on ‘evaluative judgments’ in his choice of a central case. Perry was of the view that explanatory power is determined by ‘meta-theoretical’ criteria such as predictive power, coherence, and an attempt at covering all available phenomena. If the aim of description is accuracy, then it should report inconsistencies and different views about what obligations people are under or whether people are actually under obligations. Perry concludes that internal account is required to understand normativity.

CONCLUSION

This essay examined briefly Hart’s theory is a modern restatement of theory or legal positivism first expounded in the 19th century by Jeremy Bentham and his disciple John Austin. In the preface Hart said his intention was to produce an “essay in descriptive sociology”, pay great attention to examining language and meaning of words and emphasis between internal and external points of view. Hart also provide a classic criticism of orders backed by threats (OBT) Theory of law which is similar to Austin command theory, because it ignores rule following and concentrates on punishment and orders.

  In Chapter 2 Hart considers linguistics differences between orders and laws and talk about linguistic method or method of linguistic philosophy. In Chapter 3, Hart considers what law the structure of law is it is consider law as orders to us by legal sovereign. In Chapter 4 Harts continue the criticism of OBT theory by criticizing the idea of legal sovereignty as brute force. Chapter 5 discussed Harts model of law includes the idea of obligation that implies the existence of strongly support social rules that confers power and permit peoples to do things. In Chapter 6, Harts examined in detailed the rule of recognition and its role in constitutional law. In Chapter 7 Hart discussed his view of legal reasoning and stresses the open-ended, unclear and ambiguous character of many legal rules including his famous distinction between the core and penumbra of settled rules of legal systems. In chapter 8 Hart considers why law and morality has so much to do with each other but nevertheless can be distinguished in the way his theory of legal positivism requires. In Chapter 10 sums of Hart’s theory of definition and how international laws is to be understood in terms of general thesis that law consists of a union of primary and secondary rules. One of the ways to get into a state of mind to criticize this theory is to constantly as “what the ‘internal point of view’ is. Why would anyone accept these rules? The main criticism of OBT is that it ignore concept of rule of rule following and concentrate on law a sets of punishment from someone who gives orders.

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