Hart Concept of Law [Ch 4, 5, 6] Summary PDF

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Summaries of Chapter 4, 5, and 6 -- crucial to theory of positive law and positivism put forth by HLA Hart. ...

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POSITIVISM Background [Hart and Austin — common threads] - Positivism drew inspiration from the Renaissance revolution in natural sciences - Scientists rejected divine or teleological explanations. They restricted themselves instead to facts. i.e. facts whose existence of validity can be established through observation. - Similarly, legal positivists rejected conjectures that linked legal validity to conformity with divine or natural law. - Observed from an external view point, can be viewed through facts [Social fact thesis] - on laws and morality — Hart: “it is in no sense a necessary truth that laws reproduce or satisfy certain demands of morality” [Separability thesis] HART (Summary) - Attacked command theory of law - Mere habits don’t explain many features of law - Order backed by threats only obliges the target, does not obligate him — Not a strong enough reason to ensure compliance - Rules differ fundamentally from habits — they serve as a standard for criticising and evaluating others’ and even one’s own acts. Deviation evokes criticism and this is a good reason for criticism. - When a rule exists, at least some individuals must consider it to be general standard of behaviour to be followed by all — internal POV. - This forms the basis for ‘critical reflexive attitude’ - close to ‘application of mind’ - 2 kinds of rules — primary and secondary rules. - Primary rules are applicable on individuals, found in all societies and confer duties/power on individuals.! — Rights, duties, liberties of individuals. But legal system can’t function on this basis alone. - Shortcoming of Primary rules:! Lack of procedures, standards to determine validity, scope, ambit of legal rule — problem of uncertainty.! Law takes a long time to transcend from habits and customs and have a longer time to be recognised as law (‘static’ in character) — problem of staticity.! Unless an authority resolves dispute, administration inefficient. — problem of inefficiency.!

- Secondary rules are applicable on officials and marks transition from primitive to municipal legal system. These rules are about primary rules and resolve problems of primary rules.

- Three types of secondary rules— recognition, change, adjudication. - Uncertainty problem resolved — RULE OF RECOGNITION ! -

Specifies the features or characteristics a rule must possess if the rule is to be conclusively determined to be a legal rule. Staticity problem resolved — RULE OF CHANGE Governs manner in which primary and secondary rules may be introduced, modified and repealed. Inefficiency problem resolved — RULE OF ADJUDICATION Empowers certain individuals to authoritatively determine if a primary rule has been broken

- How do you then arrive at an ultimate rule of recognition? A legal system may have many rules -

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of recognition that need to be validated by higher rules, and then sill higher ones. Cannot have an infinite hierarchy of rules then. Hart: Ultimate rule of recognition — existence lies in practice of the courts, officials and private persons in identifying the law by reference to certain criteria. It is then a unified or shared official acceptance of the rule of recognition where officials themselves accept it as a s standard for determining the validity of other rules. [officials adopt critical reflexives attitude] Hart says that this is a matter of FACT and LAW. ! Whereby it’s existence can be observed objectively from an external standpoint by observing officials’ compliance with it. Law, because surely the rule identifying other rules of law should belong to the legal system. !

- Then external obedience to primary rules is enough to sustain the legal system. As the law does -

not compel individuals to think about the rightness or wrongness of their conduct from the internal POV. On the other hand, officials must have a critical reflexive attitude towards secondary rules. Not only comply with them, but also treat them as critical reflexive standard and evaluate their own conduct and the conduct of others on the basis and standard of such rules.!

- What law is — general and descriptive. Universally applicable across all legal systems. - Hart doesn’t insist on a sovereign bestowed with illimitable power. He achieves this though a reassessment of what is meant by ‘law’, specifically its internal aspects.

- He also departs from classical positivism’s perception of law from an exclusive external -

viewpoint wrt his idea that secondary rules need to be viewed with a critical reflexive attitude by officials. He emphasises positivism other’s core aspects like the separability thesis and recasts it in a manner where law is approximated closes to how we perceive it.

Ch.4 of Hart’s Concept of Law focuses on the Sovereign - Sovereign, and all law making bodies can be traced to this - who is this sovereign? can be been seen? - Hart critiqued Austin and Hart assumed this. Hart says the backbone of Austin’s ‘command -

theory’ is the sovereign. He summarises this as: any society that has a legal system, that society would have a sovereign who is habitually obeyed by everyone and who doesn’t obey anyone. Continuity of the law making authority and persistence of laws within that society is questioned. !

HABIT OF OBEDIENCE AND CONTINUITY OF LAW - Habits and what is really meant by a habit? How do they differ from rules? - Hart says viewing the obedience of laws as ‘habits’ is incorrect. - Hart notes the word ‘obedience’ — denotes a deference to an authority. We obey this authority. So then it’s less about habits, more about authority and less about punishment. This is missed by Austin. - Hart then presents a fictional society, Rex I’s reign. There was disturbance and upheaval, then people gradually followed him and this was commonplace enough. Then people formed the habit of obeying Rex I. It was enough for the purpose of Austin’s theory that there was a sovereign. ! Hart asks us to suppose that Rex II emerges. ! There is then a problem. ! Rex II is not someone that people are in the habit of obeying. Can’t be said of Rex II’s first order as it was said of Rex I’s last order. ! This would mean that people till would be in the habit of obeying Rex IIs orders, then there would be a period of no law being made. - Societies tackle this better, where transitions from one government to another is quite commonplace. How is that possible? How is the continuity explained? ! Hart says that despite the change in law makers, the law still continues smoothly because these matters aren’t governed by ‘habits’, but are done so by ‘rules’. So now, Hart compares rules to habits, and how they differ from each other. - Rex I perhaps laid down a rule that the ‘oldest heir would be the next ruler’ — thus people would know in advance that Rex II has the right and title to succeed. Thus people follow Rex IIs laws, without a habit being formed. The law making authority if qualified by a rule. - Hart claimed the two key-words missed out by Austin was this ‘authority’ and ‘rule’. ! ! RULES v. HABITS

- Both have the similarity that behaviour as a result of this is likely to be repeated in similar circumstances.

- Further similarity is the fact that there is an element of convergence - 3 critical differences: ! (1) rules have a critical reflective attitude. ! On part of the people towards rules in the sense that people look up to it as tenders. It’s not a blind-following situations. Because these rules set standards for people to follow. People judge behaviour of others and their own behaviours. ! People believe these rules are standards of behaviour. ! Habits are repeated by people without releasing that it’s a certain ingrained character. People consciously think of laws, but this isn’t the truth with habits. For example, people aren’t in the ‘habit’ of paying taxes, they consciously think of it and pay them! (2) rules are looked up as common stances of behaviour. ! If this isn’t followed, there is criticism, which is justified. A breach of the same adds a pressure of conformity. ! Eg. if someone stops drinking tea, there isn’t really criticism or pressure to restart drinking tea.! (3) a breach of a rule leads to criticism, and this is legitimate. ! Internal point of view. [Must/ought/right/wrong]! Related to critical reflective attitude. They go hand-in-hand. People have beliefs about the rules in questions because they play a standard setting role. ! legitimate criticism and legitimate need to conform. THE PERSISTENCE OF LAW Converse of question in previous section. ! Why is it that we follow laws of previous law makers, those who didn’t belong to our time. Why do they have binding force on us?! 1944 case: R v. Duncan // witchcraft case At that time, it was binding on Englishmen. 1735 Act, there was no ‘habit of obedience’ for those in 1940s to with regard to a 1735 Act, as Austin suggests. Yet, how does this ancient Act apply. What explains the persistence of law.

- Since laws are based on rules, all laws remain laws for all times, whenever enacted, unless they are expressly or impliedly repealed by a successive law maker.

- Credits Hobbes, Austin, Bentham: ‘the legislator is he, not by whose authority the law was first made, but by whose authority they now continue to be laws.’

- Hart says that this misleads us to find the true source of law. - A rule sets out in advance that all laws enacted by a valid law maker continue to be laws unless they’re expressly struck down by subsequent law makers. LEGAL LIMITATION ON LEGISLATIVE POWER. Hart reminds centrality of sovereign in Austin’s theory. ! According to Austin, though the people habitually obey the sovereign, the sovereign does not obey anyone. If the sovereign did, then the sovereign would be dependent on a superior society. Sovereign according to Austin must be legally unlimited and illimitable.

- Hart emphasises that when Austin said legally unlimited, he said there should be no legal limits on sovereign. The closes sovereign in the Westminster Parliament, Hart saw.

- The rules, Hart substituted for ‘habits’, and Hart says there are rules which speak of how the sovereign body exercises it’s law making powers. Manner and form Rules.

- While Rex may have no limitations on the content of laws, there may be rules that say that the

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words uttered by Rex in private capacity may not be laws; while words uttered by Rex in official capacity. There thus must be some procedure for these to receive the status of law. This is a legal limitation too. Except these manner and form or procedural rules. There also may be limitations on the substance of laws. Constitutions for example, impose certain standards on the substance of

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laws. No one can say that these are not independent legal systems, and don’t form part of an independent political society. ! Eg. Rex’s society, there is a rule that says that Rex cannot imprison people without trial. This is a limitation, not maybe w.r.t manner of how Rex is to legislate, but it’s still a limitation. Despite this, other laws enacted by Rex following proper procedure may be considered valid in society for all intents and purposes. Just because there are certain no-go areas, that doesn’t mean Rex’s society itself is not an independent legal system. !

THE SOVEREIGN BEHIND THE LEGISLATURE. Practically observable features in various societies.

- To exemplify certain limitations, he cites the Constitutions of USA or Australia. He cites the

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division of powers between the central government and member states where certain areas cannot be legislated upon. Same, ordinary legislative processes cannot amend scope of certain individual rights. If they were to extend the scope of these boundaries, they would be struck down by courts as being unconstitutional.! Eg. 5th Amendment of the US Constitution. Statues of US Congress have been struck down for being in violation of this. However, America still is an independent legal system. Special procedures, constitutional limitations as to substance (not just manner and form). Yet it is undisputed that these countries have their independent legal systems and independent political societies. Thus it is conceivable that there limitations on the legislative power. The question arises: where is Austin’s ‘sovereign’ in any society? Hart reminds us that even Austin had troubles identifying. Westminster Parliament isn’t wholly sovereign at all. Austin said it’s never the Legislature that constitutes the sovereign — it is the electorate collectively. Who are the electorate? ! Citizens in the capacity of electors. Those who cast votes in general elections. They are collectively known as electorate. ‘We the people’ in our official capacity are the sovereign. Austin is the trustee of the sovereign electorate, to exercise the sovereign powers of the electorate. They carry out this in further benefit of the electorate. ! Electorate issues commands to itself by Parliament which commands itself. Therefore, according to Hart that certain Parliaments have limitations, while others are practically illimitable has no bearing as the sovereign is the electorate. Written or unwritten Constitutions, this indicates a difference in societies only with regard to the method in which the electorate sovereign choses to exercise it’s sovereignty. According to Austin, either of the the two methods, sovereignty always resides with the people. Hart says that there’s a difference between the ‘official’ and ‘private’ capacity of the people or the sovereign electorate. Hart says that by drawing this distinction, Austin presupposes the existence of certain rules that qualify a person as a sovereign before they can become the sovereign. IMP. ! The fact that Austin speaks of the ‘official capacity’ of the people when they act as the electorate; and the ‘private capacity’ of the people when they act as private citizens. ! The fact that ‘we the people’ issue commands to ourselves through the parliament in our official capacity; and in turn we follow those very commands as private capacity citizens means that Austin has already presupposed that there are certain rules in place which qualify us when we are acting in an official capacity (how we can have a right to suffrage // how we become electorate) What Austin thus ended up impliedly admitting is that it is not the sovereign who made the rules in the first place, it is the rules which qualified the sovereign electorate to become to sovereign. If there are rules to qualify the sovereign to become to sovereign, then the rules pre-date and pre-exist the sovereign, which means that there are rules above the sovereign himself. He must comply with these to become to sovereign. !

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Then since there is the need for compliance to these rules; Austin defining the electorate in it’s official capacity as the sovereign is actually contradictory because that is not the sovereign. This is Hart’s view. You need not have a legally unlimited sovereign, but yes — you require a set of rules which will determine in advance, who will have law-making powers in a given society; and orders of superiority.

Ch.5 of Hart’s Concept of Law is where he lays down his own theory! Law as a union of primary and secondary rules - Of all varieties of law, a criminal statute, forbidding or enjoying actions under penalty resembles orders backed by threat.

- There are other varieties of law — concerning power to adjudicate or legislate, or those creating/ varying legal relations, which cannot be construed as orders backed by threats.

- Then there are legal rules which differ from others in the mode of their origin. They aren’t brought into being by anything similar to explicit instructions.

- Hart’s claim is that the ideas of order, obedience, habits and threats do not and cannot include the idea of a rule — without which we cannot elucidate even elementary forms of law. 1. Basic or primary type of rules. Based on the idea of what human beings are required to do or abstain from certain actions. - These type of rules impose duties - Concern actions involving physical movement or changes 2. Secondary rules These rules are parasitic upon, or are secondary to, the primary rules. They provide that humans may — by doing, or saying certain things — introduce new rules of the primary type, extinguish or modify old ones. - Rules of this type confer powers, private or public. - These rules provide for operations which lead to not merely physical movement or change, but to the creation or variation of duties or obligations.

- Hart claims that it is in the combination of these two types of rules, the ‘key to the science of jurisprudence.’

- Most features of law, that have proved to be perplexing and have provoked and eluded the -

search for definition can be rendered clear, if these type types of rules and the interplay between them are understood. These union of elements are accorded a ‘central place’

IDEA OF OBLIGATION Hart begins by saying that the theory of law as coercive orders began with the right starting point — that where there is law, there is human conduct, is made in some sense non-optional or obligatory. — From here, need to appreciate errors in the theory Hart brings in the situation of a gun-man. - In the situation of a gunman, it shows the notion of obligation or duty in general. - Legal obligation is to be found in this situation, where A must be there sovereign habitually obeyed and orders must be general, pressurising courses of conduct — not single actions. - Rather, in the situation — B, if he obeyed, would be obliged to hand over his money. - It would be to misdescribe to say that B had an ‘obligation’ or ‘duty’ to hand over his money.

From here, he explains the essential difference between someone ‘obliged’ to do something; and the assertion that someone is ‘obligated’ to do it. - Saying someone is ‘obliged’ is a statement about his beliefs and motives with which an action is done. So B, handing over his money did so because he believed that harm would come his way if he didn’t.! — Here the prefect of consequences of disobeying renders what he would have preferred (keeping money), less eligible. ! Further complications:! ——What happens when the threatened harm is trial in comparison to the disadvantage. [eg. if A threatened to pinch B]. ! — Here one wouldn’t say that B was obliged, because no reasonable grounds to think harm would come his way. - Thus saying someone is obliged is a psychological one referring to beliefs and motives with which an action is done.!

- But a statement that someone ‘had an obligation’ to do something is different. It is not just about -

beliefs and motives in the gun-man situation. In fact, belies and motives are not necessary for the truth of a statement that a person had an obligation to do something. So the obligation that someone had to tell the truth, or that he had to report for military services remains true even if he had nothing to fear from disobeying. Moreover, the statement that one was obligated doesn’t mean that he actually did it. Obliged normally carries the implication that it was done.

Reasons for objection to predictive theory of sanction. I. Where rules exist, deviations aren’t just grounds for a prediction that hostile reactions will follow, or sections will apply. But they are also a reason for such reaction and for applying the sanctions. II. If it were true that the statement that a person had an obligation, meaning that he would be likely to suffer in the event of disobedience, it would be contradictory to say that he had an obligation. • But says the in a normal legal system, sanctions are there for a high proportion of offences. • So when a statement is made that a person has an obligation and that he will suffer if he disobeyed can both be true. ! Social Rules. • Existence of such social rules, making certain types of behaviour a standard is normal, backgrou...