Hart\'s concept of law - A summary of HLA Hart theory in jurisprudence that is good for your readings PDF

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A summary of HLA Hart theory in jurisprudence that is good for your readings...

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Chapter 2 - Hart’s concept of law Introduction: Hart was a leading figure in the post-war movement for the revival of interest in the philosophy of law in relation to the much wider field of general philosophical enquiry. He was interested particularly in the development of the doctrine of legal positivism and set out his view of the fundamentals of a legal system in ‘The Concept of Law’. Hart viewed law as a social phenomenon/social control its study involves the recognition of the ‘characteristics of human condition’ i.e. human vulnerability, approximate equality; limited altruism (human altruism is limited); limited resource; and limited understanding and strength of will. These five ‘characteristics of human condition’ Hart refers to it as the ‘Minimum Content of Natural Law’. However, he made it very clear that it is lacking of any moral philosophy.

As to the connection between law and morality, Hart insisted that the connection was not a necessary one. Law can still exist without morality. Law can be moral, immoral and amoral. Legality is one thing; morality is another. Hart’s Nature of Legal Theory: Hart identifies three recurrent questions which are related to law: (i) Hart rejects that citizens obey the law simply out of fear or habit. According to him, in a developed society, people obey the law out of the a sense of obligation. Thus, he replaced the idea of command (attributed to Austin) with the idea of a rule. (ii) to what extent is legal obligation different from moral obligation (see his moral principle of Nulla Poena Sine Lege).

Prof. Hart expounds his view of morality. He claims that there is no necessary connection between law and morality. However, this does not mean that he has no view on morality. In ‘Liberty, Law and Morality’ Hart discusses the role of morality in law creation. Hart subscribes to paternal morality (to save people from harm) and does not approve conventional morality.

(iii) to what extent is law an affair of rulesHart saw ‘law’ as a means of social control that is to say law is purposive in that it seeks to regulate societal relationships and it is also normative in that it is seen as a standard behaviour. He thus, replaced the idea of command with the idea of a rule. This is because a rule is broader than the concept of command e.g. a rule has elements which command may not have i.e. the internal point of view, the obedience in the absence of fear etc(the awareness of, and support for, a social rule)

Meaning of Legal Positivism

Hart’s View on the Term ‘Law’:

Legal positivism is used to signify a doctrine which rejects any metaphysical speculation concerning law. In other words, it is considered as a view of law which takes into account the positive law only i.e., law as it ‘is’ and not law as it ‘ought’ to be.

Hart refused to use the word ‘law’ because jurists cannot agree on its meaning. He wanted to avoid the danger of adopting a wrong definition of any concept. To him, it is impossible to find a class or family of meaning (genus) to which law belonged.

The term ‘legal positivism’ can best be summarised by this statement: “The existence of law is one thing; its merits and demerits another...”

Hart stated that to define the term ‘what is law’, would be by way of comparing the possible usages of the word, placing them in different contexts and different sentences i.e.

observing the usage of ‘normative language’ e.g. “But you promised”- which shows that a rule exists which justifies keeping of promises. It is not merely predictive; “You better not park your car near the yellow line” or “stop, on the light turning red”. All these according to Hart implies acceptance of certain correct standards of behaviour (rules). Hart also tried to come up with a distinction which formulate the cause of ‘nature and laws’ which governs the conduct of man. Hence, as a result of that distinction, Hart could perceive the difference between ‘science and law’ through linguistic practices. For example, we find that we do not say that birds ‘break’ the law if they do not fly south during winter but ‘reformulate’ our understanding of the flight of birds. Furthermore, the same could not be said of a thief who ‘breaks’ the law when he steals. We find that ‘law’ is often associated with ‘law impregnated words’ such as ‘ought’, ‘would’ or ‘should’. According to Hart, in law it is possible to know but not to understand. Thus, Hart tried to help our understanding of law by elucidating on the concept and discussing the basic characteristics of rules. These characteristics are: (i) (ii) (iii) (iv)

legitimacy and authority normativity/bindingness continuity the internal point of view.

Hart’s Idea of Viewing ‘Law’ as a ‘RULE’: According to Hart, the basic failure of Austinian model is its neglect of a concept of a rule. Hart argued that to understand the foundations of a legal system, rather than an account based on habitual obedience to the commands of unlimited sovereign, a necessary insight will be that laws are a specifies of rules and ultimately the foundations of a legal system will be based on the acceptance of a fundamental rule.

Hart saw ‘law’ as means of social control that is to say law is purposive in that it seeks to regulate societal relationships and it is also normative in that it is seen as a standard behavior. He thus, replaced the idea of command (attributed to Austin) with the idea of rule. This is because a ‘rule’ is broader than the concept of command e.g. a rule has elements which command may not have i.e. the ‘internal point of view’, the obedience in the absence of fear etc Hart argued that in every society there are certain matters that influence human behaviour and this can be divided into: (i) Social habits-which may be exemplified by the phenomenon of members of a group of friends who visits the Cinema every Saturday evening. This is an aspect of the group’s ‘habitual conduct’. To Hart, social habits are not rules. Social habits possess only an ‘external aspect/external point of view’ (ii) Social rules- are of much greater significance in an analysis of what is meant by ‘law’. When a social rule is broken, criticism will almost invariably result, because a fault has been committed. For ‘social rule’ to exist, at least some members of the group must be aware of the existence of the rule, and must strive to see that it is followed, as a standard, by the group as a whole. If something is a ‘social rule’, then we find that such words as ‘ought’, ‘must’, ‘should’ are used in connection with it. Thus, ‘social rules’ possess both ‘external aspect’ and ‘internal aspect’. According to Hart, rules which constitute ‘obligations’ may be divided into two categories and they are: (a) Rules which form part of the moral code of the society concerned. These rules are therefore moral obligations. Such obligations may be wholly customary in origin. There may be no central body responsible for punishing breaches of such rules.

(b) Rules which take the form of law- even if a rudimentary of primitive kind of law. A rule will come into this category if the pressure for conformity includes physical sanctions against a person who breaks the rule-even if the sanctions are applied, not by officials, but by the community at large. Note: In case of both (a) & (b), there is a serious social pressure to conform to the rule, and it is this which makes the rule an obligation as opposed to a mere social convention, or even habit Primary & Secondary Rules: According to Hart, in every developed legal system there are two types of rules i.e. primary and secondary rules. Hence, the quintessence of law and legal system could be understood by a ‘union of primary and secondary rules’. Primary rules are generally duty imposing. These resemble criminal law which restricts acts of violence (murder, battery, rape etc), acts against property (theft, robbery, criminal trespass etc). In other words, primary rules of obligation generally concern requirements to perform, or abstain from, specified types of activity (rules of obligation or duty). Hart argues that if a society is to operate solely on the basis of primary rules, certain conditions arising from human nature and the very world in which we live would have to be satisfied. For example, the rules would have to contain restrictions: ‘on free use of violence, theft and deception to which human beings are tempted which they must, in general repress, if they are to co-exist in close proximity to each other’. According to Hart, ‘secondary rules’ are ones which let people, by doing certain things, introduce new rules of the first kind, or alter them. They give people (private individuals or public bodies) power to introduce or vary the first kind of rule. In other words, secondary rules are power conferring.

Hart argues that the defects of the primary rules-only system may be remedied by the introduction of a system of secondary rules which will act as supplement to primary rules. These secondary rules are ‘parasitic’ on the primary rules and will allow members of the community, by performing actions or saying things, to introduce new types of primary rules, modify old rules and control the operations and effects of primary rules. Hart suggests that introducing remedies for each of the defects of the primary rules-only system would constitute ‘a step from the pre-legal order into a legal world’. In other words, heading towards a ‘developed legal system’. Still on the secondary rules, Hart argues that such rules are classified into three categories i.e. rule of recognition, rule of change and rule of adjudication. (a) Rule of Recognition It is the ultimate rule that determines the existence and validity of all other rules in a legal system. In other words, it is the heart of a legal system. For example, the ‘rule of recognition’ describes what usually officials understand as the ‘sources’ of law. The ‘rule of recognition’ resolves problems of uncertainty in primary rules i.e. Formal distinction of what is law and what is not. For example, it helps to separate between legal rules and other social rules which are based on morality, coercive norms etc It can counter the ‘uncerainty’ of traditional law. Law is only valid once it goes through ‘rule of recognition’. For example, in malaysia, the law will become valid when it goes through the first reading until the executive signing. (b) Rule of Change This rule confers powers to legislators, judges and officials to amend, repeal, enact new rules. Thus, the ‘rule of change’ plays the role of

remedying the defect of staticness caused by primary rules. In the area of private law, the ‘rule of change’ enables the private citizens to change their legal position through the conferment of power to make wills, marry, make contracts etc. This rule specify how legal rules can be amended or repealed. They keep society dynamic and counter the ‘static nature’ of the traditional law. For example, in MY, article 159 of FC contains power of simple majority to amend ordinary law and 2/3 majority to change constitution. The system must have some mechanism or method to complement all these changes. (c) Rule of Adjudication It is a rule conferring power on judicial officials to adjudicate on disputes and breach of law. In other words, it is a rule setting out standards for determination by courts of the instances, extent and the commensurate punishment or compensation for any breach of law. Criticisms on Hart’s Distinction of Primary and Secondary Rules: Cohen argues that the ‘rule of recognition’ does not always confer powers. He claims that the main function is mainly to ‘identify’, to ‘make it clear’ or to ‘determine the scope of certain rules’. Certain secondary rules are duty imposing in nature such as; Hughes argues that the ‘rule of recognition’ could be said to impose duties upon judicial officials to exercise their adjudicative powers by applying laws satisfying certain criteria. For example, the ECA 1972 which imposes a duty on a judge to give precedence to community law. Rules of adjudication also imposes duties as well i.e. the rules of adjudication such as ‘exclusionary’ rules of hearsay, rules on admissibility of a confession etc impose duties on judges to exclude them .

Cohen once again argues that the labelling of the rules of evidence and court procedure as secondary rules (often labelled the secondary rules of adjudication) distorts the real function of these rules. For example, the rules of evidence are not merely ‘adjuncts’ to rules conferring powers upon officials to adjudicate. It is better to see them as an independent body of law, which is being developed separately. Sometimes, a ‘primary rule’ could be about another ‘primary rule’ as well. This is because certain elements of a ‘primary rule’ rides on another ‘primary rule’, constituting a new offence. For example, we find that the basic elements of theft in an offence such as burglary. Irrespective of the criticisms raised by the critics, it is possible to defend Hart from such attacks by basically stating that he merely wanted a ‘very loose’ and ‘general’ classification of rules. He is just appealing to the ‘uncontroversial’ (in this sense, undeniable) fact that we do indeed think of laws as consisting of primary and secondary rules. This unrigid classification is clear when Hart says that he is merely ‘distinguishing certain laws under the very rough head of laws that confer powers from those that impose duties’. CONCLUSION As regard to Hart’s theory, it is agreed that there are loopholes in MY’s legal system but the idea of judicial discretion is not really accurate due to the legislation should not be the job for the judges as it is known that separation of power is the rule of law. Thus, hart’s theory is arguably cannot be considered accurate bcs has its own strong and weak point....