Hart\'s Concept of Law - Lecture Notes on Hart\'s law PDF

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Lecture Notes on Hart's law...

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Hart's Concept of Law Hart was an Oxford Professor who felt the approaches of other Positivist thinkers such as Bentham and Austin were narrow and inadequate in explaining what law was. Hart asserted that the main reason why the question of What is law? Had not been successfully answered over many years was because of three main recurring issues which underpinned this question and which had not been properly dealt with namely. The roles in defining law of: Coercion How does law differ from and how is it related to orders backed by threats? Rules What are rules and to what extent is law an affair of rules? Morality How does legal obligation differ from and how is it related to moral obligation? For Hart the efforts to provide a clear-cut definition in answer to the question What is law? Have ended with many previous writers on the subject limiting their consideration to only one or other of the above issues Hart felt that these 3 things needed better explanation and needed to be defined more as they were very narrow in meaning. Hart believed that a fresh approach was necessary in attempting to answer the question of What is law? he is trying to explain how the legal system works. Hart believed that law was a complex social phenomenon which was linked to other social phenomena in various ways. He wants to look at laws and legal rules as a type of social phenome. Hart felt earlier command-based Positivist theories focussed mainly on the fact law could be identified when people obeyed the same out of ‘fear’ (‘the external element’). Hart felt this approach was too limited. Hart felt that this

explains criminal law but not explained other things and was limited focused to much on fear and restricted. This was not sophisticated. . Hart felt that this did not present a balanced enough picture of law as a concept. By solely focussing on the commands of a sovereign, i.e the imperative aspect of law Hart felt that these positivist thinkers had missed what he called the ‘internal element ’ or ‘internal point of view’ which necessarily characterises all law. Hart claims it is the internal point of view, which makes people feel a sense of obligation to obey the law. internal point of view is the feeling to obey the law and want to live in order and justice. Earlier this aspect was not viewed. Hart claimed the difference could be illustrated thus:‘To be obliged’ was where one was forced to act because of some threat, e.g where an armed policeman says ‘stop’ (external aspect), whereas ‘to be under an obligation’ i.e. to feel within oneself a sense of duty to act in a certain way without some external threat compelling action (internal aspect). Hart felt ‘Positivist Command theories’ only explained law in terms of the first example not the second (above). Explained them in an external aspect.

Rules and the External/Internal Elements of Law Hart in the Concept of Law (1961) puts forward an exercise in analytical jurisprudence, to examine law, coercion, and morality as interrelated but albeit distinct social phenomena and to examine how legal rules represent a form of social control. Looks at the relationship between legal rules and moral rules. They can overlap. However, he believes they should be separate from moral rule. Hart concedes that law is a social phenomenon which can only be understood in terms of social facts, such as societal attitudes and the language used by people in expressing their conceptions of law, morality, and coercion.

Hart therefore claims that his work is very much an exercise in descriptive sociology, as it seeks to explain the law in terms of its social context. Hart is however a type of positivist, but his intention is to provide an ‘improved positivist account of the law’. there may be an overlap, but law should be separate from moral law. Hart claims that there is no necessary link between law and morality and although there may be similarities between them the two must always be kept separate. He is not a natural lawyer.

Hart adheres to the positivist general view that laws are valid if created in accordance with the requirements of proper law making in a given society irrespective of whether that law is good or bad. Hart sees law a matter of rules. He claims rules are statements of accepted standards of behaviour. Law is a system of social rules as is morality, both arising in ‘social’ setting, i.e. society.

Hart claims however rules of law are different from rules of morality in a number of ways. Hart claims the main distinctive element of law is that its rules have what Hart calls a ‘systematic quality’ – i.e. that rules of law are of different types and each category of legal rule interacts with the others in a manner which enables them to be called a system. Hart claims rules of morality lack this ‘systematic quality’. Rules of law fall into two categories, Primary Rules and Secondary Rules. Hart claims it is the interaction between these primary and secondary rules

which creates a legal system.

Hart’s Categories Of Legal Rules Primary Rules Hart claims these are the basic duty imposing rules of law, which specify what people ought to do and ought not to do. These rules create obligations within which members of a society are required to comply e.g criminal law, tort, etc often enforced by officials’ police, courts etc In a pre-legal society, e.g nomadic/tribal community of people, which does not have developed western style legal structures Hart claims there would still exist legal rules as these rules would be accepted by the majority of the community, as detailing acceptable behaviour etc. Hart claims the validity of such rules in such a society would depend on the ‘internal point of view’ of the members of that society – i.e the sense of obligation members of that society would feel in wanting to abide by and obey its rules.

Hart claims however the legal rules of behaviour in such a pre legal society would not give rise to legal system because: -

(i) The problem of uncertainty – it would always be difficult to determine whether a certain rule was a rule of law or custom, convention, morality, or religious custom.

(ii) The problem of the static nature of laws – even where rules of law were known new situations might arise which would need immediate modification of an existing rule to cover that situation/development of a new rule.

Hart claims it would not necessarily be easy to create with sufficient expedition a new rule through the process of establishing consensus among the members of a pre-legal society. (iii) The problem of inefficiency – Where rules of law were broken there would always be difficulty in ascertaining the reality and extent of the breach as well as in determining the extent of compensation or the severity of punishment’s

Self-help schemes in this respect would result in a wastage of resources. To resolve these difficulties Hart says we need different set of rules to determine processes of creation validation transformation and adjudication in respect of the primary rules of law. Primary rules say do not do stuff. These rules are not enough, you also secondary rules. Secondary Rules To have a legal system Hart claims you also need secondary rules, i.e rules of law which are brought into existence for the purpose of governing the creation and operation of the primary rules and so as to resolve the problems (identified above) in regard to a legal arrangement in which only primary rules exist. Hart claims Secondary Rules are power-conferring rules in that they give the ability to some person or body of persons to do something with regard especially to primary rules, (such power can be exercised over secondary rules also). Hart says a criterion for the existence of a legal system is the acceptance of secondary rules by officials (police, judges etc) as well as of the primary rules by a majority of citizens. Both of these rules create a valid legal system.

(i) The Rule of Recognition is a secondary rule. This is the ultimate rule which determines the existence and validity of all other rules in a legal system. Although a secondary rule it lies at the heart of a legal system because it is by reference to it that any other rule can be classified as a rule of law. The rule of recognition resolves the problem of uncertainty as to the legality and validity of rules. Plays a vital rule to tell us whether a rule is a legal rule or a moral rule.

The Rule of Recognition is itself identified by determining the formal criteria by which officials in a particular legal system decide what rules are valid rules of law. The Rule of Recognition therefore may not be set out or written down, it may be conglomeration of rules setting out the accepted formal sources of law in a society. It serves to identify the source(s) of law. when we come across as rule if we apply the rule of recognition to it we can work out whether it is in fact a rule of law or a rule of morality. Thus the Rule of Recognition in England & Wales would:‘Whatever the Queen in Parliament enacts and whatever byelaws and regulations are enacted in pursuance/accordance with the powers set out in enabling statutes…and the rules originating from custom properly adjudged to be law by the courts and whatever precedents are accepted at present by the higher courts of the land as accurately specifying the laws of this country, shall be the valid laws of England & Wales’. The Rule of Recognition thus resolves the problems of uncertainty in the law by establishing a formal distinction between those rules which are law and those which are not. Thus, the Rule of Recognition can be used to determine the separation between legal rules and other social rules such as moral rules, social customs etc, (e.g taking one is hat off in church etc). these are social customs because you cannot trace the origin of the statute. Therefore, not a rule of law. (ii) The Rules of Change Rules of Change are necessary to enable changes to be made in the legal obligation which people may have under the duty-imposing primary rules of a legal system. Such changes may be in the public sphere where the State imposes certain duties on citizens, or they may be in the private sphere, where citizens create certain legally binding obligations amongst themselves. Legal system has to be flexible, so primary rules has to change with society. It has to change and adapt.

Private rules of change These rules enable changes to be made in the legal relationship which private persons have with one another e.g rules of contract law. Such rules confer power rather impose duties on citizens in their private capacity. Public rules of change These rules give power to officials in their public legislative capacity to change, repeal and update primary and other legal rules etc. Rules of change then exist in a legal system to resolve the problem which may arise in ‘pre-legal’ situation in respect to the various laws being static and not being capable of expeditious change to cover new and unprecedented situations. iii) to have a valid legal system you need The Rules of Adjudication These rules confer power on judicial officials to carry out the process of adjudication where a dispute has arisen, or a law has been breached. Such rules set the standard for the proper determination by the courts of the instances, the extent and the commensurate punishment or compensation for any breach of the law. These rules exist to resolve the problems of inefficiency which might arise in a pre-legal society where there would be no courts to adjudicate and no way of knowing for certain when a rule of law has been broken and how the situation should be dealt with. Rules of Adjudication to Hart is that its an essential form of secondary rule. And is an essential ingredient to having a valid effective legal system. Conclusions of Hart Hart believed in his ‘union of primary and secondary rules’ he had found ‘not only the heart of a legal system but a most powerful tool for the analysis of much that has puzzled both the jurist and the political theorist. Hart believed his approach to identifying law was superior to previous attempts because it allows one to see legal phenomena not in terms of isolated precepts with no link to social reality, but as a unified system of social control predicated upon the Rule of Recognition, enabling us to better explain the related notions of legislation, jurisdiction, validity and generally of legal powers, private and public.’ Harts give a sophisticated positivist account of law.

he believes law is something in tis own right. It is sperate from morality and ethics. Separate from religion law is self-contained. To him law is unique because there is a system....