JURISPRUDENCE 1 - HLA HART PDF

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Mn Hanis Zulaikha H.L HART Legal positivism is school of thought which originated in Britain during 19th Century and sought to divorce the law from consideration of morality and ethics. It is a made of jurisprudential analysis, which involves a scientific or empirical study of body of rules, called ...

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Mn Hanis Zulaikha H.L.A HART

Legal positivism is school of thought which originated in Britain during 19th Century and sought to divorce the law from consideration of morality and ethics. It is a made of jurisprudential analysis, which involves a scientific or empirical study of body of rules, called “laws”. The essentia; presupposition of positivist theory is the recognition of the fundamental difference between the “ought” and the “is”, with the law being an expression of the latter. Positive law signified law by position, in which law was thought to be posited in will theory where itb was the expression of will of the law-giving authority.

Among the positivist thinkers Hart is one of them who very efficiently criticizes his earlier positivist theory with an explicit motive to describe the legal system of a society. In his book “THE CONCEPT OF LAW”, published in 1961, He has made an attempt to describe the development of legal system from primitive to evolved legal system. Hart criticised Austin’s Command theory because it fails to explain why statute applies to its framers and does not apply to law which give powers. He replaced the idea of a command with idea of a rule. The concept of a rule is broader than that of a command because a rule has elements which a command may not. To Hart, a rule has internal aspects or core values used as a standard to judge and condemn deviation that us the natural law aspect of the law.

His theory of law is based on the habit of obedience. The main features of his theory is that every rule has an internal or external aspect. The external aspect of a rule is what an outsider observes about people and their response to a rule. It comprises of behaviour which is not prompted by social rule, but is the result of habit. Meanwhile, Internal aspect of rule refers to why people obey a rule. It comprises of social habits and social rules. It invites criticism and provides justification of such criticism. Which it means awareness and support for a social rule.

According to him,every legal system is a combination of primary and secondary rule. The legal system is a union of oth rules. Primary Rules is a rules which regulate behaviour and impose duty upon individuals. It concern actions involving physical movement or changes. Their “force depends on their acceptance by majority. This rule can at time be rather

Mn Hanis Zulaikha uncertain. This is because if you have such rule that impose obligation, they cannot remain static. A good legal system is the one evolve around time. Not only that, but it is imperative that Primary Rules must change over time, because world is constantly changing. The values, technology, society and economy evolve over time and thus law must evolve with them.

For example, ack then, during our grandparent’s time, people were not allowed to let their horses gallop down a street near a church. Today, the law sets speed limits for cars. It can also be seen in the business system. Before this all transaction for business are being done face to face and physically. But due to development in Technology, now, people can do an online business (online transaction). Thus, a new law to govern such transactions and business has develop to protect the rights of buyers and sellers in e-commerce transaction.

Next, is Secondary Rule. It is rules which confer power. It provides for the certain or variation of duties or obligations. These rules cured the defect in the primary rules. To Hart, a society which possesses only primary rules are in a pre-legal condition and suffers from inefficient because maintenance of absence of authoritative arbiters of dispute. However, these limitations can be overcome by giving people or any authority power to change law or else law will remain static.

Hart further stated and established 3 types of secondary rules. Which is, Firstly, Rule of Change. These rule facilitate legislative or judicial changes either to primary rules or to secondary rule themselves. Second is Rule of Adjudication. These are rules which gave power to court or decision makes to settle dispute. It can impose sanction to member of public and conformity to those rule is important as it creates pressure to comply so you will not be punished.

If there is any defect in Primary Rule, you can read together with Secondary rule. Primary rule does not exist by themselves because primary rules only impose power. Thus, they co-exist. Secondary rule can provide remedies when there’s uncertainty in primary rules and supplement them.

Mn Hanis Zulaikha The third rule is Rule of Recognition. To determine criteria governing the validity of rules of the legal system, people have to find out to know whether law is valid ad what is law in Malaysia. Basically, it is a law consist of primary and secondary rule. In it simpler form of society, we must wait and see whether a rule gets accepted as a rule or not whereas in an advanced system of law we can say before a rule is actually made that it will be valid if it conforms to the requirement of rule and recognition.

Legal system has faced the difficulty due to the uncertainty of the primary rules, so hart has made a solution to this problem by providing a new secondary rule which has a binding effect named as ‘Rule of Recognition ’. This rule can determine which rules are binding by referring to this rule about rule which hart called the rule of recognition. The rule of recognition removes the uncertainty of primary rules and it distinguish other rules into two categories, one is rules of the group which are supported by the social pressure that the group exerts and another is the rule of the other than the group. The second kind of rules are not supported by the organized social pressure rather than informal social pressure. On the other hand the first category of rule has been supported by the organized social pressure. In these way the rule of recognition evolves and it enlightens a new dimension in the pre existing legal system to a new legal system.

The rule of recognition thus performs the following functions :- To establish a test for valid law in an applicable legal system. Secondly, To confer validity to everything else in the applicable legal system and lastly To unify all the laws in the applicable legal system.

According to hart, rule of recognition is the foundation of a legal system and it is accepted by both private persons and authoritative criteria for identifying the primary rules of obligations. These include reference to authoritative text, legislative enactments, customary practice and general declaration of specified persons or to past judicial pronouncements in particular cases. In a modern legal system where there are too many sources of law the rule of recognition became complex, so it includes constitutional enactments and precedents. So the sources of law comes under the purview of rule of recognition as it has power to give validity a particular rule derived from that sources. In most of the legal system, the rule of recognition is not stated but it is shown in such a manner so that a particular rules are identified either by

Mn Hanis Zulaikha the courts or by other officials and “ when a court reaches to that conclusion on the footing that a particular rule has correctly pointed out and termed as law it has obtain a special authoritative status and validity.”

Rule of recognition specifies the ultimate criteria of validity in the legal system and this rule has been practiced by the officials who have taken an “internal point of view” of this rule of recognition so that they can use it as a standard for evaluating and maintaining the regularity of behavior of the people. The expression ‘internal point of view’ has been simplified by Hart by saying that it is the law that find not only in the lips of the judges but of ordinary men living under a system when they identify a given rule of the system.it is naturally used by one who accepts the rule of recognition and without stating the fact of its acceptance apply the rule recognizing some particular rule of the system to be valid. Rule of recognition is an ultimate rule which secures the existence of the primary rules and it is ultimate because when there is no legally limited legislature there exist a ultimate rule of recognition which provides a set of criteria of validity to the other rules where one of the rule is supreme.

CRITICISMS

Hart’s theory of rule of recognition is not flawless. According to hart every legal system specifies one and only one rule which specifies the content of that legal system. But many philosophers termed this theory both under inclusive and over inclusive. Regarding the under inclusiveness it is argued that though the rule of recognition characterize the content of legal system, but hart never disclose what makes the rule of recognition a rule. Joseph raz points out that most legal system have several rules of recognition of which no one is ultimate. For instance, if the governor of state issue an executive order, according to Hart’s doctrine such an order became applicable throughout the state and it is a part of the law of the state as it is endorsed by the same rule of recognition which validates the uniformity of all the laws of that state. But the critics of hart’s theory point out that without establishing the uniformity in the state law it can not be said that a particular executive order became the part of that state law.

Mn Hanis Zulaikha Hart theory is not only under inclusive but also over inclusive. According to hart, the law consist of all the norms that the legal participants under a duty to apply those norms in their official capacities. In his theory hart exclusively focused on judges. Rule of recognition being an duty imposing rule confer a legal obligation to the judges to apply the same law on different jurisdictions. But joseph raz criticize this view by saying that “ there is no reason to believe that valid norms belonging to one system cannot conflict”. Judges are often under an obligation to apply laws of other jurisdiction. So the hart’s doctrine of rule of recognition is under inclusive.

Secondly, the objection raised relating to the social practices which are capable of generating rules. According to hart’s doctrine Rules are central to the concept of law in at least two respects one pertaining to certain propositional or linguistic entities, the other to certain kinds of practice within a community. It treats certain norms as law only if they comply with certain criteria, and for that norm to comply with certain criteria . the notion of a rule of recognition fuses these two senses of rule being both a secondary rule within a legal system and an important social rule within legal community. the normativity of law cannot be taken account without make it clear that whether the rule of recognition is power conferring or duty imposing.

As per hart’s point of view the rule of recognition exist in any system if they are accepted and practiced from the internal point of view. The rule of recognition need not to be accepted morally,it need to be followed. The rule of recognition is a social rule because it has the content of certain social facts as well as it is a particular kind of social practice. According to hart the social rule account captures the the nature of rules of recognition in a legal system. But in his theory he focused on the conventional social rules which include the rule of recognition also and it is also used to evaluate the validity of norms and behavior falls within their purview. But Ronald Dworkin rejects the social rules view for law or for social practices. It is that he insists that judges in reaching conclusions about legal validity must be operating from premises about what there is a moral duty to do. He is of opinion that the mere inclusion of social facts is not make a rule social. A rule can become social in nature when most of the members of the group accept that rule. On the other hand a normative rule provides reasons for action and only then can confer power and impose duties. So, according

Mn Hanis Zulaikha to dworkin, secondary rules are not social in nature,they are power conferring and duty imposing based on moral principles.

Thirdly, according to hart the secondary rules derive their content from consensus. But when there was lack of consensus over a matter then disagreements comes into picture. The best example for this the clash between originalism and constitutionalism while interpreting the constitution. For instance, the interpreting the provisions of U.S constitution the interpretative methodology was followed either according to original understanding or intention of the framers regarding any provision of the constitution or according to the understanding of that provision in the light of present cultural and social background. So the disagreement arises relating to the adoption of interpretation of the constitutional provision. Dworkin’s argument for disagreement runs as follows:- there is not a rule of recognition that satisfies the condition that hart sets out for social rules. Since there is often a controversy over what criteria is necessary to be used in determining the criteria of legal validity. According to the social rule model a rule of recognition is a social rule and a social rule is one which the members of the community are agreed upon. Hart replies that all disagreements which dworkin takes a s evidence that there is no rule of recognition that is agreed upon are better interpreted as disagreements in application of an agreed upon rule. Dworkin has pointed out that whereas the rule of recognition can determine the dispute over criteria of legal validity. In this respect originalistic method is the best way to do this because the legal validity should be understood on the basis of the moral principles not on the basis of social facts. It is the drawback of hart’s doctrine that he cannot explain how disagreements about the criteria of legal validity which occur within the actual legal system are possible.

Mn Hanis Zulaikha 1.

CASES WHEN OFFICIALS THEMSELVES DOES NOT FOLLOW THE LAW.

1.1.

Ah Thian v Govt of Malaysia Tun Suffian LP: The doctrine of supremacy of parliament does not apply in Malaysia, here we have a written constitution. The power of Parliament and State Legislature in Malaysia is limited by the constitution and they cannot make any laws as they please.

1.2.

Tun Salleh Abbas - Judiciary  Former Lord President Tun Salleh Abbas and five ex-Supreme Counct judges were indeed sacked and the pension paid to them was on “compassionate grounds”.

Former Prime Minister Tun Dr Mahathir Mohamad, who was in charge of the Government’s administration during the 1988 sacking, said that “as far as he knew”, Salleh was “sacked” by the tribunal set up to try him.

1.3.

Tun Sri Md Raus Sharif and Tan Sri Zulkefli Ahmad Makinuddin July 10 2017: The recent appointments of Chief Justice Tan Sri Md Raus Sharif and Court of Appeal President Tan Sri Zulkefli Ahmad Makinudin as additional judges in the Federal Court are unconstitutional, claims the Malaysian Bar.

The appointments of YAA Tan Sri Dato’ Seri Md Raus Sharif, Chief Justice of the Federal Court of Malaysia (“current Chief Justice”) and YAA Tan Sri Dato’ Seri Zulkefli Ahmad Makinudin, President of the Court of Appeal, as additional judges have the effect of keeping them in judicial office beyond the age limit of 66 years and 6 months prescribed in the Federal Constitution, and is troubling. The appointments are purportedly pursuant to Article 122(1A) of the Federal Constitution, on the advice of the then-Chief Justice, YAA Tun Dato’ Seri Arifin Zakaria (“former Chief Justice”) on 30 March 2017, a day

Mn Hanis Zulaikha before his retirement.

The Malaysian Bar is of the considered view that these appointments are blatantly unconstitutional. It is unambiguously stipulated in Article 125(1) of the Federal Constitution that “a judge of the Federal Court shall hold office until he attains the age of sixty-six years or such later time, not being later than six months after he attains that age, as the Yang di-Pertuan Agong may approve”.

1.4.

Emergency power, NSC without YDPA’s Consent 2016 Article 66 (4A) permits the King to be bypassed but cannot apply to other institutions and agencies with constitutional role in law-making.

For the first time in the history of our Constitution, a Bill became law without the consent of the Yang di-Pertuan Agong. This was when the National Security Council Act 2016 (NSC Act), passed by the two Houses last December, was gazetted on June 7 without royal assent.

This draws attention to the complex constitutional procedures for enacting laws and specifically to Article 66 (4A), which permits the Government to bypass the King.

Bypassing the King: Under Article, 44 Parliament consists of the Yang di-Pertuan Agong,

Dewan

Rakyat and Dewan Negara. In normal

circumstances, royal assent is needed for a Bill to become law.

However, in the event that the Yang di-Pertuan Agong refuses or delays assent, Article 66 (4A) provides that the Bill shall become law 30 days after it is presented to the King.

Mn Hanis Zulaikha 1.5.

Dato’ Seri Anwar Ibrahim v Perdana Menteri Malaysia The letter of dismissal need not come from YDPA. It is sufficient for the YDPA to e informed before the PM dismisses his colleague by a letter in his own hand.

1.6.

Corruption: 1.6.1.

Finance Minister, Lim Guan Eng (2018) He was charged with using his position as chief minister to gain gratification for himself and his wife Betty Chew by approving the application for conversion of agricultural land to a public housing zone in Balik Pulau to Magnificent Emblem Sdn Bhd.

He faced a second charge of using his position to obtain a plot of land and bungalow at No 25, Jalan Pinhorn, on July 28, 2015, from Phang for RM2.8mil, at below market value.

1.6.2.

Law Enforcement - Police (Bribery) SHAH ALAM, March, 2013 - A female police officer was charged at the Sessions Court for receiving bribes as a favour for the release of a drug case offender. Inspector Suziana Zamli, 33, from the Narcotics Criminal Investigation Division of the South Klang police headquarters, was charged under Section 17 (a) of the Malaysian Anti-Corruption Commission (MACC) Act 2009 for soliciting a total bribe amount of RM18,000 on two occasions. She pleaded not guilty to both charges and claimed trial.

1.7.

Ex-JPJ deputy head fined RM2,000 for driving on emergency lane (17/18) The former Road Transport Department (JPJ) deputy chief who drove on the emergency lane was slapped with a maximum RM2,000 fine for the offence.Yusoff claimed trial to the charge of violating Rule 53(1) of the Road Traffic Rule 1959, under Section 119(1)(c) punishable under Section 119(2) of

Mn Hanis Zulaikha the Road Transport Act 1987, which carries a fine of not more than RM2,000 or imprisonment of not more than six months upon conviction.

1.8.

Anthony Loke: A VIP Committed A Security Breach At KLIA The Transport Minister, Anthony Loke has disclosed that a VIP committed a security breach at the Kuala Lumpur International Airport on 14 November.He explained that the senator has gone through the VIP lane at about 10.20pm without undergoing the compulsory body check. The VIP also allegedly did not comply with the dress code and only wore slippers. He was there to send off his daughter.The incident fell under the Protected Areas and Protected Places Act which states that an individual who does not follow the security requirement will be removed from the area.

1.9.

Minister of Education Malaysia, Dr Maszlee Malik’s a...