TuTorial - Legal Positivism - HLA HART PDF

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JURISPRUDENCE – TUTORIALHLA HART1. Why is Hart sometime considered as a neo-positivist? In what manners are hisideas different from classical legal positivism?Hart’s analysis, laws are described as rules in order to be distinguished from Austin’s theory of laws as commands. Furthermore, the command ...

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JURISPRUDENCE – TUTORIAL HLA HART 1. Why is Hart sometime considered as a neo-positivist? In what manners are his ideas different from classical legal positivism?

Hart’s analysis, laws are described as rules in order to be distinguished from Austin’s theory of laws as commands. Furthermore, the command theory leaves out an explanation for how, in modern representative systems, the rule-makers who issue the commands find themselves bound by them as well (Hart, 68-69). For these reasons, Hart believes that a more appropriate metaphor for thinking about laws is that of rules in a sporting competition. Rules can not only direct the players to perform or refrain from performing certain actions, but they also give directions to the umpire or score keeper. Furthermore, players feel themselves bound by the rules. The rules themselves provide a reason to act, not just the fear of punishment as in the command theory. Hart calls this point of view, where the existence of the rule provides an obligation for action, the internal perspective to the law. (

The most influential criticisms of Austin’s version of the pedigree thesis, however, owe to H. L. A. Hart’s seminal work, The Concept of Law. Hart points out that Austin’s theory provides, at best, a partial account of legal validity because it focuses on one kind of rule, namely that which requires citizens “to do or abstain from certain actions, whether they wish to or not” (Hart 1994, p. 81). While every legal system must contain so-called primary rules that regulate citizen behavior, Hart believes a system consisting entirely of the kind of liberty restrictions found in the criminal law is, at best, a rudimentary or primitive legal system. On Hart’s view, Austin’s emphasis on coercive force leads him to overlook the presence of a second kind of primary rule that confers upon citizens the power to create, modify, and extinguish rights and obligations in other persons. As Hart points out, the rules governing the creation of contracts and wills cannot plausibly be characterized as restrictions on freedom that are backed by the threat of a sanction. These rules empower persons to structure their legal relations within the coercive framework of the law-a feature that Hart correctly regards as one of “law’s greatest contributions to social life.” The operation of power-conferring primary rules, according to Hart, indicates the presence of a more sophisticated system for regulating behavior.

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Austin theory requires a sovereign with unlimited powers. But this view is not acceptable to Hart. According to him the sovereign has to rule according to a constitution – which also govern the extent and limit of the powers of law-making/legislature. People obey the laws imposed by the sovereign because of the fear of sanction in command theory. However, Hart had said law must be viewed

from social perspective. He looked at the society and why people obeys the law. They obey because the law is part of social obligations which come from various forms such as norms, customs, traditions, moral codes and social practices. •

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Minimum need of natural law in positive law

2. Explain the followings based on Hart’s view of law: a. social habits and social rules social habit (which people follow habitually but the act of breaking the habit does not bring criticism. It does not make someone feels pressure to conform because there is no social consequences. Social habits can be observed externally where member of a society has the tendency to act in a certain behaviour that other member would act. This is to create a consistent manner even though non-performing would not lead to any consequences. social rule - where breaking the rule is seen as wrong. It constitutes obligations. Apparent social pressure to conform. - 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 whole as a group. - Failure to conform would result to criticism from the other member in -

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the group. Then, social exclusion such as retaliation 2 types of social rules which are social conventions and rules which constitutes obligation. For social convention, everyone is expected to follow some point of etiquette like the way he or she needs to dress, manners and many more. If someone does not do like others, they would face criticism. Rules which constitutes obligation needs to be followed and conform. It leads to higher demand for the other member of the society to observe whether the rule is follow or not and stronger pressure to coerce members to obey.

b. external and internal aspects of law

Hart distinguishes between the "external" and "internal" points of view with respect to how the rules of a legal system may be described or evaluated. The external point of view is that of an observer who does not necessarily have to accept the rules of the legal system. The external observer may be able to evaluate the extent to which the rules of the legal system produce a regular pattern of conduct on the part of individuals to whom the rules apply. The "external" aspect of rules may be evident in the regular pattern of conduct which may occur among a group of individuals. The external aspect of rules may in some cases enable us to predict the conduct of individuals. To be obliged and to be forced to act in a certain way because of some threat. Fear of sanctions lead to obedience by the members. The internal point of view, on the other hand, is that of individuals who are governed by the rules of the legal system and who accept these rules as standards of conduct. The "internal" aspect of rules distinguishes rules from habits, in that habits may be viewed as regular patterns of conduct but are not usually viewed as standards of conduct. but we may have to consider the 'internal' aspect of rules in order to interpret or explain the conduct of individuals. Internal is when there is sense of duty within oneself to act in a certain way that would let to compliance of law without in need of external factor to obey the law.

3. Critically evaluate Hart’s view that ‘law is the union of primary and secondary rules’. In Hart's view, a society might live only by primary rules of obligation, but will suffer from three defects: there will be uncertainty as to what the rules are and their scope; the rules will be static insofar as there is no means of deliberately eliminating or introducing rules; and, the social pressure by which rules are maintained will be inefficient because there is no agency for finally settling disputes over violations of the primary rules." These defects may be remedied by secondary rules that "specify the ways in which the primary rules may be conclusively ascertained, introduced, eliminated, varied, and the fact of their violation conclusively determined." 15 Thus, a secondary rule of recognition will remove the uncertainty of the regime of primary rules by providing a rule for conclusive identification of the primary rules of obligation."6 Secondary rules of change will remedy the static character of primary rules by empowering an individual or body to introduce new primary rules of conduct for the group, or for some class within it, and to eliminate old rules." The remedy for the inefficiency of the social pressure is secondary rules of adjudication empowering

individuals to determine authoritatively whether, on a particular occasion, a primary rule has been broken. '8 Hart concludes that "[t]he introduction of the remedy for each defect might, in itself, be considered a step from the pre-legal into the legal world," and that "certainly all three remedies together are enough to convert the r6gime of primary rules into what is indisputably a legal system."' 9 The "union" of primary and secondary rules may be regarded as the "essence" of law," 0 for a modern municipal legal system will combine both kinds of rules, and the secondary rule of recognition will unite all the rules of the system in that all genuine laws will satisfy the criteria of validity specified by the rule of recognition.

According to Hart’s definitions, primary rules either forbid or require certain actions and can generate duties or obligations. For a citizen with an internal perspective to the law, the existence of a primary rule will create an obligation for him or her to behave a certain way (Hart, 74). When we think of something being against the law, or required by the law, we are generally in the realm of primary rules. A primary rule can be the law against walking out of the Apple Store with an IPod without paying or the law requiring you to stop at a red light. In the “rules of the game” metaphor, an example of a primary rule would be that in football, it is illegal to restrain a player who is not in possession of the ball.

Secondary rules on the other hand, set up the procedures through which primary rules can be introduced, modified, or enforced. Secondary rules can be thought of as rules about the rules (Hart, 76). Continuing with our football metaphor, an example of a secondary rule would be that a coach is permitted to challenge a call by the referee, but must accept the final decision of the ref following the viewing of the instant replay. When analyzing the necessity for secondary rules, Hart imagines a simple society, with only primary rules, but concludes that such a society would face a number of challenges: because there would be no systematic method of rule creation, there would be uncertainty about what the rules actually are; the system would be very static, since any changes in the rules would have to occur organically; finally, without a defined adjudication method, inefficiencies would arise from disputes over whether a rule was actually broken (Hart, 75). These three problems can be remedied with the introduction of three types of secondary rules, in order: rules of recognition, rules of change, and rules of adjudication (Hart, 76-77).

According to Hart, once a rule is established according to the rule of recognition, whether by the legislature or by judicial precedent, it becomes part of the legal pedigree (descent) and there is little further uncertainty about its meaning or validity. This analysis, and even the choice of the word “rules” implies that the laws are very explicit and do not contain much room for interpretation. However, in many real life examples we find that the laws are rather vague or flexible, or that they turn on abstract concepts, like in contract law, where judges often make decisions based on whether the parties acted in good faith. If Hart would believe that any judicial decision in which there is uncertainty or a lack of specificity within the law in question constitutes the creation of new laws by a judge, then that amounts to an incredibly large quantity of retroactive laws, which is problematic to the consistency Hart wishes to maintain in his theory of rules. The reason that Hart gave for the necessity of a rule of recognition was to solve the problem of uncertainty about the rules by

making it easy for people to clearly identify what the laws are. But if new laws can be created every time a judge makes a difficult decision, it makes identifying the rules just as difficult as if there were no rule of recognition at all. I do feel, however, that Hart’s theory on judicial decisions fails to address the reality of how judges see their role in the legal system, as interpreters or arbitrators of the law rather than creators of new laws.

General Reference  Badariah Sahamid, Jurisprudens dan Teori Undang-Undang Dalam Konteks Malaysia, (Sweet & Maxwell 2005) Chapter 5  M.D.A. Freeman, Lloyd’s Introduction to Jurisprudence, 8th Ed. (London: Sweet & Maxwell, 2008) Chapter 6  Chand, H., Modern Jurisprudence, (Kuala Lumpur: ILBS 2008) Chapter 4 & 8  McCoubrey, H., and White,N., Textbook on Jurisprudence 3rd ed. (London : Blackstone Press, 1999) Chapter 3  Davies and Holdcroft, Jurisprudence: Texts and Commentary, (London: Butterworths, 1991) Chapter 4, 10, 12...