Positive and Natural Law Theories

H. L. Hart was an influential British philosopher, who revolutionized the philosophy of law and methodology in jurisprudence. Influenced by Jeremy Bentham (utilitarian approach), another prominent British thinker, and John Austin, he established a new ground for the school of legal positivism, especially the analysis of the legal concepts and the idea of the separation of law and morals. One of the most important works of him is "The Concept of Law", published in 1961, aims to analyze a relationship between law, morality, and coercion. What is important here, that Hart does not claim that there is no intersection of law and morality and laws should be completely devoid of moral aspect or consideration, but underlines the idea that there is no necessary logical connection between them (one is not always a consequence of the other). One cannot coin all the laws either with morality or coercion, as it undermines the relationship between them. It is important first to state the definition of law according to Hart, which is rules (not habits, as some aspects of morality (in daily life) are the matter of habit, constant practice, not some legal concept) that either restrain one from certain actions or impose certain duties/obligations. Laws serve multiple and important purposes, for instance they not always bestow obligations on individuals but may grant them with certain privileges. Hart describes obligation and duties as, what he calls, primary rules of obligation. When there is uncertainty or ambiguity regarding the primary rules is involved among objects, or some aspect are proved to be defective (inefficient), the "secondary rules" are to be introduced (e.g. to correct, to explain), which are: The Rules of Recognition; The Rul...

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...tate of nature, otherwise, no matter how ineffective or unjust the sovereign is, the people don't have the power to overthrow the government. With the social contract now being a legal way to establish connection and cooperation between the ruling body and its subjects (this very relationship is sovereignty by the modern definition (Loughlin, p. 186)), it is very important to point out the 3 aspects that ought to be preserved if to create a legal state: an independent territory, a ruling authority (institutional body, form) and people (the tradition of Staatslehre, German) (Loughlin, p. 192) The state is now defined as "the autonomous organization and activation of social cooperation within a territory" (Loughlin, p. 208), so this social cooperation, legalized by the idea of the social contract was a necessary precondition for the state to emerge and later to exist.