In The Concept of Law, H. L. A Hart criticizes John Austin’s command theory of law and argues for a new framework that interprets laws as rules. As a legal positivist, Hart is motivated to separate the descriptive question of what is from the prescriptive question of what law should be. Despite this, he believes we must also consider the normative aspect to law, which is reflected in the obligation we feel to follow it. With the notion of obligation in consideration, Hart proposes a framework that is a more sophisticated and consistent view of how legal systems work. In this paper, I will argue that - despite the overall usefulness of his framework – he fails to properly address how judicial decisions play a role in the changing and challenging …show more content…
The laws are described as rules, rather than commands of the sovereign, because Hart believes a system of rules gives a more realistic and complete picture of how laws work. A quick observation of existing laws will present us with a wide range of laws that do not neatly present themselves in command form. For instance, power conferring laws, which describe agreements between people such as contracts or marriages, appear to be granting people rights or describing the way people should react to certain circumstances rather than commanding them to behave in a certain way. Furthermore, the command theory does not explain how, in modern representative systems, the rule-makers who issue the commands find themselves bound by them as well. For these reasons, Hart believes that a more appropriate metaphor for thinking about laws is that of rules in a sporting competition. Rules 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 …show more content…
They set up the procedures through which primary rules can be introduced, modified, or enforced. Continuing with our soccer metaphor, an example of a secondary rule would be that a red card can be rescinded after an appeal for retrospective review. Hart say that only the most trustworthy and good-willed societies can survive with just primary rules. In reality, our societies are not so idyllic and many problems will arise. 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. 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
Nedelsky, J. Law’s relations – a relational theory of self, autonomy, and law. Oxford University Press. 2011. Print.
Carl et al. (2011, p. 119) suggests that there are two primary models as to how laws were created (i) the consensus (ii) conflict models. While the consensus model of law suggests that laws arise when people witness behaviours that they do not approve of, therefore agreeing to make that behaviour illegal (Carl et al., 2011, p. 119). The conflict model
Law has no existence for itself; rather its essence lies, from a certain perspective, in the very life of men.
Culver, Keith Charles. Readings in the philosophy of law. 1999. Reprint. Peterborough, Ont.: Broadview Press, 2008. Print.
(7) H. L., Hart, The Concept of Law, ch. VIII, and D., Lyons, Ethics and the rule of law, Cambridge University Press, 1989, p. 78 ff,
The relationship between morality and law has always been a subject of contention in jurisprudence. Consequently, many legal theories have attempted to define the appropriate limit and scope of morality’s influence on the law. Legal moralism, as proposed by Patrick Devlin, is the belief that society has “the right to pass judgement at all on matters of morals” (375), as well as “the right to use the weapon of the law to enforce it” (376). In this essay, I argue that Devlin’s legal moralism is unacceptable on the basis of committing cultural relativism, and that its application is problematic due to its inconsistent, arbitrary and biased nature. This essay will: 1) explain Devlin’s reasoning for legal moralism; 2) object to Devlin’s legal moralism with consideration to Devlin’s possible response.
This theory looks at how the sovereign and its officials created the law based on social norms and the institutions (Hart, 1958). However, hard cases such as this makes for bad law, which test the validity of the law at hand based on what the objective of the law was in the first place. The law should not be so easily dismissed just because it does not achieve justice in the most morally sound manner (Hart, 1958). Bentham and Austin understood that there are two errors in the way law is understood, what the law is and what the law should be (Hart, 1958). He knew that if law was to become what humans perceived the law ought to be, the law itself would be lost, but he also recognized that if the opposite was to occur where the law replaced morality, than any man would escape liability and there would be no retribution (Hart, 1958). This theory looks at the point of view of the dissenting judge, Justice Gray, which is that the law is what it is, even if it may conflict with morals. Austin stated that “The existence of law is one thing; its merit and demerit another. Whether it be or be not is one enquiry; whether it be or be not conformable to an assumed standard, is a different enquiry (Hart, 1958).” This case presents the same conflict that Bentham and Austin addressed, that the law based on the statute of the
Dworkin conflates the question of adjudication with the question of legal validity, equating ‘law’ with ‘what judges are obligated to apply’. This is contrary to legal positivism, which holds that in ‘hard cases’ when the law runs out, judges must exercise their discretion by reasoning morally in order to make new laws. According to Dworkin, the law never runs out. Therefore, judges do not have open-ended discretion to make new law. He asserts that all cases, including ‘hard cases’, have one right answer. He asserts that not all laws derive their validity from factual tests of pedigree provided by a rule of recognition. Instead, some laws (i.e. legal principles) necessarily depend on moral reasoning by judges for their legal validity. Dworkin asserts that laws cannot simply be understood as authoritative directives issued by
He claims that the authority has a right to rule and it means that people need to obey the laws. He links the “right to rule” and “obey the law”. It is not necessarily true that the“right to rule” and “obey the law” is linked. If we look at the relationship between parents and children, parents have natural authority over their children. The parents may command children to go to school. Although the children were told to go to school, they may not obey the parents’ command to go to school. Just because the parents have a right to rule over their children, it does not mean that they are taking away children’s autonomy. While Wolff suggests that the authority’s “right to rule” is followed by individual’s “obey the law”, he does not clarify the case when some people have natural or professional
Ronald Dworkin has become one of the most influential legal philosophers over the last century providing a ‘sophisticated alternative to legal positivism’. Dworkin is a non-orthodox natural law theorist, his account of law centres on his theory of adjudication. A key aspect of adjudication is the concept of Law as Integrity. However, some commentators suggest that Dworkin’s ideal does not reflect the reality of judicial interpretation. In this paper I will outline Dworkin’s ‘law as integrity’ and then highlight some of the criticisms that appear to generate doubt over his writings as a convincing model. I will conclude that whilst his main opponents offer some substantial critiques of Dworkin’s theory of ‘law as integrity’, Dworkin does establish a convincing theory that tries to bridge the gap on judicial discretion that other notable theorists, including H.L.A. Hart, fail to achieve.
We must consider whether they are “authoritarian law-makers, or if their profession makes them mere declarers of the law”. In this essay, I will argue the ways that judges do make law, as well as discussing the contrary. The English legal system is ostensibly embedded on the foundation of a ‘high degree of certainty with adaptability’ based on a steady ‘mode’ of legal reasoning. This rests on four propositions. 1.
The central aim of this essay will be to support the legal-positivist that law and morality are strictly separable. In its simplest form many understand legal positivism to be the existence and content of law, which depends on social facts, and not on its merits. I will engage closely with the work of John Austin and his concept of law, which offered a developed and progressive piece of work from Bentham, focusing on Austin’s The Province of Jurisprudence Determined (1832) in order to demonstrate one of the earlier accounts of legal positivism. By exploring Austin’s theory of sovereignty, in which he outlines that in every state there exists an authority to which a large mass of citizens show compliance, I will address the consideration that
Firstly in this report, I will be giving the different definitions of rule of law by different philosophers; secondly, I will be applying the rule of law to the English Legal system and thirdly I will be explaining separation of powers with a focus on the impartial judiciary. Finally, I will be using cases to support every detailed point given.
The relationship between law and morality has been argued over by legal theorists for centuries. The debate is constantly be readdressed with new cases raising important moral and legal questions. This essay will explain the nature of law and morality and how they are linked.
Rawl’s principles were found justified by visualizing real people forming a system of laws including the ramifications of a “justified complaint”. A justified complaint is an accusation by a member of society against another member of society. To have a system of justice the society must have means of answering the beckoning of the populace. If a society does not attend to the offense of its own people then it is not a true society. Society is based on the principle of a consensus unanimously choosing their governing rules and laws. However the limitations of a “justified complaint” are unclear depending on what the consensus agrees to. Though the one rule that must apply is the fact that a complaint must be made by a law abider to be a “justified complaint”.