Consider H.L.a Hart’s Critique of Austin’s Positivist Theory of Law. Do You Think H.L.a Hart Succeeds in Developing an Alternative Account of Law Which Is Persuasive?
1587 Words7 Pages
The question of what the law is a philosophical one, which probably has no definite answer to it. This is evident as we have seen a lot of legal theorists trying to come with answers to the question. Ronald Dworkin says it is “a set of explicitly adapted rules and ought to maximise the general welfare” , Fuller on the other believed “law should withstand the scrutiny of reason and opposed the idea of legal positivism that law is no higher than a particular authority” , John Austin defined it to be “the command of the sovereign, backed up by sanctions” , Herbert Lionel Adolphus Hart said that law was “the rules that may forbid individuals to perform various kinds of actions or that may impose various obligations on individuals.” These…show more content… Hart says that all laws differ from the commands of a sovereign because they may apply to those individuals who enact them (i.e. the president and the legislature) and not just to other individuals (South African citizens). Laws may also differ from coercive orders in that they don’t only have to impose duties and obligations (primary rules of obligations) but can also confer powers and privileges.
According to hart in order for primary rules to work properly they need secondary rules in order to effective. The function of secondary rules is to enable legislators to make changes in the primary rules (legislation) should the primary rules be found to be defective in any way. Secondly they may be necessary in order to enable courts to resolve disputes over the interpretation and application of primary rules. Therefore the secondary rules of a legal system may include rules of recognition, change and adjudication. For these primary rules to be followed they must be clear and understandable to the individuals to whom they apply. Therefore a legal system is established by a union of primary and secondary rules.
Hart disagrees with Austin that the foundations of a legal system consist of habits of obedience to a legally unlimited authority, but consist of adherence to and acceptance of an ultimate rule of recognition, by which the validity of a primary and secondary rule may be evaluated and should it meet the criteria for the rule of recognition