Hart 's Concept Of The Existence Of A Legal System

Sanctions are only appealed to in the event that there is a breach. It therefore follows that the opinion of Hart is that various form of law cannot be explained in a single expression as orders backed with threats of sanction. Thus, in contradiction with Austin’s viewpoint, Hart formulated a dual system which contains two types of rules, primary rules (duty-imposing) and secondary rules (power-conferring). Primary rules are generally duty-imposing, which embodies non-optional rules of obligation. It often concerned with standard of behavior as requirement to do or to abstain from performing an act. On the other hand, secondary rules are ancillary to primary rules the former conferring right to introduce, to vary the primary rules and to determine the mode in which their violation could be determined (judicial process). Such secondary rules are rather regulatory or facilitative than coercive in nature. In short, Austin’s catch all theory of seeing law as command back with sanction leave no room for right, privileges given to subject of Sovereignty which does not constitute non optional

In August 2015, the case Miller V Davis brought to light the complicated relationship between law and morality. Indeed, Mrs Davis a county clerk in Rowan county (Kentucky), is being sued for not delivering marriage licences to same sex couples as she believes that homosexuality is morally wrong. Thus, despite the fact that same-sex marriage has been made legal by the U.S Supreme Court since June 2015. Ought individuals to apply the law though it is in inadequacy with their moral beliefs? Do the law should be totally free from any moral influence? Many legal scholars have argued on these questions, as well as trying to define the terms “law” and “morality”. While no one has agreed to a universal definition, law can be defined as a “body of rules, whether proceeding from formal enactment or from custom, which a particular state or community recognizes as binding on its members or subjects”. On the other hand, morality is referred to as an “ethical wisdom” , the set of common values unifying a society. This essay will discuss the role of morality in the law, while analysing different legal school of thoughts arguing on the topic. First of all, positivists such as Bentham, Austin and Hart, argued that morality should not interfere with the law as it is created by a legitimate authority. On the other hand, naturalist theorists, such as Aristotle, Fuller and Dworkin, believed in the existence of a “higher law”, highly influenced by morals, has to be integrated in a legal system

PHL 612 Philosophy of Law [Calendar Description]: What is law? What makes something a legal norm? Should

2. Why does he say that many forms of “lawlessness” have a collective aspect; and are often hard to differentiate from “the law?” Why did extra-legal “justice” become less acceptable over time?.

The proper overall function of the system of criminal law in Hart’s view should be the function that follows the ideas of The Mercantile Theory. The Mercantile Theory is a system in which the freedom of choice and liberties of the individual, and the corporation in certain cases when it is acting as an individual, are maximized. Hart believes that the pursuit of happiness, along with freedom of choice and liberties of the individual, should be maximized by criminal law and always be taken into consideration when deliberating upon sentencing and judgements in cases.

St. Thomas Aquinas argues that an “an unjust law is no law at all.” (Aquinas in Dimock, ed., 2002, p.19) However, Aquinas also acknowledges that a human lawgiver may promulgate a command that has the form of law, and is enforced like a law, yet is unjust. This observation leads to the realization that these are two inconsistent claims. Yet Aquinas believes that these inconstancies can be reconciled. In Aquinas’ view an unjust law is not a law but yet is also able to be issued as law and imposed as law.

In his book, Neil Boyd says that “Law is a vitally important force. It is the skeleton that structures our economic, social, and political lives” (Boyd 5). One can answer questions only after understanding different perspectives of legal philosophy, such as natural law, positivism, legal pragmatism, and feminism. Questions such as: Are the natural law dead as argued by Roger Cotterrell? Does Hatfield provide compelling reasons, if he rejects Cottrell’s argument on the natural law? Equally good, Will it aid our understanding of the different position of legal philosophy by contrasting values of natural laws with other three perspectives of law? Let us discuss it below.

Holmes starts The Path of the Law with the Prediction Theory. He states that law is

The biggest difference between the writings of Austin and Hart might be that the former while setting the framework for a plausible theory, fails to elaborate on its most basic premises. Hart expanded on legal positivism by enhancing the theory suggested by Austin and making it more credible, all while debunking natural law theory. One example is the manner in which Austin argues that the concept of law is subject to the command of a higher authority backed by threats. Although this is a way in which law can be presented, it is also a simplistic definition. Hart argues that although Austin’s definition of the law might be applicable to criminal law, it fails to justify other variants of legal process such as contracts or marriage licenses. He argues that “Such laws do not impose duties or obli­gations. Instead, they provide individuals with facilities for realizing their wishes, by conferring legal powers upon them to create, by certain specified procedures and subject to certain (p. 27)” It is difficult to associate laws such as the ones concerning marriage to the idea of a command backed by threat. The differentiation between laws that grant liberties when compared to those that might take them away is something that is not taken into account by Austin or explored in depth by natural law theorists such as Aquinas.

Hart goes on to write of the importance of being able to settle cases in the courts rather than legislating in advance. He refers to Von JHerring’s ‘heaven of legal concepts’, Hart explains this concept “this is reached when a general term is given the same meaning not only in every application of a single rule, but whenever it appears in the legal system.” This would appear to be the polar opposite of ‘open texture’ and would be prevalent in a legal system of mechanical jurisprudence. He explains that this would allow for a greater measure of certainty and predictability but at the expense of being unable to exclude cases which we may wish to exclude. “The rigidity of our classifications will thus war with our aims in having or maintaining the rule.” Thus the concept of mechanical jurisprudence would hinder the courts ability to take into account things such as equity and the pursuit of social aims, in the pursuit of a clear and rigid

This paper will demonstrate how Hart’s account of the relationship between law and morality shows an understanding of how they both work together yet can also work as separate entities. It will take a specific look into the internal point of view to aid the understanding of why

The legal-formalist belief in the capacity of legal rules to determine the outcomes to legal disputes without having recourse to the judge’s political beliefs or sense of fairness has been severely criticised by, amongst others, legal realists and critical legal studies scholars. This assignment will firstly address what legal formalism entails, following which the criticisms of legal formalism will be discussed and lastly whether legal formalism can impede the transformative ideas of the Constitution. All of the above will be analysed to determine the role of legal formalism today.

Arguably one of the most influential legal theorists of the 20th century, Ronald Dworkin’s dealings with law’s interpretation and integrity has lead to inevitable contradictions with that of positivist ideology, with his work essentially revitalising a method of thinking that had long been considered dead and buried. Perhaps most notoriously, Dworkin combated the positivist theory of his former teacher and predecessor as Professor of Jurisprudence at Oxford University, H.L.A. Hart. When comparing the two, it is apparent that Dworkin and Hart disagree on a plethora of issues, however there exist several

This article discusses the conceptions of legal normativity, both moral and “strictly legal” conceptions. According to Spaak, regarding the normative force of legal justification, legal positivists can still embrace the moral idea and not be in conflict with their generally held belief in the “strictly legal” concept of law. In Torben Spaak’s opinion, there is a reason to desire legal positivism; he explains this through introducing the concept of jurisprudence. When discussing the nature of law, Spaak states, “that while the moral conception is what is likely favored on a smaller scale, the strictly legal conception is more appealing because it is broader,” (478). Spaak is arguing, his belief that “validity-based explanations come nearer to the truth,”(483) rather than belief-based explanations. He concludes that we are to prefer legal positivism over natural law theory. “That is why in this article I have been concerned with the law itself rather than our views about it.”(483)

Hart’s critique of Austin boils down to determining the normativity of law (the reason why we should