The Argument Put Forth By Hart And Lon L. Fuller

The notion of obedience is imperative to the notion of law, and the subject of legal obedience is accepted by virtue of its necessity in the definition of law. The discussion of moral obligation to obey the law, however, raises difficult questions met by various arguments. As a leader of this discussion, Rawls proposes that moral obligation to obey the law is upheld if the system of law is grounded in the principle of fair play.

As a citizen, one often faces the moral dilemma of whether to abide by the laws they disagree or whether not to. The Crito, written by Plato, and Civil Disobedience, written by Henry David Thoreau, explain and defend their claims on what to do when one encounters this moral dilemma. The Crito argues that one should not break the laws because to break one law is to break all of the laws. Civil Disobedience argues that majorities should not determine whether to make the people of a society follow a law, but ones conscience should determine whether they should follow the laws. The Crito is correct in the fact that one should follow the laws because they are laws, and if broken, essentially all of them are broken; the laws are put in place to conduct society and one does not get to pick and choose which ones to follow and which ones not to.

Sartorius contends that Hart surely is aware of the inadequacy of defining law and morals in formal terms. The two minimum conditions for the existence of a legal system, Sartorius struggles, are relevant neither to Hart’s concept of a legal system nor to his concept of law:

Brien’s (1999) statement associates the concept of the Rule of Law with democracy and liberty, thus evoking its egalitarian and anti-authoritarian properties. The Rule of Law is widely considered a key element to democracy, and has also been touted as a critical element in promoting human rights and “good law” in society (Licht, Goldschmidt & Schwartz, 2007). Brien (1999) refers to the Rule of Law as “ideal”, suggesting that the need for

Fuller outlines potential failures made within a legal system ruled by a ruler. These failures suggest emphasis on the importance in the value of law and how it should be designed in a legal system. He uses an imperceptive King (Rex) and demonstrates how discretionary power can lead to unjust rules.

In the past an imminent threat, such as nuclear war or terrorism, made the exception crucial, but in modern society there are attempts to include the exception within the law itself. Agamben understands that there is a “space without law” (SoE 50) and thus the state of exception lacks the law. He thinks about the law in a way that separates it from what is held by authority normally and stations it in a new place, a new stage where it becomes the law while remaining a distinctive. The state of exception needs to reach a point where it can hold together the two aspects, law and life, and create a limit between them. Agamben suggests that an alternative is to show the artificiality and violence within the current system where law and life are bound ambiguously, and to a point where the exception extends and overarching negative influence. Agamben argues that this development would lead toward political action towards distinct means.

Timasheff noted that modern jurists often deny the proposition that legal rules are obeyed. They assert that legal rules are not commands, but directions for proper conduct. Timasheff rejected this assertion on the ground that if legal rules are merely "directions," they are indistinguishable from friendly advice. The only way to make this important distinction, Timasheff argued, is by reference to power structures: "legal rules always express dominance and therefore, they are commands"[ Timasheff 253]. Timasheff identified three specific motivations for obeying legal rules: the direct imperative motivation, the direct attributive motivation, and the indirect motivation[ Timasheff 253]. For our purposes here, the first is the most pertinent. Timasheff contended that the roots, instruments and forms of the direct imperative motivation to obey the law are exactly the same as the roots, instruments and forms of obedience within power structures, i.e., dominance, submission, unequal social interaction and power relationships[Timasheff,

Hart does not deny that the concept of a command backed by coercion is essential to the understanding of Law. However, he argues that restricting law to this definition restricts our understanding of the concept of law to Law as it is applied to society, rather than Law as it operates within society. Hart argues that while Law “may appear to be the gunman situation writ large…this reduction of the complex phenomena of law to this simple element may seem…to be a distortion and a source of confusion even in the case of a penal statute

HLA Hart (hereafter Hart) in his preface, modestly describes the aim of his book is too elegantly, and clearly explained further the understanding of law, coercion and morality as different but related social phenomena. The main strand of The Concept of Law downplayed the elements of coercion, command and habitual obedience in law, replacing the images of power and violence in the jurisprudential imagination by conceiving of law as a system of rules upon rules, of social practices informed by their own criteria of validity and normative obligation. In critically analyzing to what extent Hart realized his goal will, I will first discuss his theory which he submitted through his principle book “The Concept of Law “subject to critiques from different academics. My essay will try to portray short brief of Hart’s theory based on “The Concept of Law”.

Positivist theories of law can be described as “those who understand the law to be a particular sort of social ordering, a certain kind of social technology by which individuals who live together can coordinate their behaviour and resolve disputes.” Positivist theories also state that there is no necessary connection between law and morality and rejects the idea of a higher law. Classical legal positivism was first founded by Jeremy Bentham (1748-1832). Bentham’s aim was to provide an alternative to what he saw as ‘errors of the conventional jurisprudence’ of his time. His ideas were later developed by John Austin, who promoted the ‘Command Theory’ of law. HLA Hart was very much in favour of legal positivism; however, he didn’t agree with some of the concepts outlined by Austin. He analysed the classical theories of positivism, particularly those of Austin and Bentham and attempted to update this view of law. His argument for legal positivism challenged many of the concepts laid out by the classical theorists. This essay will, therefore, examine Hart’s argument, in favour of legal positivism, look at his analysis of other positivists theories as well as criticisms of his own theory, notably that of Dworkin, and come to a conclusion on whether he provides a persuasive argument in favour of positivism.

The realist theorist Henkin (1993, p.214) convinced that “law is a major force in the world”. Legal systems possess different characteristics superior to those of others. For instance, international law is concerned with the rights and the duties of States of their relationship with each other and with international organizations. In addition, domestic (national) law, the law within a State, is concerned with the rights and duties of legal persons within the State.

This point picks up a recurrent theme of this paper, that a legalist perspective on human rights has a reactionary approach with a focus on identifying the wrongdoer of a human rights violation , rather than to set peremptory guidelines that outline how to live and act in harmony with human rights or seeking to bring about any overarching change in behaviour , or indeed, systematic institutional change. This method of focusing only on the wrongdoer foreshadows the danger Arndt waned of in that a society can convince itself that by identifying and removing all the ‘bad men’ it has sufficiently and absolutely dealt with the evil.

This essay aims at briefly explaining the key components of Hart’s theory while constantly comparing and contrasting his propositions with those of his predecessors, Bentham and Austin as the former quintessentially flows from Hart’s aim, the one of providing the world of Jurisprudence with an improved analysis of some of the earlier proposed correlation between law, morality and coercion. This will be later followed by a detailed analysis and subtle criticism, where necessary, of Hart’s theory because the important question pertinent to the validity of his philosophy will be left unanswered if his departure from classical positivism isn’t examined.

Justice has been used in our daily life in free flow but the functioning of judicial system in any place where law is supreme; the justice has been construed as what the courts do. Except this, justice can’t be traced in any other form. People who get the decision in his favour finds the court as the source of justice seconded by his happiness while on the other hand the other party would always consider the court as legitimising nothing but his sorrows. So in this way the main question arises that whether the notion of justice connotes such happiness and sorrow only. If not then what are the other ways to construe it? Apart from this, whether law used in the court to get such justice has any direct relation with that? In order to understand the real meaning of justice first we are required to understand the real aspects of such law. In this way Hans Kelsen has contributed unprecedented views to understand the real aspect of law in his “Pure Theory of Law”. Here he distinguishes the domain of law from what earlier philosophers have construed in the form of natural and ideal one. In marking off the law from nature, the Pure Theory of Law seeks the boundary between the natural and the idea1.12

JohnFinnis commences his analysis with a defence of naturalist jurisprudence and then offers new insights into what positivism is and what is its relationship with natural law theories. He convincingly and forcefully shows that positivists opposition to natural law is redundant because what positivsts see as realities to be affirmed are already affirmed by natural law theory, and what they describe as illusions to be affirmed are not part of natural law.