Theory of Law
Present and evaluate some important elements of HLA Hart’s theory of law. How does it represent an advance over Austin’s theory? What are some problems with Hart’s account?
H.L.A. Hart presents a theory of law based on the assertion that, the most important characteristic of law is the element of rules that enforce obligation or duties rather than rules that confer authority or sovereignty. Hart intends to offer a superior analysis of the unique formation of a public legal system as well as an improved understanding of the similarities and dissimilarities between law, morality and coercion as part of a social realm.
Thus, Hart begins his theory with the idea that the presence of law means that particular types of human behaviour are no longer optional; rather, they have a sense of obligation. Secondly Hart continued to build on earlier theories of legal positivism and refuses to declare that there is any necessary connection between law and morality. From this, Hart proposes the ‘Separability Thesis’ which stands as one of the most important elements of his theory of law. In his own examination, Hart states that at times, necessary connections between law and morality merely provide the affirmation that a successful legal structure must comply, at a particular point, with the requisites of justice and morality. However, Hart believed that although, there is an existence of moral obligation and that a functioning legal system must display a certain compliance with justice and morality, a specific reference to morality or justice is not necessary for the validity of certain laws within the legal system.
Hart’s legal theory also places a particular emphasis on social construction. He states that for any social organization to be practical, it requires certain principles of behaviour. Hart also proposes that law is defined by a system of rules which impose obligations.
Central to Hart’s theory of law is his effort to distinguish primary and secondary rules.
H.L.A. Hart presents a theory of law based on the assertion that, the most important characteristic of law is the element of rules that enforce obligation or duties rather than rules that confer authority or sovereignty. Hart intends to offer a superior analysis of the unique formation of a public legal system as well as an improved understanding of the similarities and dissimilarities between law, morality and coercion as part of a social realm.
Thus, Hart begins his theory with the idea that the presence of law means that particular types of human behaviour are no longer optional; rather, they have a sense of obligation. Secondly Hart continued to build on earlier theories of legal positivism and refuses to declare that there is any necessary connection between law and morality. From this, Hart proposes the ‘Separability Thesis’ which stands as one of the most important elements of his theory of law. In his own examination, Hart states that at times, necessary connections between law and morality merely provide the affirmation that a successful legal structure must comply, at a particular point, with the requisites of justice and morality. However, Hart believed that although, there is an existence of moral obligation and that a functioning legal system must display a certain compliance with justice and morality, a specific reference to morality or justice is not necessary for the validity of certain laws within the legal system.
Hart’s legal theory also places a particular emphasis on social construction. He states that for any social organization to be practical, it requires certain principles of behaviour. Hart also proposes that law is defined by a system of rules which impose obligations.
Central to Hart’s theory of law is his effort to distinguish primary and secondary rules.
References: Scott, Alex. 2004. H.L.A. Hart’s The Concept of Law. Retrieved from: http://www.angelfire.com/md2/timewarp/hart.html Donohue, Christopher. 2013. John Austin, Legal Positivism, and the Debate over the Sources of Law. Retrieved from: http://etherwave.wordpress.com/2013/01/14/john-austinlegal-positivism-and-the-debate-over-the-sources-of-law/ Summers, Robert S. Professor H.L.A. Hart’s Concept of Law. Retrieved from: http://scholarship.law.duke.edu/cgi/viewcontent.cgi?article=1879&context=dlj Bogdanov, Ekaterina. 2012. John Austin’s and H.L.A. Hart’s Legal Positivist Theories of Law: An Assessment of Empirical Consistency. Retrieved from: http://katyabogdanov.files.wordpress.com/2013/05/john-austin_s-and-h-l-a-hart_s-legal-positivist-theories-of-law-an-assessment-of-empirical-consistency.pdf Moles, Robert N. Definition and Rule in Legal Theory – A Critique of HLA Hart and the Positivist Tradition. Retrieved from: http://netk.net.au/LegalTheory/06Chapter3a.asp Shapiro, Scott J. 2007. The Hart-Dworkin. Retrieved from: http://www.law.yale.edu/documents/pdf/Faculty/Shapiro_Hart_Dworkin_Debate.pdf