Hart Concept Of Law Notes

"The Concept of Law", H.L.A Hart I: PERSISTENT QUESTIONS I. Perplexities of Legal Theory: * * * Short way of saying, there is standard case and then some that deviate, of no use because legislature and courts itself is creature of law. Must not ask "What is law" but rather fnd out what has puzzled those who have for so long tried to answer it and why! Three main themes part of question what is law, arising naturally, but often misunderstood. 2. Three Recurrent issues * * * * * * * 1. How does law differ from and related to orders backed by threats? 2. How does legal obligation differ from moral obligation? 3. What are rules and to what extent is law an affair of rules? Will show why they come together in form of request for defnition of law to "What is law". 1. Idea of non-optional conduct. * One man forced to do what another tells him with unpleasant threats (e.g gunman threatening woman to give purse or shoot her). This is starting point for Austin. * Too reductionist - so q - how does law differ from order backed by threats? 2. Second way conduct may be obligatory - morality. * But: there can be unjust laws. 3. More general: Law as consisting largely of rules. But: what are rules? * That people 'generally' do these things? Not enough. Can have convergence without requiring people to do so (e.g have breakfast). What is difference? Deviation is not met with reproof. But not exhaustive to say predictability of punishment because we say we punish/reprove a man not because he has broken the rule, and not because it was probable that that we would reprove or punish him. * So what is beyond this predictable punishment - its this invisible force that we 'ought' to do it. * Also, note that much criticism is that legal system doesn't consist even primarily of rules because of the penumbra (the thing around a fashlight on wall) because most cases in courts are not simple and straightforward - there is always a choice. * Consider the uncertainty around phrase like "no personal shall be deprived of life liberty or property without due process of law" March notes this is like saying ' no, w, y, z, x.' 3. Defnition * * * * * * * Defnition is what language uses to divide one thing off from the next. "What is time? I know if no one asks me" In searching for defnition we are looking not merely at works, but also we are using a sharpened awareness of words to sharpen our perception of the phenomena.' - Austin. But, defnitions need genus, or family to locate it within. This requirement makes defnition of law useless as there is no general category to ft it within. Another shortcoming: defnitions rest on assumption that all instances of what is defned have common characteristics which are signifed by expression defned. BUT: instinct to bring all three questions together has not been misguided because possible to isolate and characterize a central set of elements which form a common part of ansewr to all three. First, must consider defciencies in claim that 'key to understanding law is found in simple notion of order backed by threats.' Next three chapters deal with this. Nabil: Why is Hart assuming that there are only these three questions? Are there not many others to be considered? Such as.. II: LAWS; COMMANDS; AND ORDERS 1. Varieties of Imperatives * * * Austin basically subscribed to similar theory. We use the imperative many times - not always with a threat, however. A command is much close to idea of law than gunman's order backed by threats. But, command too close to meaning of law itself, need to, like Austin, have unobscure frst principle concepts. 2. Law as Coercive Orders * * * * * * * * Policeman ordering person is the exception, not enough to do that all the time. So standard form is general. --> Legal control is, though not exclusively, general. Must add this to 'gunman' example. Further shortcoming: laws are not addressed to the subjects, but still valid. Further shortcoming: Gunman does not issue standing orders, but one-time order, unlike laws. Must suppose there is general belief on part of those whom general orders apply that disobedience likely followed by execution of threat, time and again. Further qualifcation: Most orders are more often obeyed than disobeyed by most of those affected. This fact of general obedience lies crucial distinction to gunman e.g.: mere temporary ascendancy is polar opposite of law. Constructed model so far at best resembles penal statute. To be more true to even penal statute - must address supremacy of legal system within its territory and its independence from other territories. Thus, laws of any country 'will be general orders backed by threats which are issued either by sovereign or subordinates in obedience to the sovereign. ' III: THE VARIETY OF LAWS * * * Compare variety of laws with the simple model of coercive orders, many objections: * Not all laws order people to do or not do things. * Must laws express any legislators desires? * Would enactment not be law if those who voted for it did not know what it meant? These objections are either addressed at content of laws, their mode of origin, or their applicaiton, Also, idea of sovereign and and supreme is misleading, little in any actual legal system that corresponds to it. 1. The Content of Laws * * Social function of criminal statute is that of setting up and defning certain kinds of conduct as something to be avoided or done by those to whom it applies, irrespective of their wishes, with punishment as motivation to do so. But model doesn't ft all: e.g legal rules that bestow power to make Wills or contracts. * They provide facilities, not impose obligations. And not doing it according to statute will simply mean it is a nullity, but not a violation of any obligation. 

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