Table of Contents

Reading 2

Hart,The Concept of Law, preface and ch 1 2

Preface by Leslie Green 2

Chapter 1: Persistent Questions 4

1. Perplexities of Legal Theory 4

2. Three Recurrent issues 5

3. Definition 5

Raz,Ethics in the Public Domain, ch 9 5

1. The linguistic approach 5

2. The lawyer’s perspective 6

3. The Institutional Approach 6

4. Is Legal Philosophy Value Free? 6

Finnis,Natural Law and Natural Rights, ch 1 7

Dickson,Evaluation and Legal Theory, ch 1 10

1. Introduction 10

2. WHat makes a successful theory of law? 11

Blackburn, Philosophy Bites no. 016, available atphilosophybites.com 11

Reading

Hart,The Concept of Law, preface and ch 1

Preface by Leslie Green

Hart’s Message

• A legal system set-up can be beneficial but it always exerts a price as it risks injustice and alienating its subjects from the norms that govern their lives (thus the law must be approached with caution not celebration)

• There can be no ‘pure’ theory of law because to understand the nature of law we need to draw on social theory and philosophic inquiry

• Value of jurisprudence is to understand our culture and institutions to be able to make moral assessments

Law as a social construction

• Laws are not matters of nature but artifice; they are social constructions. But it may not be correct to view laws as conventional and based on common practice, a history, and the place that they govern, for a ‘natural law’ view requires “agreement with Nature”, universal application, unchanging and everlasting – the same everywhere and at any time, “eternal and unchangeable”, valid “for all nations and for all times” (Cicero)

• Under this view, therefore, the law is not made up or changeable – it is a matter of reason not of will. Not many modern theorists believe in it completely, but some believe in part of it. Ronald Dworkin argues that laws include norms found in trieties, customs, constitutions… but also moral principles that justify the norms found there.

  • Thus the things justified by moral principles are socially constructed but the justifications are not. In this way, we are committed to a version of natural law – law that we cannot change – because nothing we do can make a sound justification unsound

  • Also, since moral principles can justify an arrangement without anyone knowing, we can be bound by laws that we do not know about, and there may be some laws that are, because of the limits of moral knowledge, are not knowable

• Hart rejects this – all law exists because someone put it there (intentionally or otherwise), all law has a history, is changeable, is known and knowable. Justification does not suffice to make law and not all law has good justification (this is legal positivism – the conception that all law is posited, or made up)

• Social constructivists are legal positivists, but not vice versa – Kelsen believes that all law is posited but that every legal system contains at least one norm that is not posited but ‘presupposed’. He argued, like Kant and Hume, that “there can be no ‘ought’ from an ‘is’ alone”, so that no social construction can ever create a norm. If norms exist, therefore, law-making processes must be presupposed to be valid. He therefore considers the study of socially constructed norms (sociological/psychological/historical inquiry) as “alien elements” in jurisprudence

• Hart rejects this too – he argues that the basis of law is a social construction that arises from people thinking and doing certain things, rather than a justification – the purpose of jurisprudence, therefore, is to identify the social construction that gave rise to law and how it arose from mundane social facts

i. Law, Rules and Conventions

• Hobbes, Bentham and Austin thought that law is constructed from commands, threats and obedience (revolving around a sovereign whom the subjects obey); Hart identifies the most important building blocks of law as rules

• Hart argues that not all laws are commands (not all legal systems must have a sovereign), that laws continue after creators perish, that threats can oblige people to do things but cannot create obligations – thus, the missing element of a sovereign account is social rule

• For Hart, law is a union of primary rules that guide behavior by imposing duties and conferring powers, and secondary rules that identify, alter and enforce primary rules (therule of recognition is a secondary rule – it provides criteria of legal validity)

• Therefore the constitution of legal systems rests not on moral justification/logical presuppositions but on customary social rule created by courts, officials and people (Hart suggests that the UK rule of recognition is ‘whatever the Queen in Parliament enacts is law’ – thus, this is law not because it is morally justified but because a customary rule recognizes it as such)

• Rules are made up of practice – rule have an ‘external aspect’ in that people act in a common way, and an ‘internal aspect’ involving ‘acceptance’ – the willingness to use the regularity as a guide for behavior (thus acceptance is independent of approval – people accept by acting this way, maybe because of fear or conformism or to please others or because they approve)

• Thus this is a very practical theory of rules – it is controversial because:

  • Fails to deliver a test for whether something is rule-following or accidental/habitual patterns in behavior, or to explain what makes a customary rule obligatory: there are rules that are not social practices (individuals’ rules), social practices that are not rules (surrendering your wallet to robber rather than resisting), a rule can act as a justification for something rather than supposing that there is justification for the rule

    • To counter these Hart confines his account to conventional rules – those whose acceptance is founded by general conformity (eg. driving on the right is such a rule (if most people didn’t follow it I probably wouldn’t either) but not driving while sleepy is not (if most people are sleepy I’m more likely to...

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