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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.
o 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:
o 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 stay awake))
-The Rule of Recognition is a conventional rule because judges adhere to legislation because their predecessors have done so (but Green argues that this is not the only reason - it's also because people believe it to be democratic)
o Rule of Recognition is an obligation-imposing rule, but according to the practice theory, a social rule can only impose an obligation if it is 1) believed to be socially necessary, b) reinforced by social pressure, 3) can conflict with a person's self-interest. Conventional rules, however, rarely meet the third criterion because desire and duty pull in the same direction (there is no interest in defecting)

The reach of rulesEven if social rules are necessary to understand legal phenomena, they are insufficient because:
o Hart: Not all systems of primary/secondary rules are legal systems (eg. National Hockey League).
To be a legal system, the set of rules must regulate much of life, including property, agreements,
the use of force (a legal system regulates hockey rules, but not vice versa) - it must have this minimum content

Some argue that Hart's account is incomplete because not everything in a legal system is a rule
(eg. principles and standards) but this is not entirely true because the extent and form of a law o

depends on its context, including these principles and standards - rules are "vague" and "opentextured"; they apply/don't apply uncontroversially to some cases but in other cases they might apply and it is in these areas where the courts exercise their law-making function
Not everything in a legal system is a rule of any kind: definitions are rules on how to use words
(eg. definition of "public authority" in S6 HRA) and are not norms because they don't tell us how to act; some materials in law (eg. court orders) are one-off directives and not norms

Law and Power i. Division of Normative Labour-Hart argues against Austin's top-down view of law as orders of a sovereign backed by threats; though that view is crude, it also highlights law as being about conflict and disagreement, not just consensus (if we are to view the court's role as settling disagreement then this is consistent with Hart's view but other disagreements exist - eg. Rule of Recognition rests on agreement as to what activities make law, but whose agreement?)
Hart notes that social morality and customs are immune from deliberate change and can only evolve, so that society has created a division of normative labour by setting up specialized organs that can identify,
alter and enforce rules. This means that the rules can change, but also subjects people to risks that do not exist outside a legal system, such as the risk of these specialized organs using their power to oppress the majority
It seems that the law depends on narrow official consensus rather than public consensus - it doesn't presuppose an agreement on values or exclude significant dissent; therefore, legal systems do not necessarily express the values of a community. Even if it does, it risks distancing itself from the people by becoming legalistic and technical - thus, Hart argues that the law is fallible partly owing to its nature as a social institution

ii. Coercion and Power--

Hart rejects coercion as a factor of a legal system; he argues that legal systems are composed of some or even all norms that are not coercive
The purpose of sanction-free law is to encourage people to follow it; sanctions are merely a Plan B (eg. US
Code contains provisions on treating the flag that are not backed by sanctions - "were human nature otherwise", all laws can be like that)
Power-conferring norms do not have sanctions: norms governing marriage, for example, only carry the possibility of failure if they are not followed. It is possible to consider failure as a form of punishment and the norm thus as coercive, but Hart argues against this - there are no two separate elements; the obligation and the punishment, and the punishment is merely the power-conferring rule itself
Kelsen says that power-conferring rules are only fragments of laws; their sanctions are found elsewhere in the legal system (eg. marriage norms tell us who has a spouse and who it is, so that sanctions for laws requiring one to support his spouse can be enforced)
However this is a mistake as it contradicts social conceptions of them - it is also a mistake to define nullity as a form of punishment. However, power-conferring rules are intertwined with social power, and they,
just like duty-imposing rules, are coercive in that they distort people's intentions (eg. marriage laws that are confined to heterosexual/certain races are not coercive per se because nobody needs to marry at all so they are unlike laws punishing homosexual behavior, but they still, without imposing punishment,
directed people's behavior)

Therefore, not all laws are coercive but even non-coercive laws channel social power

Law and MoralityHart's disjunction thesis argues that there is no necessary connection between law and morality, but allows for several connections between the two

i. law's purpose-Aquinas thought that law has an overall purpose in that it is "an ordinance of reason made for the common good" - modern conceptions of the constitutive aims (i.e. aims that necessarily exist in a legal system) of law include guiding conduct, coordinating activity for the common good, doing justice,
licensing coercion...
But constitutive aims may not have a connection with morality (depending on what the aims are - doing justice is morally good, guiding conduct is neutral, licensing coercion is ambiguous - and how far they succeed)
Hart argues that human survival is morally good and normative systems that do not aim at it would not be legal systems, but this aim nor any aim would not be unique to legal systems; legal systems, morality, and things like religion and custom all work to the same ends for related reasons, using similar techniques

ii. Law and Justice-"Germ of justice thesis": Constancy is itself a kind of justice, so the very fact that general rules cannot by the practice theory exist unless applied with constancy draws a link with morality. Thus, every legal system delivers formal justice (though not necessarily substantive justice if odious laws are equally applied) in its equal application of the law to everyone whom the law considers alike in the relevant way
The idea of formal justice is odd because norms of justice and norms of injustice need not have different forms, and because the steadfast application of laws to everyone covered by it may be unjust (eg. would it be just to apply a law that requires stoning adulterous women to death in every case? Would it be unjust not to? Unjust to whom? The families of those already stoned to death who may be entitled to expect everyone else to be as well?)
Perhaps one positive element of the thesis is that it allows us to, after being attuned to rule-application,
consider how rules ought to be applied in particular circumstances, and whether the right people are punished and for the right offences

iii. Legal Validity and Moral PrinciplesMorality can be a source of law if they are authorized by things that are sources of law; the rule of recognition needs to be a social construction but its criteria need not

CHAPTER 1: PERSISTENT QUESTIONS

1. PERPLEXITIES OF LEGAL THEORYThe question "What is Law?" has triggered much more debate and attention than any other discipline (eg.
"What is Chemistry?" or "What is medicine?"). While providing examples of what is law is easy, devising a definition that encompasses all instances of law is difficult.

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