The Concept of Law is the most important and original work of legal philosophy written First published in , it is considered the masterpiece of H.L.A. Hart's . H. L. A. Hartʼs The Concept of Law is, of course, primarily a work of legal philosophy. It is indeed the most influential work of legal philosophy in the English. Faculty Scholarship. Fall Professor H.L.A. Hart's Concept of Law. Robert S. Summers. Cornell Law School, [email protected] Follow this and additional.
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John T. Noonan, Jr.; THE CONCEPT OF LAW. By H. L. A. Hart. Oxford: Oxford University Press, Pp. viii, 21s., The American Journal of Jurisprudence . Jia Sajjal H L A Hart was born in , and graduated from New College, Oxford, where he read classics, ancient history and philosophy. Hart suffered from. a book by H. L. A. Hart, Professor of Jurisprudence at the Uni- versity of device, see Blachshield, Hart's Concept of Law, 68 ARcHrv FDr REcarrs UND SOZIAL-.
Select your specializations: That said it is pertinent to note here that criminal law and the law of torts are not the only category of laws. Hart, Is There Knowledge by Acquaintance? Philip Schofield - - Jurisprudence 1 2: Hart, in his Essay in Jurisprudence and Legal Philosophy has distinguished between a committed statement and a detached statement expressing an internal point of view. The Idea of Arbitration Jan Paulsson. Hart feels that no society could support the number of officials necessary to secure that every member of the society was officially and separately informed of every act he was required to do.
Publications Pages Publications Pages. Search within my subject: Select your specializations: Politics Urban Studies U. Hart, The Con History Law Linguistics Literature. Music Neuroscience Philosophy Physical Sciences. Hart, The Concept of Law. Mar DOI: Read More.
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Search within Abstract and Keywords H. Kramer Matthew H. All rights reserved. They identify inadequacies both with the account of sovereignty and with the notion of laws as orders backed by threats.
In summary, a legal obligation or a duty is different from being obliged or forced to do something. Jia Sajjal Next Hart draws a distinction between commands and orders backed by threats. A distinction he feels has been largely ignored by Austin.
It requires compliance not implication that there is a relatively stable because of respect but solely due to the fear of hierarchal society of men in which the threat of punishment or sanctions.
A command means to exercise authority over men, NOT power to inflict harm, and though it may be combines with threats of harm in case of non-compliance, a command is primarily an appeal not to fear but to respect authority.
Hart feels that no society could support the number of officials necessary to secure that every member of the society was officially and separately informed of every act he was required to do. Official individuated face-to-face directions here have a secondary place: Therefore, generality is the first feature we should add to the model of the gunman if it is to reproduce for us characteristics of law.
This he feels is misleading in suggesting a parallel to the face-to face situation which really does not exist and is not intended by those who use this expression.
Laws are complete when they are made, it is desirable that they are brought to the notice of the general public, but they are in a finished form whether or not they are conveyed to the public.
Besides the introduction of the feature of generality to the gunman model, a more fundamental change must be made. It is true there is a sense in which the gunman has an ascendancy or superiority over the bank clerk; it lies in his temporary ability to make a threat, which might well be sufficient to make the bank clerk do the particular thing he is told to do.
There is no other form of relationship of superiority and inferiority between the two men except this short-lived coercive one. The question how many people must obey how many such general orders, and for how long, if there is to be law, no more admits a definitive answer than the question how few hairs must a man have to be bald.
Mere temporary ascendancy of one person over another is naturally thought of as the polar opposite of law, with its relatively enduring and settled character. It remains to be seen whether this simple, though admittedly vague, notion of general habitual obedience to general orders backed by threats is really enough to reproduce the settled character and continuity that legal systems posses.
How are they to fit into the OBT model? Moreover, Hart says that the law has features of supremacy and independence within its territory that cannot be reproduced in this simple model. Within a country like Pakistan, for example, there are various bodies such as local authorities or officials that give out orders in return of which they receive habitual obedience, for example; WAPDA.
However, it is noteworthy here that this body is subordinate to the Head of the State and thus, may be described as an agent of the Government of Pakistan. The Government is also independent as it is arguably not in the habit of obedience to the government of any other state. In this chapter, Hart considers what law would be like if we assumed that law really consisted of orders directed to us by the legal sovereign. He makes three main criticisms: The model of orders is much closer to the idea that all laws impose duties as though all laws were really of the sort that we find most common in criminal law; as containing orders not to perform certain acts crimes , the failure of which imposes a sanction and tort.
That said it is pertinent to note here that criminal law and the law of torts are not the only category of laws. Hart states, and rightly so, that law extends to the laws of contracts, and wills etc, which do not have mandatory application to everyone and do not impose duties or obligations. Instead they provide individuals with facilities for realizing their wishes, by conferring legal powers upon them to create certain conditions within the coercive framework of law.
What needs to be borne in mind is the fact that Austin does deal with the issue of public and private power conferring rules and sees nullity of transactions as a sanction because it leads to the loss of an expected benefit. Hart however states that this would be missing the point, since the whole point of power conferring rules, as their very name suggests is to confer power or to provide the individual with facilities to make contracts and not impose a sanction.
To further elaborate this claim he gives the example of Section 9 of the Wills Act. If there is non-compliance with the number of witnesses, the will shall not be a valid document.
Rules conferring powers fall into distinguishable kinds themselves. For example; Rules regarding capacity, manner and form, maximum and minimum duration for contracts etc. Moreover, there are rules which confer powers of an official nature. If a judge listens to a case with an issue that exceeds the scope his jurisdiction, the decision may be voidable.
He feels that talking about nullity of a contract as a sanction takes the focus away from the contract itself. Nullity merely withholds legal recognition; it does not finish the contract itself.
Moreover, Hart says that the legal system makes provisions for power conferring rules.
It would be ludicrous to reduce the variety of laws into a single simple type as civil law is the recipe for creating duties, whereas, criminal law imposes these duties. In other words, this means that law is a mere direction to officials to apply certain sanctions IF a breach has occurred.
Therefore, the general form of this extreme theory of law appears to be that instead of law being a series of orders backed by threats of sanctions, it is now directions to officials to apply sanctions when a breach occurs. But then what about the perspective of the private individual when he is conferred with a power; i. Kelsen would reply that if the individual breaches the term s of the contract, the order will be administered under law to the official to apply the sanction- Under Section 73 of the Contract Act.
There could also be directions to private individuals themselves to for example A to not enter into a contract with B, if B is under aged or has not given consideration. The sanction would then be the non-performance or the extinguishing of the contract itself.
If it can be shown that law without sanctions is perfectly conceivable, both theories will fail. The idea that criminal law applies to officials and not citizens clouds the distinction and obscures the character of law. Why should the law not set a standard of conduct for the behavior of ordinary people instead of waiting for the sanction to be applied? He feels that it would be limiting and depressing if the principle function of law was restricted to private litigations or prosecutions as a means of social control and ignore the diverse ways in which law is used to control, guide and to plan life out of court.
Jia Sajjal Hart sums up his argument by giving an example with reference to the rules of cricket. Moreover, Hart points out that it is better to treat the situation of power conferring rules as promises rather than coercive orders because a promise creates an obligation for the promisor.
This view may be applicable to the making of contracts, wills, etc buts its application to criminal law and the law of tort is questionable. It appears that under this the promisor, will covenant with the state that he shall not commit a crime against his fellow men, but this entails a utopian scenario where the use of sanctions are probably not needed. Its applicability in real life is unlikely. Hart however, points out that with law it is not necessary in every case to be able to locate the time and place of the coming into force of the order.
He points out to the legal status of a local custom. Hart says that it is not true that custom is not law unless it is recognized by courts because in fact IT IS law because people obey it; they have internalized it.
A distinguishing characteristic of law lies in its fusion of different types of rules. Jia Sajjal Chapter 4; Sovereign and Subject: Austin has stressed that whenever there is law, there is the concept of an illimitable sovereign who is as essential to society as the backbone of a man.
The sovereign is characterized by the habit of obedience that is owed to him by the masses. Moreover, it is important to examine whether the legally illimitable status of the supreme law giver is necessary for the existence of law, and whether either the presence or the absence on limits on the sovereign can be understood in terms of the habit of obedience.
In order to explain this concept Hart once again uses the aid of a hypothetical situation where he identifies an absolute Monarch- Rex, who rules a community for a very long period, and the people of which, obey him. Moreover, if all that was required to make Rex the sovereign was habitual obedience, what happens when Rex dies and Rex II succeeds his father to the throne?
The mere fact that there was a general habit of obedience to Rex I in his lifetime is no guarantee that Rex II will be habitually obeyed as well. Therefore, there is nothing to make Rex II the king until people of the community develop a habit to obey him.
Hence, until people start obeying Rex II the society will remain in a state of chaos. Hart states, that the way out of this problem is to secure the obedience of people through the system of rules which bridge the transaction from one law giver to another.
In other words Rex will regulate in advance that the people must obey Rex II after his death. It is obvious however; that with these expressions we have introduced a new set of elements [rules] which cannot be explained in terms of habit of obedience. In fact, the idea of habitual obedience fails in two different though related ways where one legislator succeeds another.
Firstly, mere habits of obedience to orders given by one legislator cannot confer on the new legislator any right to succeed the old and give orders in his place. If both the aforementioned right and presumption are present there must have been acceptance of the rule which allows the new legislator to succeed the old. The complex social practice he then talks about is rule following.
And in order to understand what rule following is he differentiates between a habit and a rule. However, deviance will not lead to criticism from society. Whereas when talking about a rule, deviations are met with criticism and there will be pressure from society to conform. This relates to the internal aspect of rule following. Under habitual obedience this internal aspect is lost as people confer to laws only for the external element of law. Hart feels that for a social rule to exist people must look at it internally and internalize its acceptance.
To explain this point further he gives the example of the game of chess. Moving the queen two spaces ahead would mean to someone who does not understand the rules of the game as a mere habit- because this is the external point of view. When these rules will not be followed, it will be met with criticism from those holding an internal point of view. What Hart is trying to say is that people can accept rules without compulsion.
What is necessary is that there should be a critical reflective attitude to certain patterns of behavior and this should display itself in criticism including self criticism , demands for conformity and an acknowledgment that the demands are legitimate. This is primarily due to human nature.
Humans do not like restrictions and seldom adhere to prohibitions if they go against their personal interests. Sanctions are crucial to compliance with laws. Moreover, Hart states here that criticism can me a motivating force, why then does he in chapter three rule out the possibility of criticism as a sanction as purported by Austin?
There may be a revolution and the society may seize to accept the rule. His theory accounts for this fact].
Jia Sajjal ii The Persistence of Laws: In R V Duncan a woman was prosecuted in England and convicted for telling fortunes in violation of the Witchcraft Act, This is an illustration of how a statute enacted three centuries ago can still be good law? The question that arises is how can law made by an earlier legislator long dead still be law for a society that cannot be said to have habitually obeyed him?
The answer to this lies in the idea of substituting the simple habit of obedience to currently accepted fundamental rules which govern the right to legislate and describe the persons who have this right.
So when Rex I dies, his legislative work lives on for it rests upon the foundation of the general rule which successive generations continue to respect. Bentham and Austin have defended the idea of a habit of obedience integral in the persistence of laws by stating that the law passed by Rex I, is obeyed by Rex II because of tacit approval of the old law by Rex II.
Even though Rex II could change the old laws he does not do so in order to breed familiarity and continuity. With regard to habitual obedience Austin states that the requirement of HO is to be rendered towards an institution and not the monarch individual ] For Austin the sovereign was someone who was obeyed by all but himself obeyed no one.
Hart is of the opinion that the sovereign can and is challenged. To support his claim he gives examples of substantive limitations and in particular those found in the United States of America where the division of powers between the central government and also certain individual rights, cannot be changed by the ordinary process of legislation. Any attempt to change these is to be considered ultra vires, and declared legally invalid by the courts.
Such camps function with the approval of the higher ups in American politics. Hart says that social rules involve a standard accepted by some members of a social group, and the idea of a rule is better at explaining the law than the hierarchical, one- off, nature of an order. Rules allowing for the distinction between legal duties and powers can account for the fact that laws apply to the institutions that make them, and explain why there are some laws that do not appear to have any particular origin, such as customary law.
Hart commences this chapter by giving a short summary of why the simple model of law as coercive orders fails to reproduce the salient features of a legal system. Notably those that confer powers of a public or private nature. Moreover, the sovereign cannot be identified with either the electorate or the legislature of a modern state. In view of the above, Hart feels that these theories have failed because they do not take into account the idea of rules, without which, one cannot elucidate even the most elementary points of law.