Hart The Concept of Law

CHAPTER TWO: LAWS, COMMANDS, AND ORDERS

- person can express a wish, and they dont always have to use the imperative form (ex. go do this, stop, do not eat), these actions are called request b/c no threat on noncompliance - you can also have plea (speaker at mercy), warning (know of pending danger) - we will not define situation where threats of harm and ONLy that is used to force obedience thats not the usual situation of commands ** to command means you have authority over men, not the power to inflict harm (although u can use threat of harm to force respect for authority) Law as coercive order - situation of official like policeman telling car to slow down is NOT standard way law functions b/c you cannot guarantee compliance of every individual - instead, standard form of criminal statute is general: 1. indicates a general type of conduct and 2. applies to a general class of ppl who see law applies to them and than they must comply - officials giving direction is 2ndary - ordering ppl to do things means you have to address them (get their attention), but make laws for people does not - making laws =/ ordering ppl to do this - laws are still valid even if those affected have to find out for themselves what laws are in the books and who is affected - also for law to be law, cant just be law at that moment (give me money now), has to be a STANDING order to be followed time after time by classes of ppl - also supposes that w/e the motive, most laws are more often obeyed than disobeyed as seen by habits of obedience this factor the diff b/w a sovereign and gunman carrying threat - legal system of the modern state has SUPREMACY within territory and INDEPENDENCE from other systems

CHAPTER THREE: THE VARIETY OF LAWS

- not all laws order people to do or not do things, they dun have to be orders given to others *** what about laws that confer powers to private individuals to make wills/contracts, etc or laws that give power to officials to make laws? - enacted laws dun always have to express any legislators real desires or wishes (you can vote for something you not completely sure what it means)

- 3 objections: 1. content of laws: criminal law is a duty we obey or disobey, disobey = break the law, so purpose of criminal statute is to set up and define certain kinds of conduct that should be avoided, we have punishment/sanction to provide one motive to abstain from those activities - criminal law and tort law (rules which determine what types of conduct are punishable wrongs aka breach of duty) most like Austins idea of orders - BUT BUT doesnt work for legal rules defining the ways valid contracts are made people dun have to act in certain ways whether they wish to or not - just provide individuals with facilities to realize their wishes, by conferring legal powers upon them to create (under certain specified conditions) contracts within the law - indiv have power to mould their legal relations with others through contracts - how can you say all laws backed by threats now?? - not comply is not sanction it is NULLITY (without legal effect), failure to comply is not a breach of duty - criminal law: do this whether you wish to or not vs. other law if you wish to do this, this is the way to do it - another class of laws confer legal powers to a public official, above is private person - in case of a court, some rules specify the subject matter and content of judges jurisdiction give judge the power to try certain cases - other rules like manner of appointing officials, tenure of judicial office etc - these rules are NOT made to deter judges from certain actions, but to define the conditions and limits under which the courts decisions are valid -also if court approves a contract or enforces order not in keeping with law, law is still enforced b/c interest to have court make legally binding decisions until superior court rejects it, so the law exists, just has a legal defect - also works on rules on subordinate legis authority, legislation is an exercise of legal powers effective in creating legal rts and duties - have rules over the ubject matter over which legis power can be exercised, others on qualifications of legis body conseq of failure (aka failure to conform) renders legis action a nullity Austin is wrong with law back by threats ppl who vote for legislation that passed did not obey the law ** major flaw of Austin is that he did not take into account variety of laws, not just one uniform standard, there is criminal laws and power conferring laws - will admit that both power conferring rules and criminal law create standards so both r rules Austins rebuttal: Nullity as sanction

- Hart says we call see nullity as sanction, thats confusion nullity is not rlly an evil to the person who failed to satisfy some condition - nullity is not a punishment you can attach to rules to have ppl abstain from activies which rule forbids - look at criminal law, here you can identify: 1. a type of conduct rule prohibits 2. sanction intended to discourage it - but in PCR, rules merely withhold legal recognition, not designed to make ppl behave in certain ways - to argue otherwise, you have to broaden the definition of sanction Power-conferring rules as fragments of law - even rules of criminal law are genuine law: law is the primary norm which stipulates the action - there is no law prohibiting murder, there is only a law directing officials to apply certain sanctions to those who murder in certain situations - under this view, all genuine laws are conditional orders to officials to apply sanctions if x is done or omitted, then apply sanction of y - shift from thinking of original conception of law as threats of sanctions for noncompliance to focusing on the orders to officials to apply sanctions - dun need to recast criminal law as fragment of other laws, they are already order backed by threats - rules that confer legal power to ppl are fragments of real complete laws can phrase it as iff a will is signed, two witnesses, then cam will take legal effect etc 2. mode of origin: - enactment of law is a deliberate dateable act ppl who make legislation in a conscious procedure to make law what about custom law??? - is custom law law? in any society there are customs that form no part of law )not violating law to not tip hat to a lady) - custom law is only law if it is recognized as law by a certain legal system - question come: what does it mean to have legal recognition? Do we need a sovereign or his agent to order custom to be obeyed? - look at austins command theory: law is order of sovereign or subordinate ( who has authority delegated by sovereign) - tacit order: sovereign non-interference is a silent subst for giving authority - same with custom law: til court applies them, rulers r mere customs, rules first get legal recognition when court make orders in accordance with them, if sovereign dun

interfere, tacitly ordering subjects to obey judges orders - custom law doesnt necessarily have to be approved by courts in order to be law - critcism of tacit command idea: legislature COULD take legal status away, but failure to do so may not be sign of legislators wishes 3. range of application: -order backed by threats is expression of wish for OTHERS to do or abstain from something - an abs monarch may be exempt from the scope of laws *** but range of application of law is always a question of its interpretation in some places, legislation is a self-binding force -operation of a promise better than coercive model - promise creates an obligation (for words to have certain effect, rules must exist so that persons are bound to do things they say under certain circumstances - when we promise, we change our own moral situation by imposing obligations on ourselves and conferring rights on others we exercise a power conferred by rules to do this -self-binding characteristic of legislation, rules governing making of law are very complex, usually no person TO WHOM promise is made ** we need fresh conception of legislation as modification of general standards of behavior tobe followed by society generally - legislator not just giving law, he is bound too Summary - objection to command theory: 1. there r varieties of law that do not fit this description (1. penal statue, has a diff range of application duties can apply to law maker as well as subject) 2. other statutes arent orders bc dun require ppl to do things, but may confer power to them, offer facilities instead 3.some rules of law originate in custom and do not owe legal status to any conscious law creating law - counterarguments to this: 1. expand sanction to include nullity 2. narrow notion of legal rule to exclude power conferring rules as mere fragments of law 3. expand notion of order form verbal to include tacit commands (noninterference with orders given by subordinates) to explain custom law CHAPTER FIVE: LAW AS UNION OF PRIMARY AND 2NDARY RULES - the root cause of failure: elements out of which theory was constructed: ideas of order/obedience/habits and threats do not include the idea of a rule - what is a rule??? Look below

- primary rule: human beings r required to do or abstain from certain actions whether they wish to or not - duties, actions involving physical movement or changes - secondary rule: ppl may by doing or saying certain things, introduce new rules of the primary type, modify current ones, or determine their incidence and control operations - power conferring, public and private, provide for operations that lead to the creation or variation of duties + obligations *** combination of these two = the key to science of jurisprudence Idea of obligation -in some cases, human conduct is obligatory where do we get idea of obligation? Diff between being obliged to do it and having a obligation (ex. gunman) ** the statement that someone obliged to obey someone is psychological vs. someone saying they had an obligation - facts about the beliefs and motives are not necessary for the truth of a statement that person had obligation to do something (ex. whether or not u have to do military service irrelevant to your beliefs) carries implication that person will do it - just bc u deviate from rules doesnt automatically mean court will apply sanctions to those who break them think about the justification for sanctions - this false bc if u b disobedient and bribe officials, does not mean you will no longer b caught/ have sanctions ** statement that someone is under obligation implies the existence of a rule, but not tru vice versa all the time (ex. rules of equiette not a duty) - rules impose obligations when the general demand for conformity is insistent and social pressure is on ppl who deviate or threaten to do so -(ex. you have custom rules where there is no centrally system of punishments and social pressure just disapproval) - morality: when pressure depends heavily on person feeling shame/remorse/guilt - physical sanctions = primary law - how to determine if you have obligation: the insistence on the importance or seriousness of social pressure behind the rules - two characteristics of obligation: 1. rules supported by this srs pressure are importanat b/c they r necessary to maintenanve of social life rules that restrict free use of violence 2. conduct required by these rules can conflict with what the person wants to do Internal aspect of rules - Hart gun use this to dispose of claims of the predictive theory

-be a member of the group and accept them and use them as guide to conduct - officials, lawyers, private ppl etc - violation of rules is not basis for prediction that hostile reaction happen but a REASON for hostility External - observer who does not accept rules but is still aware - observer content to record the regularities of observable behviour wher reconformity of rules, see that deviation = hostile reaction, so after time external observer can predict and assess chances thar deviation from norm will be met with hostile behavior - these ppl wont say I had an obligation will say I will suffer if__ Elements of Law 3 defects: 1. uncertainty: defect in social structure of primary rules, you dun know what the rules r cuz no procedure for settling doubt, just informal set of standards (small village ex) 2. static: only mode of change in rules is thru slow process of growth, in extreme case no way of deliberately changing gen rules, but cud not have varied obligations, each indivi would simplty have fixed duties 3. inefficiency: disputes will always occur bc no agency empowered to give final say, lacks final and authoritarive determinations -punishments not administered by special agency, but left to individ or group at large Remedy - supplement primary rules with secondary rules go from pre-legal to legal 1. introduce rule of recognition: specify some features of law (ex. written authoritative text) - key is that it is authoritative - in more developed legal system, more complex system of superior courts, idea of a legal system, rules are not just discrete unified set, but unified * identify a given rule as possessing the required feature to be rule idea of legal validity 2. rules of change: empower individual to introduce new rules for the conduct of group, and to eliminate old ones 3. rules of adjudication: 2ndary rules empowering indiv to make authoritative determinations of whether a primary rule has been broken -identify indiv who are to adjudicate and the procedure - do not impose duties but confer judicial powers and special satus on judicial declarations bout breach of obligation concept of judge/court/jurisdiction

CHAPTER SIX: FOUNDATION OF A LEGAL SYSTEM - command theory: foundation of a legal system is when majority of social group habitually obey the orders backed by threats of the sovereign - Hart says no, foundation is when 2ndary rule of recognition is accepted and used to identify primary rules of obligation - custom law is not law b/c tacit command but acceptance of rule of recognition - internal pov: unstated rules of recognition (ex. in soccer game players use rules, dun have to be formulated) shared acceptance of rules internal statement of it is the law that__ external in the us they recognize as law__ - legal validity dependent on passing test of rule of recognition - no connecton between validity of rule and its efficacy unless rule of recog specifies - notion of a superior and a supreme criterion refer to a relative place on a scale, dun mean a legally unlimited legis power - diff btw this rule is valis bc fulfills what queen enacts is law (statement of value cuz u saying system is excellent) vs. in England, this rule last used by courts as ultimate rule of recognition (external) (legal validty) 1. person who srsly asserts the validity of given law makes use of rule of recognition 2. this rule of recog accepted not only by him but by general group CHAPTER 9: LAW AND MORALS -basis of legal sytem either rooted in: 1. some specific conformity to moral or justice, 2. support of community aka diffuse conviction that there is a moral obligation to obey it - Natural Law: certain priniciples of human conduct awaiting discovery by human reason - hart disdainful of it b/c natural law ppl say of u brrak prescriptive natural law, doesnt mean law bad, means humans sinful however scientific theories dun work this way Minimum content of natural law - universally recognized principles of conduct which have a basis in elementary truths concerning human beings, their natural environ, and aims - survival is aim, reason why law and morals should include specific content - without such content, laws n morals cudnt forward min purpose of survival - w/o content, no reason to voluntarily obey rules - w/o cooperation from others who want to maintain laws, coercing ppl who disobey rules cudnt work i.) human vulnerability: restrict violence in killing/inflicting harm if we dun have these rules, whats pointing having rules of ANY other kind aka thou shalt not kill crucial ii.) approx equality: men differ from each other in physical n mental ways, dun want indiv so

powerful can subdue other ppl permanently __> make ppl less nasty, brutish iii.) limited altruism: men not devils or angels, but tendency to aggression are frequent enough can be fatal to social life if uncontrolled iv.) limited resources: need food/clothes/shelter, most times have to be constructed so ned instit of property and respect for it static rules: obligations they impose and incidence of these obligations are not variable by individuals BUT development of division of labor requires dynamic rules (ex. rules that allow men to trade objects) - need for cooperation, division of labor make other forms of dynamic or obligation creating rule necessary in social life -this most neede when exchanging something intangible like services v.) limited understanding and strength of will : ppl obey law for diff reasons(internal, external) but the advantages of mutual forbearance real: number n strength of those who would cooperate voluntarily in coercive system is greater than malefactors need sanctions - Hart gave new framework for natural law setting of these natural facts and aims make sanctions possible and a natural necessity Legal Validity and Moral Value - need voluntary cooperation creation of authority also help est coercive power of law and gov - use it against malefactors who get protection of law but still break them i.) power and authority: some ppl say legal system must rest on sense of moral obligation since cannot rest on mere power of man over man problems: what is their accepted rule of recognition, inadequacy of orders backed by threats - for coercive power to exist, some must voluntarily co-operate in system and accept its rules - but just cuz many coerced by laws, doesnt mean they see it as morally binding diff reasons for allegiance (disinterested interest in others, long term interest, traditional etc) - legally obligated =/ moral obligation ii.) influence of morality on law CHAPTER 7: FORMALISM AND RULE-SCEPTICISM Open Texture of Law - when you have a large group, cannot give rule to each indiv specifically, need general rules/standards/principles as main instrument of social control

- thus, law must refer to CLASSES of ppl and classes of acts, things, circumstances - maximal (legislation) and minimal (precedent) use of general classifying words - all forms of general communication have some level of doubt regarding meaning of whats said so need to use some degree of common sense vs. explicit forms like (every man must take off hat in church) seem clear, dependable, certain (but think of vehicles in park example) - general terms useless as a medium of communication unless there were such familiar, generally unchallenged cases