JURIS HART: CONCEPT

HART: CONCEPT OF LAW

Legal positivism is the dominant tradition in the jurisprudence of modernity. The theory given by HLA Hart is widely recognised as providing the high point of legal positivism. According to him, legality is something which developed in evolutionary fashion through a growing complex system of different kinds of rules, not something politically imposed on an otherwise chaotic social order to structure it. Hart has seen the law as the shared acceptance of rules, not something forced upon us. Hart presented the benign and functionalist face of liberal legality, transforming the early positivist theme of an external coercion enforcing the law and making the subject (citizens are the subject of a jurisprudence) feel obliged by threat of violence to remain lawful- the threat of sanctionsinto an image of the legal subjects normative obligation to abide by legal rules. Hart domesticated and subdued the violence that had always been a part of the institutional imagination of liberal legality. He offers an institutional imagination which both describes and justifies key elements of the period of organised modernity. A period of social history which is both near and yet far from our present location; his writing assumes the efficiency and progressive nature of social institutions, it reflects a period of time where social order and peace appeared guaranteed by modern institutions and where those institutions looked as if they were designed to enable us to achieve our personal and social desires; a period where law seemed to offer us possibilities of enablement rather than threatened coercion. For Hart the legal system is a system of social rules. The rules are social in two senses: first, in that they regulate the conduct of members of societies; secondly, in that they derive from human social practices. They are not the only social rules. There are for example, rules of morality. Like rules of morality, laws are concerned with obligations: they make certain conduct obligatory. But unlike rule of morality they have a systemic quality which hinges on the inter-relationship of two types of rules, called by Hart primary rules and secondary rules. Hart objected to Austins command theory on the grounds that it failed to encompass the variety of laws. Harts theory distinguishes between primary duty-imposing rules and secondary power conferring rules. According to Hart there are three kinds of secondary rules. Rules of adjudication confer competence on officials to pass judgment in cases of alleged wrongs and also to enforce the law. Rules of change regulate the process of change by conferring the power to enact legislation in accordance with specified procedures. Rule of recognition determine the criteria which govern the validity of all other rules of the system. This constitutes the skeleton of the legal system. But a legal system can only be said to exist if it is effectively in force. There are, according to Hart, two minimum conditions necessary and sufficient for the existence of a legal system. These are that, those rules of behaviour which are valid according to the systems ultimate criteria of validity must be generally obeyed, and its rule of recognition specifying criteria of legal validity and its rules of change and adjudication must be effectively accepted as
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JURIS HART: CONCEPT

common public standards of official behaviour by its officials. The first condition has to be satisfied by private citizens and they may obey for any reason. The second condition must be satisfied by officials of the system and they must regard the secondary rules as common standards of official behaviour and appraise critically their own and each others deviations and lapses. They must accept these rules and observe them from, what Hart calls, the internal point of view. .

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