John T. Noonan, Jr.; THE CONCEPT OF LAW. By H. L. A. Hart. Oxford: Oxford University This content is only available as a PDF. © by The University of . Hart's book 'The Concept of Law' claims to be an exercise in both analytical jurisprudence (analyzing everyday language to give an analytical account of how . device, see Blachshield, Hart's Concept of Law, 68 ARcHrv FDr REcarrs 2 In addition to Tim CONCEPT OF LAw, Professor Hart's writings in legal philosophy.
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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.
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.
The Concept of Law.pdf
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. Access to the complete content on Oxford Handbooks Online requires a subscription or download. Public users are able to search the site and view the abstracts and keywords for each book and chapter without a subscription. Please subscribe or login to access full text content. If you have downloadd a print title that contains an access token, please see the token for information about how to register your code.
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The Concept of Law
Shapiro - - In Arthur Ripstein ed.In common law systems, the secondary rules define the law making powers of the legislatures and confer on the courts the authority to interpret and declare relevant law in particular cases that come before them. If there is non-compliance with the number of witnesses, the will shall not be a valid document.
Hart characterizes the distinction between primary and secondary rules in the following way: primary rules either forbid or require certain actions and can generate duties or obligations; secondary rules confer powers, public or private and sets up the procedures through which primary rules can be introduced, modified, or enforced.
Being under an obligation implies the existence of a rule, however, it is noteworthy that rules can also exist without obligating anyone e. Moreover, there are rules which confer powers of an official nature.
The sovereign is characterized by the habit of obedience that is owed to him by the masses. Help Center Find new research papers in:
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