Hart Legal Theory Summary
The concept of law emerged from Hart`s early lectures as professor of jurisprudence at Oxford after Arthur Goodhart`s retirement in 1952. [7] [8] Among Hart`s early lectures on law, which are developed in the book, is his 1953 essay entitled “Definition and Theory in Jurisprudence”. [9] Hart`s discussion of Austin`s legal positivism, the separation of law and morality, and the open texture of legal rules can be seen in his April 1957 presentation of the Oliver Wendell Holmes Lecture at Harvard Law School entitled “Positivism and the Separation of Law and Morals.” [10] The book develops a differentiated vision of legal positivism. Hart cannot fully accept either formalism or skepticism of rules as methods of assessing the structural foundations of a legal system. He was concerned that formalism might be based on rigid adherence to general rules of conduct or conduct to dictate, if not impose, the measures to be taken in a particular situation. In any jurisdiction, there may be instances of unclear laws, and this judicial prudence can be essential to clarify existing laws in these cases. Hart therefore argued that in order to make vague laws clearer, judges could, through their decisions, make certain laws that are not in the law. He explained, rejecting Dworkin`s position that judicial discretion was only a way to extract the most enduring legal principles, but not to enact new law. [4] Primary rules are rules or laws that govern general societal behavior.
Therefore, primary rules construct legal obligations and consequences if they are not respected. A good example of a primary rule is the anti-murder law; It prohibits a person from killing and draws the consequences for having committed it, attempting to commit it and conspiring to commit the crime. [13] External aspects can be equated with external recognition requirements before a country can obtain recognised status. Despite the existence of rigid constitutionalism, a government that can still gain legitimacy can have a new legal system under a new legal order, even if it has gained power through additional legal means such as revolution, if independent nations from outside expand international recognition. 21. Of course, with enough logical connections and operators, this set of standards can undoubtedly be formulated as a single and terribly cumbersome principle. (Similarly, though less chaotic, we could formulate John Rawls` principles of justice as a single principle.) However, it is preferable to understand the recognition rule as a set of norms in which the criteria of legal validity are integrated. Chapter four deals with the relationship between sovereign and subject. Hart discusses the habit of obedience and the continuity and persistence of the law. The chapter concludes with an examination of the legal limits of legislative power and the sovereignty behind the legislative branch. Hart suggests that the law is a union of primary and secondary rules.
He discusses the concept of obligation and elements of law. Chapter six presents Hart`s assertions about the foundations of a legal system: the rule of legal recognition and validity. It also raises new questions arising from its claims and examines the pathology of a legal system. Chapter six deals with formalism and scepticism about rules. Hart examined: the open texture of the law, varieties of scepticism about rules, court decisions, and uncertainty in the recognition rule. The next two chapters deal with the relationship between justice and morality, or laws and morality. The first includes Hart`s assertions about the principles of justice, moral and legal obligation, moral ideals, and social criticism. The final chapter examines: natural law and juridical positivism, the minimum content of natural law, legal validity, and moral worth. The last chapter deals with international law.
Topics include: sources of doubt, obligations and sanctions, state sovereignty, international law and morality. The central features of Hart`s legal theory stem from the fact that many parts of the world still use the theory in their legal environment. The use of the rules of theory proves the long-term effect of the theory and its acceptance over the years could only testify to its validity. The laws of the legal system have helped humanity and will continue to be there no matter how the environment changes. Their validity and strength in achieving their objective depend on the legal theory that supports them in the design and construction of a legal system in which this right must play its role. It is indeed a complex and reliable social decision-making process, because disputes must be resolved. The alternative to the absence of a good legal theory could only be more problems, if not chaos or anarchy. That morality is distinct from legality has been established in Hart`s legal theory. Such a simple statement echoes in the laws of many nations, where the possibility of what is immutable is more friendly to some victims in legal positivism than if what is legal is based on what is moral. Indeed, what is moral is not necessarily legal[7] and vice versa.
Hart`s legal theory definitively reinforces this assertion. Arguably, the central features of legal theory are to maintain the correct definition of legal theory or concept and to avoid unnecessary equations of the same under the concepts of coercive power and morality. If such a flawed design or misunderstanding of two separate rules occurred, one could imagine the dangerous consequences. In fact, Hart also noted that a misunderstanding of the relationship could cause misunderstandings about the nature of the origin of the law or the intent under which the law was enacted, and necessarily the scope. If these things happen, it would indeed be a law intended for something, but because of false premises or because of the assimilation of moral imperatives to legal systems, the law has become ineffective and will not serve its purpose. There are two minimum requirements for a legal system to exist. First, the need for individuals to jointly comply with the primary rules of obligation and, second, the need for public servants to accept the secondary rules of recognition, modification and competence as standards of official conduct. [13] If these two requirements are not met, the primary rules can only be sufficient to establish a pre-legal form of government.