Hart

Question 1

Why is Hart considered an Analytical Legal Positivist?

Answer 1

Concerned with how legal orders are defined, and primarily uses empirical (factual) study of existing legal systems

BUT there are concessions to natural law theory

Question 2

What is Hart’s concept of law?

Answer 2

Law is the union of primary and secondary rules.
1. Primary: Basic substantive obligations

2. Secondary: Grants ability to change rules and resolve disputes with law, and determine the contents of a legal order

Question 3

What exactly are secondary rules?

Answer 3

1. Rules of change
2. Rules of adjudication
3. Rules of recognition

Question 4

What exactly are rules of recognition?

Answer 4

1. Distinguishes legal rules from non-legal rules
2. Identifies sources of law, basis of the idea of legal obligation of officials

Dworkin’s conventionalism: Validity of law comes from the ACCEPTANCE OF LEGAL OFFICIALS of certain CONVENTIONS about how rules are made, which CONSTITUTE and DISTINGUISH this social practice

Question 5

Why do legal officials adhere to the law?

Answer 5

Rules of recognition: Legal officials find that they have an OBLIGATION to apply legal rules by ACCEPTING them as a standard to abide by and EXPECTING OTHER OFFICIALS to do the same

Question 6

According to Hart, what is the relationship between law and morality?

Answer 6

1. Law and morality are different systems of social rules
2. Morality may make legal system more stable? (“those who…accept the system voluntarily [may not see themselves] as morally bound to do so, though the system will be most stable when they do so.”)

Question 7

According to Hart, why should people obey the law?

Answer 7

That’s not his concern.

Concept of Law: people may obey because of “many different considerations: calculations of long-term interest; disinterested interest in others; an unreflecting inherited or traditional attitude; or the mere wish to do as others do.”

Question 8

What are 3 criticisms of Hart’s theory?

Answer 8

1. Dworkin: Rules of recognition do not exist; legal judgment is based on disagreement and contestation about what the fundamental basis of a legal system is (i.e. more about will of the sovereign/Parliament or protecting human rights?)
2. Alexy: Requires judges to abdicate moral responsibility in making judgments (e.g. consider Nazi law: they all accept it, but it’s still nasty)
3. MacCormick: argues that legal officials must take a ‘critical reflexive attitude’ towards a rule of recognition

Question 9

What are alternate views on Hart’s theory of law?

Answer 9

1. Normative Legal Positivism:
   - - Hart evaluates the value of secondary rules in modernising and maturing legal systems with only primary rules (which he calls primitive)
2. Minimum Content of Natural Law:
   - - People are not completely altruistic and self-sufficient GIANT LAND CRABS, so need guidance from rules and prohibitions to GOVERN people’s behaviours and interrelations and allow them to cooperate
   - - All legal systems have certain BASIC MORAL PRINCIPLES embedded within legal rules
   - - E.g. law is beneficial by providing substantive rights not to be harmed