Our last post introduced very briefly some of the key authors in recent(ish in some cases) jurisprudence-i.e. legal theory and political theory.
Jurisprudence: key authors
H.L.A. Hart was an English legal and political philosopher, one of the main figures in legal and political sciences whose works are still being discussed.
In the following lines, a very succinct structure of his masterpiece The Concept of Law to guide the reader. In the weeks to come, the posts will introduce each section in more detail.
The Concept of Law (CoL)
What is Law? CoL 1-6.
• Three persistent questions about the nature of law. CoL 6-13.
a. what is the relationship between law and coercion?
b. what is the relationship between law and morality?
c. what is the relationship between law and rules?
Hart v. Austin.
• “We shall follow Austin in an attempt to build up from it the idea of law. We shall not, however, hope, as Austin did, for success, but rather to learn from our failure.” CoL 20.
• “General orders backed by threats given by one habitually obeyed” (Austin, summarised by Hart, CoL 24).
• “There are important classes of law where this analogy with orders backed by threats altogether fails.” CoL 27.
• “Law without sanctions is perfectly conceivable.” CoL 38.
• Austin’s model does not account for the fact that lawmakers are bound by the laws they make. CoL 42-44.
• Unlike the orders of gunmen, laws typically apply to those who enact them and not merely to others. CoL 79.
• Austin’s model fails to explain the continuity of obedience though the transition from one sovereign to another. “it is characteristic of a legal system…to secure the uninterrupted continuity of law-making power.” CoL 53-54.
• Austin’s model also fails to account for the persistence of laws enacted long ago. “How can law made by an earlier legislator, long dead, still, be law for a society that cannot be said to habitually obey him?” CoL 62. “rules…which may in a sense be timeless.” CoL 62.
• See CoL 70-71 and 79 for a summary of the problems Hart sees in Austin’s conception of sovereignty and overall theory, respectively.
Being obliged and having an obligation.
- Hart distinguishes “being obliged” from “having an obligation“. CoL 82-83.
• “Being obliged” means being compelled to do or forbear doing a certain act from fear of punishment. “Having an obligation” means being required to do or forbear doing something by an authoritative set of norms.
Primary rules and secondary rules.
- Hart distinguishes between: primary rules and secondary rules. CoL 27-33 and 94-97.
• Primary rules relate to people’s conduct and are generally duty-imposing rules. They require people to do or to abstain from doing certain acts or omissions. e.g. don’t commit murder.
• Secondary rules relate to other rules, either primary or secondary, and are power-conferring rules.
• There are three types of secondary rules: a) rule of recognition provides for authoritative ascertainment of what the other rules are; b) rules of change confer public power to modify existing rules and private power to modify existing entitlements; c) rules of adjudication allow the authoritative ascertainment of rule violations and the imposition of authoritative sanctions.
Rule of recognition.
- CoL 100-110; in partic. 107. For a reply to Dworkin see CoL 263.
• “The sense in which the rule of recognition is the ultimate rule of a system is best understood if we follow a very familiar chain of legal reasoning.” CoL 107.
• There is a limit, inherent in the nature of language, to the guidance which general language can provide…Natural languages like English are…irreducibly open-textured. CoL 126-128.
• Even within the area of open texture, rules still provide standards determinate enough to limit though not exclude judicial discretion. CoL 147.
• Reply to Dworkin. CoL 272-273.
The relationship between law and morality.
• Positivism and the minimum content of natural law. See in partic. CoL 194-197.