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Hart positivism - Coggle Diagram

- - - - yet it is at least plausible to argue that a legal system must, to be a legal system, provide sanctions for certain of its rules. So too, a rule of law may be said to exist though enforced or obeyed in only a minority of cases, but this could not be said of a legal system as a whole.
        
        HEAR WE START TO GET THIS APPRECIATION OF THE HUMAN ELEMENT OF THE LAW - IE THE ROLE OF THE SUBJECT IN AIDING IN THE VALIDITY AND CREATION OF WHAT WE DEEM TO BE VALID LAW.
        
        So much for the doctrine in the heyday of its success. Let us turn now to some of the criticisms. Undoubtedly, when Bentham and Austin insisted on the distinction between law as it is and as it ought to be, they had in mind particularlaws the meanings of which were clear and so not in dispute, and they were concerned to argue that such laws, even if morally outrageous, were still laws. It is, however, necessary, in considering the criticisms which later developed, to consider more than those criticisms which were directed to this particular point if we are to get at the root of the dissatisfaction felt; we must also take account of the objection that, even if what the Utilitarians said on this particular point were true, their insistence on it, in a terminology suggesting a general cleavage between what is and ought to be law, obscured the fact
        
        that at other points there is an essential point of contact between the two. So in what follows I shall consider not only criticisms of the particular point which the Utilitarians had in mind, but also the claim that an essential connection between law and morals emerges if we examine how laws, the meanings of which are in dispute, are interpreted and applied in concrete cases; and that this connection emerges again if we widen our point of view and ask, not whether every particular rule of law must satisfy a moral minimum in order to be a law, but whether a system of rules which altogether failed to do this could be a legal system.
    - - These three doctrines constitute the utilitarian tradition in jurisprudence; yet they are distinct doctrines. It is possible to endorse the separation between law and morals and to value analytical inquiries into the meaning of legal concepts and yet think it wrong to conceive of law as essentially a command.
        
        his scheme, despite the points of obvious analogy between a statute and a command, omits some of the most characteristic elements of law. Let me cite a few. It is wrong to think of a legislature (and a fortiori an electorate) with a changing membership, as a group of persons habitually obeyed:
        
        this simple idea is suited only to a monarch sufficiently long-lived for a "habit" to grow up. Even if we waive this point, nothing which legislators do makes law unless they comply with fundamental accepted rules specifying the essential lawmaking procedures. This is true even in a system having a simple unitary constitution like the British. These fundamental accepted rules specifying what the legislature must do to legislate are not commands habitually obeyed, nor can they be expressed as habits of obedience to persons.
        
        They lie at the root of a legal system, and what is most missing in the utilitarian scheme is an analysis of what it is for a social group and its officials to accept such rules. This notion, not that of a command as Austin claimed, is the "key to the science of jurisprudence," or at least one of the keys.
  - - - This statement vs natural law
        
        ral-law theory, however, in all its protean guises, attempts to push the argument much further and to assert that human beings are equally devoted to and united in their conception of aims (the pursuit of knowledge, justice to their fellow men) other than that of survival, and these dictate a further necessary content to a legal system (over and above my humble minimum) without which it would be pointless.
        
        DOES NORMATIVITY PLAY INTO THIS?
        
        These two reasons (or excuses) for talking of a certain overlap between legal and moral standards as necessary and natural, of course, should not satisfy anyone who is really disturbed by the Utilitarian or "positivist" insistence that law and morality are distinct. This is so because a legal system that satisfied these minimum requirements might apply, with the most pedantic impartiality as between the persons affected, laws which were hideously oppressive, and might deny to a vast rightless slave population the minimum benefits of protection from violence and theft.
        
        Normativity is not concerned with just outcome but popular support?
        
        In acknowledging ultimate ends or moral values we are recognizing something as much imposed upon us by the character of the world in which we live, as little a matter of choice, attitude, feeling, emotion as the truth of factual judgments about what is the case. The characteristic moral argument is not one in which the parties are reduced to expressing or kindling feelings or emotions or issuing exhortations or commands to each other but one by which parties come to acknowledge after closer examination and reflection that an initially disputed case falls within the ambit of a vaguely apprehended principle
        
        The only difference which the acceptance of this view of the nature of moral judgments would make would be that the moral iniquity of such laws would be something that could be demonstrated; it would surely follow merely from a statement of what the rule required to be done that the rule was morally wrong and so ought not to be law or conversely that it was morally desirable and ought to be law.
      - and so we can add to the factual statement that all legal systems in fact coincide with morality at such vital points, the statement that this is, in this sense, necessarily so. And why not call it a "natural" necessity
- - - - In such cases it would be generally pointless either to assess the rights and duties of particular persons by reference to the primary rules of a system or to assess the validity of any of its rules by reference to its rules of recognition. To insist on applying a system of rules which had either never actually been effective or had been discarded would, except in special circumstances mentioned below, be as futile as to assess the progress of a game by reference to a scoring rule which had never been accepted or had been discarded.
      - Some writers, who have emphasized the legal ultimacy of the rule of recognition, have expressed this by saying that, whereas the legal validity of other rules of the system can be demonstrated by reference to it, its own validity cannot be demonstrated but is ‘assumed’ or ‘postulated’ or is a ‘hypothesis’. This may, however, be seriously misleading. Statements of legal validity made about particular rules in the day-to-day life of a legal system whether by judges, lawyers, or ordinary citizens do indeed carry with them certain presuppositions. They are internal statements of law expressing the point of view of those who accept the rule of recognition of the system and, as such, leave unstated much that could be stated in external statements of fact about the system. What is thus left unstated forms the normal background or context of statements of legal validity and is thus said to be ‘presupposed’ by them. But it is important to see precisely what these presupposed matters are, and not to obscure their character. They consist of two things. First, a person who seriously asserts the validity of some given rule of law, say a particular statute, himself makes use of a rule of recognition which he accepts as appropriate for identifying the law.
        
        Secondly, it is the case that this rule of recognition, in terms of which he assesses the validity of a particular statute, is not only accepted by him but is the rule of recognition actually accepted and employed in the general operation of the system. If the truth of this presupposition were doubted, it could be established by reference to actual practice: to the way in which courts identify what is to count as law, and to the general acceptance of or acquiescence in these identifications.
        
        We only need the word ‘validity’, and commonly only use it, to answer questions which arise within a system of rules where the status of a rule as a member of the system depends on its satisfying certain criteria provided by the rule of recognition. No such question can arise as to the validity of the very rule of recognition which provides the criteria; it can neither be valid nor invalid but is simply accepted as appropriate for use in this way. To express this simple fact by saying darkly that its validity is ‘assumed but cannot be demonstrated’, is like saying that we assume, but can never demonstrate, that the standard metre bar in Paris which is the ultimate test of the correctness of all measurement in metres, is itself correct.
- - - - if a rule is found in those specific sources it is legal rule and if its not there then it is not legal
      - According to Hart, it is the very fact that practitioners share the ‘rule of recognition’ that constitutes that rule: the ‘rule of recognition’, says Hart, exists by virtue of being accepted as a normative standard and followed. What does Hart mean by that? He means that the ‘rule of recognition’ exists as the test for valid legal rules because people accept it as a test and abide by it: it is, in other words, a conventional standard. Here is an analogy: the meaning of a word is what it is by virtue of its being accepted as such – that is, by virtue of the fact that we all agree that this is its meaning. The meaning of a word is also a conventional standard; it is constituted by conventional agreement. Raban, Ofer. Modern Legal Theory and Judicial Impartiality, Taylor & Francis Group, 2003. ProQuest Ebook Central, http://ebookcentral.proquest.com/lib/uts/detail.action?docID=220282. Created from uts on 2024-09-05 23:34:02.
        
        rule: Hart thinks that judicial decisions, for example, may lay down a precedent without explicitly articulating its governing rule. 8 In such cases, the person seeking the legal rule must extract the rule from the precedent before her (she must grasp the rule laid down by the precedent). Yet, ultimately, all rules of law are linguistically formulated rules using general classifications: Hart says that ‘all rules involve recognising or classifying particular cases as instances of general terms’; rules of law ‘refer to classes of persons, and to classes of acts, thing, circumstance; and [the law’s] successful operation … depends on a widely diffused capacity to recognise particular acts, things, and circumstances as instances of the general classification which the law makes’. 9 In short, the law consists of rules, found in certain recognised sources identified by the ‘rule of recognition’; and these rules divide the world into classes of ‘acts, things, or circumstances’ using general words
        Raban, Ofer. Modern Legal Theory and Judicial Impartiality, Taylor & Francis Group :<3:
        
        What both Bentham and Austin were anxious to assert were the following two simple things: first, in the absence of an expressed constitutional or legal provision, it could not follow from the mere fact that a rule violated standards of morality that it was not a rule of law; and, conversely, it could not follow from the mere fact that a rule was morally desirable that it was a rule of law.
    - - Human invention and natural processes continually throw up such variants on the familiar, and if we are to say that these ranges of facts do or do not fall under existing rules, then the classifier must make a decision which is not dictated to him, for the facts and phenomena to which we fit our words and apply our rules are as it were dumb
        
        The toy automobile cannot speak up and say, "I am a vehicle for the purpose of this legal rule," nor can the roller skates chorus, "We are not a vehicle." Fact situations do not await us neatly labeled, creased, and folded, nor is their legal classification written on them to be simply read off by the judge. Instead, in applying legal rules, someone must take the responsibility of deciding that words do or do not cover some case in hand with all the practical consequences involved in this decision.
        
        The toy automobile cannot speak up and say, "I am a vehicle for the purpose of this legal rule," nor can the roller skates chorus, "We are not a vehicle." Fact situations do not await us neatly labeled, creased, and folded, nor is their legal classification written on them to be simply read off by the judge. Instead, in applying legal rules, someone must take the responsibility of deciding that words do or do not cover some case in hand with all the practical consequences involved in this decision.
        
        whether the relevant object is a ‘vehicle’ (say, the object is a motorised wheelchair). When such cases occur in the application of legal rules, we shall have to go beyond what the law says: we shall have to appeal to considerations external to the law in deciding the applicability of the rule, and no answer will be correct or incorrect as far as the law or existing legal requirements are concerned.
      - His conclusion is that the foundation of a legal system is not coercive power, but certain "fundamental accepted rules specifying the essential lawmaking procedures." :<3:
        
        Fuller
        
        I found Professor Hart leaving completely untouched the nature of the fundamental rules that make law itself possible, and turning his attention instead to what he considers a confusion of thought on the part of the critics of positivism. Leaving out of account his discussion of analytical jurisprudence, his argument runs something as follows
        
        Over and over again he teeters on the edge of an abandonment of the command theory in favor of what Professor Hart has described as a view that discerns the foundations of a legal order in "certain fundamental accepted rules specifying the essential lawmaking procedures." Yet he never takes the plunge. He does not take it because he had a sure insight that it would forfeit the black-andwhite distinction between law and morality that was the whole object of his Lectures-
        
        It is a symbol that embodies the positivist quest for some clear and unambiguous test of law, for some clean, sharp line that will divide the rules which owe their validity to their source and those which owe their validity to acceptance and intrinsic appeal.
    - - One of the principal lessons of The Concept of Law is that legal systems are not only comprised of rules but are founded on them as well. In sharp contrast to Bentham and Austin, who insisted that the sovereign makes all the rules, Hart argued that the rules make the sovereign.
        For as Hart painstakingly showed, we cannot account for the way in which we talk and think about the law — that is, as an institution that persists over time despite the turnover of officials, imposes duties and confers powers, enjoys supremacy over other kinds of practices, resolves doubts and disagreements about what is to be done in a community, and so on — without supposing that it is, at bottom, regulated by what he called the secondary rules of recognition, change, and adjudication.
        
        The most salient property of the rule of recognition is that it is a secondary rule. It is a rule about the validity of other rules (i.e., the "primary" rules). The rule of recognition is also a social rule. It is "social" in two different senses.
        
        First, the rule of recognition exists and has the content it does because, and only because, of certain social facts. In particular, its existence and content are determined by the fact that members of a group take the internal point of view towards a standard of conduct and use it to evaluate the validity of norms and behavior.
    - - For the most part the rule of recognition is not stated, but its existence is shown in the way in which particular rules are identified, either by courts or other officials or private persons or their advisers. There is, of course, a difference in the use made by courts of the criteria provided by the rule and the use of them by others: for when courts reach a particular conclusion on the footing that a particular rule has been correctly identified as law, what they say has a special authoritative status conferred on it by other rules.
        
        In this respect, as in many others, the rule of recognition of a legal system is like the scoring rule of a game. In the course of the game the general rule defining the activities which constitute scoring (runs, goals, &c.) is seldom formulated; instead it is used by officials and players in identifying the particular phases
        
        Here too, the declarations of officials (umpire or scorer) have a special authoritative status attributed to them by other rules. Further, in both cases there is the possibility of a conflict between these authoritative applications of the rule and the general understanding of what the rule plainly requires according to its terms. This, as we shall see later, is a complication which must be catered for in any account of what it is for a system of rules of this sort to exist.
        
        The use of unstated rules of recognition, by courts and others, in identifying particular rules of the system is characteristic of the internal point of view. Those who use them in this way thereby manifest their own acceptance of them as guiding rules and with this attitude there goes a characteristic vocabulary different from the natural expressions of the external point of view.
        
        Perhaps the simplest of these is the expression, ‘It is the law that ...’, which we may find on the lips not only of judges, but of ordinary men living under a legal system, when they identify a given rule of the system. This, like the expression ‘Out’ or ‘Goal’, is the language of one assessing a situation by reference to rules which he in common with others acknowledges as appropriate for this purpose