John T. Noonan, Jr.; THE CONCEPT OF LAW. By H. L. A. Hart. Jurisprudence and Philosophy of Law. Issue Section: This content is only available as a PDF. 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 . T HIS ARTICLE is a critical exposition of The Concept of Law,' a book by H. L. A. Hart, Professor of Jurisprudence at the Uni- versity of Oxford. Published in
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PDF | On Mar 1, , M.D. McCubbins and others published Concepts of Law. The Concept of fruchbabefonbei.cf - Download as PDF File .pdf), Text File .txt) or read online. Author: Hart. The Concept of Law (ISBN ) is the most famous work of the legal philosopher . Print/export. Create a book · Download as PDF · Printable version .
Before the judicial review of his case by the Appeal Court had been concluded, Mr Condliff re-submitted his individual funding request application with additional information, and his PCT have agreed that the new clinical information provided means he now meets the criteria for exceptionally.
As a result, his case is unlikely to be expedited for consideration by the ECtHR. In the meanwhile, the English judiciary is clear; in the absence of direct clinical implications, social factors do not have to be considered in the assessment of exceptional circumstances. Consideration of clinical factors in determining exceptionality Consideration of clinical factors emerges from judicial reviews to date as less controversial, although there is little guidance as to how these should be prioritised.
Her claim for judicial review was dismissed, despite an appeal. In Rogers v Swindon PCT, 92 it was acknowledged that the PCT's Exceptional Circumstances Urgent Review panel had considered whether prognosis might be a factor in determining exceptionality and concluded that it could not.
This was not disputed in the course of the appeal. Linda Gordon was a non-smoker, who developed lung cancer. She initially raised private funds to finance the drug erlotinib before applying, unsuccessfully, to her local PCT for continued funding.
Although duration of survival was not considered to be applicable to the claimant, Ouseley J acknowledged that there may be instances where the need for short-term survival constitutes exceptional circumstances. The example, advanced by counsel for the defence, was when someone had to make arrangements for the care of children.
Mitting J highlighted the possibility that treatment with bevacizumab, the drug at the centre of the judicial review, might shrink Victoria Otley's liver metastases sufficiently to enable a potentially curative resection.
Exceptional in comparison to whom? A more detailed analysis of judicial review of PCT decision making in exceptional circumstances elicits several further principles with respect to determining exceptionality.
One of the earliest to emerge was that the index case should be compared against the cohort of people eligible for treatment when assessing exceptionality. The latter judicial review suggested that the index case cannot be deemed unexceptional simply because he is representative of a group of patients. As a clinician, this leaves one perplexed. Exactly how different from his peers does a patient need to be for it to be worthwhile pursuing funding on the basis of exceptionality? Does an increased likelihood of benefit from treatment make one exceptional?
Demonstrating features which suggest the index case is more likely to benefit from treatment than others does not invariably make the index case exceptional in the eyes of the judiciary. Erlotinib, when used for non-small cell lung cancer, for example, has been shown in clinical trials to be more effective in those of Asian origin, lifelong non-smokers, and those with adenocarcinoma on histological examination.
The inconsistency in the way this aspect was considered in these two cases is particularly incoherent from a medical perspective, as gaining more benefit from a treatment than might normally be expected is one of the few clinical justifications for treating a patient as an exceptional case.
Considering exceptionality in the round One of the few very clear principles to emerge from judicial review of decision making by PCTs in exceptional circumstances is that all features that might contribute to the determination of exceptionality should be considered in their totality, rather than individually.
These included that she had metastatic renal cancer, that she had a history of breast cancer, which made her ineligible for entry into a clinical trial through which she may have been able to obtain the treatment she sought, and a history of mental health problems which were exacerbated by the treatment initially used to treat her renal cancer. In addition, she suffered from other side effects which prevented administration of the full dose and was the main carer for her husband who suffered with multiple health problems.
He does not have to meet a standard of uniqueness. If we take the five cancer patients who sought judicial review of the funding decisions made by their respective PCTs, Ann Rogers, Linda Gordon, Victoria Otley, Jean Murphy, and Colin Ross, and apply the criteria outlined above to them, using the information available to us in the court reports about their circumstances, the manifest lack of objectivity in the concepts that emerges, aside from the suggestion that social circumstances can be disregarded, means that each individual could be determined to be both exceptional and unexceptional, depending on how the criteria are interpreted.
It is no wonder that PCTs find themselves in a conundrum when attempting to establish the existence, or otherwise, of exceptional circumstances and reach decisions that will withstand the scrutiny of the courts. Patients are often dependent on the Internet to obtain information about new drugs and many are not aware of the existence of the judicial review process, or the availability of pro bono legal assistance for those not eligible for legal aid.
An attempt at uniformity The NHS Confederation suggests the following definition of exceptionality to aid PCTs in understanding the meaning of exceptionality within the individual funding request process: The patient is significantly different to the general population of patients with the condition in question and the patient is likely to gain significantly more benefit from the intervention than might normally be expected for patients with that condition. The latter half of the definition is consistent with Otley v Barking and Dagenham PCT, which suggested that increased likelihood of benefitting from a drug was a relevant factor.
This case was subsequent to Gordon v Bromley PCT when Ouseley J passed comment that possessing features which increased the likelihood of benefit did not inevitably make her exceptional.
As judicial review is essentially an assessment of procedural, rather than substantive correctness, prima facie it appears that there could be more than one lawful answer to a policy question. Although his ultimate judgement in this case was subsequently overturned by Clarke MR, Bean J raises an interesting possibility.
If there can be more than one lawful answer to a policy question, how would this apply to the funding of cancer drugs in exceptional circumstances? Why should the same person potentially be treated differently in two PCTs?
One possibility is that X might appear exceptional in PCT A when compared with the cohort of patients with the same disease living in that region, but not when compared with the cohort of patients in PCT B. Thus, that X could be treated differently is based on the evidence that there are significant differences between two groups with the same disease but who live in different PCT regions.
The existence of such factors is not implausible, and may relate, for example, to the genetics of the local population. These factors would seem most credible when the number of patients in each cohort is small; i.
However, if the number of patients in each cohort is large, for example those with breast cancer, then it would seem unlikely that there would significant differences between the populations with the disease in PCT A and B. Under these circumstances, if Patient X is considered exceptional against the comparator pool in PCT A, she should, logically, also be considered exceptional against the comparator pool in PCT B, which will consist of like patients to the comparator pool in PCT A.
So, if Bean J is right, and the cohort against which exceptionality should be measured is those patients with the same condition, it follows that, at least with respect to determining exceptionality for the funding of cancer drugs, there should only be one policy answer to the policy question; a patient who is considered exceptional within one PCT should be considered exceptional within every PCT.
This deduction presents a strong case for the determination of exceptionality on a national level, if the concept is to be used as the basis on which to allocate funding. As discussed earlier in Section II, the principle that it must be possible to envisage circumstances in which a drug might be funded when declining applications on the basis of exceptional circumstances was established in R v North West Lancashire Health Authority and re-affirmed in Rogers v Swindon PCT.
In response to the question of whether Bromley PCT had imposed a blanket ban on the provision of erlotinib, Ouseley J suggested that: The claimant might well go too far in saying that an exception must be capable of being envisaged for every drug in order for refusal in an individual case to be lawful.
Are there some drugs and therapies for which there is so little evidence of benefit that it would be preposterous for a PCT to be expected to envisage exceptional circumstances when they might be funded? It may be that in the future, there will be licensed cancer drugs which are so expensive, and with such low response rates, which even when they do work provide very limited extension of life, accompanied by such significant side effects, that it would be reasonable to deny provision without being able to envisage exceptions where they would be funded.
If resource constraints were not an issue, it could be argued that little would be lost by trying drugs even with low effectiveness. However, in a social insurance health system, every treatment carries an opportunity cost. Providing an expensive cancer treatment with low effectiveness means that another patient, and possibly many other patients, will be deprived of treatments with better effectiveness.
It is neither a rational or ethical use of limited resources to spend money on very high cost, low benefit, treatments.
Whilst it would be an appropriate and logical action for a self-interested patient approaching the end of life, when funding is provided by a social insurance system, it makes no sense from a societal perspective. Furthermore, the money and time spent by PCTs on defensive legal action cannot be invested in improving clinical care. The process of applying for funding on the basis of exceptional circumstances creates unrealistic expectations for patients, fuelled by media hype and indirect marketing by pharmaceutical companies.
The Cancer Drugs Fund has widely increased access to oncological treatments, although evidence of regional variations in access is already beginning to emerge, and there has been no evaluation of the opportunity cost to other health services of financing the Fund. With the introduction of value-based drug pricing, planned for January , and Clinical Commissioning Groups, there is a risk that access to cancer drugs could become an even bigger postcode lottery.
Unlike PCTs, Clinical Commissioning Groups will not operate at arm's length from patients, and GPs may be more vulnerable not only to pressure from patients and their families, but also to the external influences which arise in funding requests on the basis of exceptionality, including those from the media, patient support groups, and the pharmaceutical industry. For example, if there is reason to believe, they may benefit more from a treatment than usually expected, or if they suffer intolerable side effects from standard treatment.
From a medical perspective, these patients could be considered exceptional. The restructuring of the NHS presents a perfect opportunity to start assessing these patients on a national, or at least supra-regional basis, to enable standardisation of the concept of exceptionality and consistency in the determination of exceptionality. A nationally ring fenced pot of money to fund those patients deemed to be exceptional would also prevent destabilisation of the budgets of the proposed new Clinical Commissioning Groups from the need to find funds to finance expensive treatments at short notice.
Moral principles are what they are due to their content, and their validity is purely content dependent. Legal principles, on the other hand, gain their validity from a combination of source-based and content-based considerations.
The validity of a legal principle then, derives, from a combination of facts and moral considerations. The facts concern the past legal decisions which have taken place in the relevant domain, and the considerations of morals and politics concern the ways in which those past decisions can best be accounted for by the correct moral principles. Needless to say, if such an account of legal principles is correct, the Separation Thesis can no longer be maintained.
But many legal philosophers doubt that there are legal principles of the kind Dworkin envisaged. There is an alternative, more natural way to account for the distinction between rules and principles in the law: the relevant difference concerns the level of generality, or vagueness, of the norm-act prescribed by the pertinent legal norm. Legal norms can be more or less general, or vague, in their definition of the norm-act prescribed by the rule, and the more general or vague they are, the more they tend to have those quasi-logical features Dworkin attributes to principles.
More importantly, notice that if you make the legal validity of norms, such as legal principles, depend on moral argument, you allow for the possibility that an entire legal community may get its laws wrong.
Any moral mistake in the reasoning leading to a legal principle might render the conclusion about the principle unsound, and the principle itself thus not legally valid.
Since there is nothing to prevent judges and other legal actors from making moral mistakes, there is nothing to prevent a result whereby an entire legal community, and for a long time, gets its laws wrong Marmor , chapter 4. Perhaps Dworkin would have not found this problematic, but others might; the idea that an entire legal community can be systematically mistaken about its own laws might strike legal theorists as deeply problematic.
The Concept of Law.pdf
The main argument consists of two main premises. The first thesis maintains that determining what the law requires in each and every particular case necessarily involves interpretative reasoning.
Now, according to the second premise, interpretation always involves evaluative considerations. More precisely, perhaps, interpretation is neither purely a matter of determining facts, nor is it a matter of evaluative judgment per se, but an inseparable mixture of both. Clearly enough, one who accepts both these theses must conclude that the Separation Thesis is fundamentally flawed.
If Dworkin is correct about both theses, it surely follows that determining what the law requires always involves evaluative considerations. Some legal philosophers have argued that legal reasoning is not as thoroughly interpretative as Dworkin assumes. Interpretation, according to this view, long maintained by H.
Hart , chapter 7 , is an exception to the standard understanding of language and communication, rendered necessary only when the law is, for some reason, unclear.
However, in most standard instances, the law can simply be understood, and applied, without the mediation of interpretation Marmor , chapter 6.
Note, however, that although both Dworkin and inclusive legal positivists share the view that morality and legal validity are closely related, they differ on the grounds of this relationship. Inclusive positivism, on the other hand, maintains that such a dependence of legal validity on moral considerations is a contingent matter; it does not derive from the nature of law or of legal reasoning as such.
Inclusive positivists accept the Social Thesis; they claim that moral considerations affect legal validity only in those cases where this is dictated by the social rules or conventions which happen to prevail in a given legal system. Legal validity, according to this view, is entirely dependent on the conventionally recognized factual sources of law.
It may be worth noting that those legal theories maintaining that legal validity partly depends on moral considerations must also share a certain view about the nature of morality.
Namely, they must hold an objective stance with respect to the nature of moral values. Otherwise, if moral values are not objective and legality depends on morality, legality would also be rendered subjective, posing serious problems for the question of how to identify what the law is.
Some legal theories, however, do insist on the subjectivity of moral judgements, thus embracing the skeptical conclusions that follow about the nature of law. According to these skeptical theories, law is, indeed, profoundly dependent on morality, but, as these theorists assume that morality is entirely subjective, it only demonstrates how the law is also profoundly subjective, always up for grabs, so to speak.
This skeptical approach, fashionable in so-called post-modernist literature, crucially depends on a subjectivist theory of values, which is rarely articulated in this literature in any sophisticated way. This conspicuous feature of law made it very tempting for some philosophers to assume that the normativity of law resides in its coercive aspect. Even within the legal positivist tradition, however, the coercive aspect of the law has given rise to fierce controversies.
Early legal positivists, such as Bentham and Austin, maintained that coercion is an essential feature of law, distinguishing it from other normative domains.
Legal positivists in the 20th century have tended to deny this, claiming that coercion is neither essential to law, nor, actually, pivotal to the fulfillment of its functions in society. How to understand these claims about the essence of law, and the question of whether these claims are about metaphysics or something else, perhaps about morality, will be discussed in section 2.
John Austin famously maintained that each and every legal norm, as such, must comprise a threat backed by sanction. In a second, though not less problematic sense, the intimate connection between the law and the threat of sanctions is a thesis about the normativity of law. In addition to this particular controversy, there is the further question, concerning the relative importance of sanctions for the ability of law to fulfill its social functions.
Twentieth century legal positivists, like H. Hart and Joseph Raz, deny this, maintaining that the coercive aspect of law is much more marginal than their predecessors assumed. Once again, the controversy here is actually twofold: is coercion essential to what the law does?
And even if it is not deemed essential, how important it is, compared with the other functions law fulfills in our lives? This emphasis on the reason-giving function of rules is surely correct, but perhaps not enough. Supporters of the predictive account could claim that it only begs the further question of why people should regard the rules of law as reasons or justifications for actions.
If it is, for example, only because the law happens to be an efficient sanction-provider, then the predictive model of the normativity of law may turn out to be correct after all. The extent to which law can actually guide behavior by providing its subjects with reasons for action has been questioned by a very influential group of legal scholars in the first half of the 20th century, called the Legal Realism school.
American Legal Realists claimed that our ability to predict the outcomes of legal cases on the basis of the rules of law is rather limited. In the more difficult cases which tend to be adjudicated in the appellate courts, legal rules, by themselves, are radically indeterminate as to the outcome of the cases. The Legal Realists thought that lawyers who are interested in the predictive question of what the courts will actually decide in difficult cases need to engage in sociological and psychological research, striving to develop theoretical tools that would enable us to predict legal outcomes.
Thus Legal Realism was mainly an attempt to introduce the social sciences into the domain of jurisprudence for predictive purposes. To what extent this scientific project succeeded is a matter of controversy. Be this as it may, Legal Realism paid very little attention to the question of the normativity of law, that is, to the question of how the law does guide behavior in those cases in which it seems to be determinate enough.
The law, Raz claims, is a de facto authority. However, it is also essential to law that it must be held to claim legitimate authority. Any particular legal system may fail, of course, in its fulfillment of this claim.
But law is the kind of institution which necessarily claims to be a legitimate authority. According to Raz, the essential role of authorities in our practical reasoning is to mediate between the putative subjects of the authority and the right reasons which apply to them in the relevant circumstances.
An authority is legitimate if and only if it helps its putative subjects to comply better with the right reasons relevant to their actions—i. For example, there may be many reasons that bear on the question of how fast to drive on a particular road—the amount of pedestrian traffic, impending turns in the road, etc. The legitimacy of the legal speed limit would thus be derived from the way in which it aids people in acting in better compliance with the balance of the right reasons.
Now, it follows that for something to be able to claim legitimate authority, it must be of the kind of thing capable of claiming it, namely, capable of fulfilling such a mediating role.
What kinds of things can claim legitimate authority? There are at least two such features necessary for authority-capacity: First, for something to be able to claim legitimate authority, it must be the case that its directives are identifiable as authoritative directives, without the necessity of relying on those same reasons which the authoritative directive replaces.
If this condition is not met, namely, if it is impossible to identify the authoritative directive as such without relying on those same reasons the authority was meant to rely on, then the authority could not fulfill its essential, mediating role. In short, it could not make the practical difference it is there to make. Note that this argument does not concern the efficacy of authorities.
The point is not that unless authoritative directives can be recognized as such, authorities could not function effectively. The argument is based on the rationale of authorities within our practical reasoning. In other words, it is pointless to have an authoritative directive if, in order to discover what the directive is, you have to engage in the same reasoning that reliance on the directive is supposed to replace.
Therefore a norm is legally valid i. This challenge, and the controversies it gave rise to, form one of the main topics discussed in contemporary general jurisprudence.
Explaining the rationale of legal authority, however, is not the only component of a theory about the normativity of law. If we hold the legal positivist thesis that law is essentially founded on social conventions, another important question arises here: how can a conventional practice give rise to reasons for action and, in particular, to obligations?
Some legal philosophers claimed that conventional rules cannot, by themselves, give rise to obligations. The debate here is partly about the conventional nature of the rules of recognition, and partly about the ways in which conventions can figure in our reasons for action. According to one influential theory, inspired by David Lewis conventional rules emerge as solutions to large-scale and recurrent coordination problems. If the rules of recognition are, indeed, of such a coordination kind, it is relatively easy to explain how they may give rise to obligations.
Coordination conventions would be obligatory if the norm subjects have an obligation to solve the coordination problem which initially gave rise to the emergence of the relevant convention.
It is doubtful, however, that the conventions at the foundations of law are of a coordinative kind. In certain respects the law may be more like a structured game, or an artistic genre, which are actually constituted by social conventions. Such constitutive conventions are not explicable as solutions to some pre-existing recurrent coordination problem.
The conventional rules constituting the game of chess, for example, are not there to solve a coordination problem between potential players. Antecedent to the game of chess, there was no particular coordination problem to solve.
The conventional rules of chess constitute the game itself as a kind of social activity people would find worthwhile engaging in. The constitutive conventions partly constitute the values inherent in the emergent social practice. Such values, however, are only there for those who care to see them. Constitutive conventions, by themselves, cannot ground an obligation to engage in the practice they constitute. From a moral point of view, the rules of recognition, by themselves, cannot be regarded as sources of obligation to follow the law.
Whether judges, or anybody else, should or should not respect the rules of recognition of a legal system, is ultimately a moral issue, that can only be resolved by moral arguments concerning the age old issue of political obligation. And this is more generally so: the existence of a social practice, in itself, does not provide anyone with an obligation to engage in the practice.
The rules of recognition only define what the practice is, and they can say nothing on the question of whether one should or should not engage in it. But of course, once one does engage in the practice, playing the role of judge or some other legal official, as it were, there are legal obligations defined by the rules of the game.
In other words, there is nothing special in the idea of a legal obligation to follow the rules of recognition. But again, the constitutive rules of soccer cannot settle for anyone the question of whether they should play soccer or not.
Similarly, the rules of recognition cannot settle for the judge, or anyone else for that matter, whether they should play by the rules of law, or not. They only tell us what the law is. Unlike chess or soccer, however, the law may well be a kind of game that people have an obligation to play, as it were. But if there is such an obligation, it must emerge from external, moral, considerations, that is, from a general moral obligation to obey the law. The complex question of whether there is such a general obligation to obey the law, and whether it depends on certain features of the relevant legal system, is extensively discussed in the literature on political obligation.
A complete theory about the normativity of law must encompass these moral issues as well.
See the entries on political obligation and legal obligation. Recent challenges to general jurisprudence, and particularly to legal positivism, have taken an interesting methodological turn. These, and other resultant methodological challenges to traditional general jurisprudence are taken up in the next section.
The Methodology of Jurisprudence When it comes to the methodology of jurisprudence, we find two main issues. While one is not directly concerned with normativity, the second is. The first asks about the aims and success criteria for philosophical theories about the nature of law: What is the target that first-order theories of law aim to capture, and when do they succeed in doing so?
The second asks about the role of evaluation in jurisprudential methodology: Are first-order legal theories inherently or necessarily evaluative or can they be purely descriptive?
Each of these questions will be discussed in turn. In taking a stand on what the proper target of a first-order legal theory is, one incurs a number of other methodological commitments. These include adopting a view about when such theories are successful, taking a stand on what sort of data such theories aim to systematize and explain, and determining what sorts of arguments are legitimately used in deciding between one of these theories and its competitors.
There are four main families of views on this question. One view takes jurisprudence to be a form of conceptual analysis, which is to say that theories of law aim to provide an account of some concept of law. A second sort of view adopts a more skeptical stance towards the methodology of conceptual analysis and takes theories of law to be in the business of offering a reductive explanation of law itself, not some concept of it.
Third, the prescriptive view takes it that the aim of a theory of law is to specify the notion of law that it would be most desirable for us to adopt. In what follows, each of these four views, as well as some of the main issues they face, will be discussed in more depth. In their simplest form, such intuitions can be thought of as judgments about whether the relevant concept does or does not apply to particular cases. Accordingly, on this sort of view, a theory of law aims to provide an account of the conditions under which the target concept of law or one of its cognates applies.
The idea is that the theorist starts with a putative set of criteria for the correct application of the target concept, and then she tests this account against her intuitions about that concept.
The Concept of Law is an analysis of the relation between law, coercion, and morality, and it is an attempt to clarify the question whether all laws may be properly conceptualized as coercive orders or as moral commands. Hart says that there is no logically necessary connection between law and coercion or between law and morality. He explains that to classify all laws as coercive orders or as moral commands is to oversimplify the relation between law, coercion, and morality. He also explains that to conceptualize all laws as coercive orders or as moral commands is to impose a misleading appearance of uniformity on different kinds of laws and on different kinds of social functions which laws may perform.
He argues that to describe all laws as coercive orders is to mischaracterize the purpose and function of some laws and is to misunderstand their content, mode of origin, and range of application.
Laws are rules that may forbid individuals to perform various kinds of actions or that may impose various obligations on individuals.
Laws may require individuals to undergo punishment for injuring other individuals. They may also specify how contracts are to be arranged and how official documents are to be created. They may also specify how legislatures are to be assembled and how courts are to function. They may specify how new laws are to be enacted and how old laws are to be changed.
The Concept of Law
They may exert coercive power over individuals by imposing penalties on those individuals who do not comply with various kinds of duties or obligations. However, not all laws may be regarded as coercive orders, because some laws may confer powers or privileges on individuals without imposing duties or obligations on them. Hart criticizes the concept of law that is formulated by John Austin in The Province of Jurisprudence Determined and that proposes that all laws are commands of a legally unlimited sovereign.
Austin claims that all laws are coercive orders that impose duties or obligations on individuals. Hart says, however, that laws may differ from the commands of a sovereign, because they may apply to those individuals who enact them and not merely to other individuals.
Laws may also differ from coercive orders in that they may not necessarily impose duties or obligations but may instead confer powers or privileges.
Laws that impose duties or obligations on individuals are described by Hart as "primary rules of obligation. Secondary rules may be necessary in order to allow legislators to make changes in the primary rules if the primary rules are found to be defective or inadequate. Secondary rules may also be necessary in order to enable courts to resolve disputes over the interpretation and application of the primary rules.
The secondary rules of alegal system may thus include 1 rules of recognition, 2 rules of change, and 3 rules of adjudication. In order for the primary rules of a legal system to function effectively, the rules must be sufficiently clear and intelligible to be understood by those individuals to whom they apply. If the primary rules are not sufficiently clear or intelligible, then there may be uncertainty about the obligations which have been imposed on individuals.
Vagueness or ambiguity in the secondary rules of a legal system may also cause uncertainty as to whether powers have been conferred on individuals in accordance with statutory requirements or may cause uncertainty as to whether legislators have the authority to change laws. Vagueness or ambiguity in the secondary rules of a legal system may also cause uncertainty as to whether courts have jurisdiction over disputes concerning the interpretation and application of laws.
Primary rules of obligation are not in themselves sufficient to establish a system of laws that can be formally recognized, changed, or adjudicated, says Hart. Primary rules must be combined with secondary rules in order to advance from the pre-legal to the legal stage of determination.
A legal system may thus be established by a union of primary and secondary rules although Hart does not claim that this union is the only valid criterion of a legal system or that a legal system must be described in these terms in order to be properly defined. Hart distinguishes between the "external" and "internal" points of view with respect to how the rules of a legal system may be described or evaluated.
The external point of view is that of an observer who does not necessarily have to accept the rules of the legal system. The external observer may be able to evaluate the extent to which the rules of the legal system produce a regular pattern of conduct on the part of individuals to whom the rules apply.
The internal point of view, on the other hand, is that of individuals who are governed by the rules of the legal system and who accept these rules as standards of conduct. The "external" aspect of rules may be evident in the regular pattern of conduct which may occur among a group of individuals.
The "internal" aspect of rules distinguishes rules from habits, in that habits may be viewed as regular patterns of conduct but are not usually viewed as standards of conduct. The external aspect of rules may in some cases enable us to predict the conduct of individuals, but we may have to consider the 'internal' aspect of rules in order to interpret or explain the conduct of individuals. Hart argues that the foundations of a legal system do not consist, as Austin claims, of habits of obedience to a legally unlimited sovereign, but instead consist of adherence to, or acceptance of, an ultimate rule of recognition by which the validity of any primary or secondary rule may be evaluated.
There are two minimum requirements which must be satisfied in order for a legal system to exist: 1 private citizens must generally obey the primary rules of obligation, and 2 public officials must accept the secondary rules of recognition, change, and adjudication as standards of official conduct. Moral and legal rules may overlap, because moral and legal obligation may be similar in some situations.
However, moral and legal obligation may also differ in some situations. Moral and legal rules may apply to similar aspects of conduct, such as the obligation to be honest and truthful or the obligation to respect the rights of other individuals.
However, moral rules cannot always be changed in the same way that legal rules can be changed. According to Hart, there is no necessary logical connection between the content of law and morality, and that the existence of legal rights and duties may be devoid of any moral justification.
Dworkin rejects the concept of law as acceptance of conventional patterns of recognition, and describes law not merely as a descriptive concept but as an interpretive concept which combines jurisprudence and adjudication. Hart defines legal positivism as the theory that there is no logically necessary connection between law and morality. However, he describes his own viewpoint as a "soft positivism," because he admits that rules of recognition may consider the compatibility or incompatibility of a rule with moral values as a criterion of the rules legal validity.
Legal positivism may disagree with theories of natural law, which assert that civil laws must be based on moral laws in order for society to be properly governed.
Theories of natural law may also assert that there are moral laws which are universal and which are discoverable by reason. Thus, they may fail to recognize the difference between descriptive and prescriptive laws. Laws that describe physical or social phenomena may differ in form and content from laws which prescribe proper moral conduct. Hart criticizes both formalism and rule-scepticism as methods of evaluating the importance of rules as structural elements of a legal system.
Formalism may rely on a rigid adherence to general rules of conduct in order to decide which action should be performed in a particular situation. On the other hand, rule-scepticism may not rely on any general rule of conduct in order to decide which action should be performed in a particular situation. Formalism may produce such inflexibility in the rules of a legal system that the rules are not adaptable to particular cases.
Rule-scepticism may produce such uncertainty in the application of the rules of a legal system that every case has to be adjudicated.Some argument would be needed if one is to endorse the opposite conclusion. A command means to exercise authority over men, NOT power to inflict harm, and though it may be combines with threats of harm in case of non-compliance, a command is primarily an appeal not to fear but to respect authority. Any attempt to change these is to be considered ultra vires, and declared legally invalid by the courts.
However, it is important to look back and review the lessons we can learn from the past. Nonetheless, this view of concepts faces familiar objections.
The Concept of Law.pdf
To avoid confusion, the question we are concerned with here must be clarified in several ways. Primary rules are rules, or laws, that govern general societal conduct. The example, advanced by counsel for the defence, was when someone had to make arrangements for the care of children.