Austin’s theory of law was very simple, perhaps even simplistic.He proposed that law is (or laws are) the commands of a sovereign. Hart systematically dismantled this definition of law.He showed that laws are not commands and that legal systems are not based on what Austin called sovereigns.
We have already seen Hart's analysis on Austin's command model of the law.
Thereafter, Hart's criticisms with regards Asutin's theory.
Now it is time to review Hart's additions, amendments, 'improvements' to legal theory.
Primary rules and secondary rules
Hart distinguishes between:
a)
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,.
b)
secondary
rules relate to other rules, either primary or secondary, and are
power-conferring rules. These rules describe how other rules can be created or
modified, and belong to what Hohfeld calls second order jural relations.
Secondary rules are necessary to reduce
uncertainty as to what primary rules are in force. They are also necessary if a
legal system is to be dynamic rather than static, for there must be a mechanism
by which primary rules and entitlements can be changed quickly and deliberately
otherwise the law will become stagnant.
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
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. If the question is raised whether some
suggested rule if legally valid, we must, in order to answer the question, use
a criterion of validity provided by some other rule. Is this purported by-law of the Oxfordshire
County Council valid? Yes: because it
was made in exercise of the powers conferred, and in accordance with the
procedure specified, by a statutory order made by the Minister of Health…There
may be no practical need to go further; but there is a standing possibility of
doing so. We may query the validity of
the statutory order and assess its validity in terms of the statute empowering
the minister to make such orders,
Finally…we are brought to a stop…for we have reached a rule which, like
the… statutory order and the statute provides criteria for the assessment of
the validity of other rules; but it is unlike them in that there is no rule
providing criteria for the assessment of its own validity” CoL 107.
The rule of recognition is a single rule
containing the over-arching set of criteria to which officials adhere when engaged
in the activity of law ascertainment. It is the fundamental rule that states
what a valid rule is and the existence of such a rule is the fundamental
component of Hart’s concept of law. The existence of such a rule is also purely
a question of fact: you determine its existence by simply looking at the
behaviour of the officials who ascertain the rules; if most officials accept a
certain rule as the rule of recognition, then that is the rule of recognition.
So unlike other rules, the rule of recognition can never be valid or invalid—it
can only be accepted or not accepted
Hart’s concept of law
In order to have a legal system, it is
necessary that most officials accept the rule of recognition and the
rules identified thereby. All that is required by citizens is simple obedience,
although acceptance is desirable. Moreover, the two necessary and sufficient
conditions for the existence of a legal system (in its central case) are primary
rules which citizens generally (but not necessarily universally) obey, and secondary
rules of recognition, change, and adjudication which official generally (but
not necessarily universally) accept.
What is acceptance?
Hart distinguishes between obedience and
acceptance: a) obedience is mere compliance and does not necessarily entail
commitment. Mere obedience means you need only have an external perspective,
either moderate or extreme although moderate is more likely. b) acceptance is
compliance with commitment. Commitment entails the adoption of the critical
reflective attitude and the internal perspective.
Adjudication
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)
Inability to anticipate brings with it a
relative indeterminacy of aim. (CoL 128)
Because of the vagueness and ambiguity of
language legal norms will necessarily have an open texture. And because of the
open texture of language, there will be a core of settledness and a penumbra of
unsettledness in every legal rule. This is true even of the rule of recognition.
Hard cases involve the penumbra of
unsettledness, while easy cases involve the core of settledness
Even within the area of open texture, rules
still provide standards determinate enough to limit though not exclude judicial
discretion (see CoL, p. 147).
One way to view Dworkin’s theory of
constructive interpretation is as an attempt to explain how courts do and
should fulfill what Hart characterises as their creative function, although
Dworkin makes much grander claims for his theory himself.
Hart distinguishes between "finality"
and "infallibility". Infallibility exits when discretion is the
rule—i.e. when the rule is that the law is whatever some official says it is. Finality
exists where an official has discretion in applying a rule within certain
specified criteria—in this case the official's decision may be final but it is
not infallible for it can be mistaken.
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