H. L. Hart was an influential British philosopher, who revolutionized the philosophy of law and methodology in jurisprudence. Influenced by Jeremy Bentham (utilitarian approach), another prominent British thinker, and John Austin, he established a new ground for the school of legal positivism, especially the analysis of the legal concepts and the idea of the separation of law and morals. One of the most important works of him is "The Concept of Law", published in 1961, aims to analyze a relationship between law, morality, and coercion. What is important here, that Hart does not claim that there is no intersection of law and morality and laws should be completely devoid of moral aspect or consideration, but underlines the idea that there is no necessary logical connection between them (one is not always a consequence of the other). One cannot coin all the laws either with morality or coercion, as it undermines the relationship between them. It is important first to state the definition of law according to Hart, which is rules (not habits, as some aspects of morality (in daily life) are the matter of habit, constant practice, not some legal concept) that either restrain one from certain actions or impose certain duties/obligations. Laws serve multiple and important purposes, for instance they not always bestow obligations on individuals but may grant them with certain privileges. Hart describes obligation and duties as, what he calls, primary rules of obligation. When there is uncertainty or ambiguity regarding the primary rules is involved among objects, or some aspect are proved to be defective (inefficient), the "secondary rules" are to be introduced (e.g. to correct, to explain), which are: The Rules of Recognition; The Rul...
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...tate of nature, otherwise, no matter how ineffective or unjust the sovereign is, the people don't have the power to overthrow the government. With the social contract now being a legal way to establish connection and cooperation between the ruling body and its subjects (this very relationship is sovereignty by the modern definition (Loughlin, p. 186)), it is very important to point out the 3 aspects that ought to be preserved if to create a legal state: an independent territory, a ruling authority (institutional body, form) and people (the tradition of Staatslehre, German) (Loughlin, p. 192) The state is now defined as "the autonomous organization and activation of social cooperation within a territory" (Loughlin, p. 208), so this social cooperation, legalized by the idea of the social contract was a necessary precondition for the state to emerge and later to exist.
To understand the relationship between a system of government (such as Canada’s) and legal positivism, one must first understand the purpose of it. Both John Austin, an English jurist, and H.L.A Hart, a British legal philosopher, believed that laws do not involve morals. Legal positivism is the “view of man-made law as it is set by man for man rather than as it ought to be” (Hart). Unlike Austin, Hart thought laws to be more than just commands with sanctions. Instead, he viewed laws as social rules of two types.
While maintaining a open look of this moral law, Lewis presents two objections one would present to the moral law: “The moral law is just herd instinct” and “Morality is just social convention. The moral law is not a herd instinct due to man’s choice to suppress stronger instincts in fa...
Law is a system of rules that are implemented throughout social establishments to govern behavior. A principle for judging acts as reasonable or unreasonable and they may seem objective, universal, and knowable, which dispositions are guide. Our function is rational activity, and our rational nature gives us dispositions when we are naturally disposed to seek to know, understand, and be
Culver, Keith Charles. Readings in the philosophy of law. 1999. Reprint. Peterborough, Ont.: Broadview Press, 2008. Print.
(7) H. L., Hart, The Concept of Law, ch. VIII, and D., Lyons, Ethics and the rule of law, Cambridge University Press, 1989, p. 78 ff,
“Do what you believe is right.” This is a phrase common to us all, brought to our attention by parents, reinforced by teachers, and preached by leaders. But how does one define what is right? Is it what we believe in our hearts, or is it what we know is acceptable? This is a predominant dilemma that can be traced throughout society, and is the main focal point of Sophocles’ play Antigone. Written in 441 B.C., Antigone is one of the earliest records of the conflict between Natural law and Positive law. Sophocles deftly exposes these two philosophical standpoints and their respective moral and political aspects by way of the two main characters, Antgone and Kreon. Antigone is a champion of Natural law, while Kreon practices the Positivist approach. Both characters deem their behavior superior towards the other, and both assume religious justification for their actions. Sophocles ultimately proves that with so much support for each philosophical standpoint, a solution to the dilemma is hardly in sight.
... the existence of the absolute authority of the sovereign there is the threat of returning to the State of Nature because there is nobody to punish anyone who breaks the social contract. Furthermore, the people have consented to the existence of the sovereign with absolute authority and they must accept that whatever the sovereign decides to do is an action that they have consented to through the social contract.
In the discussion of legal philosophy there is the ever occurring question “what is law”, many legal philosophers have attempted to answer such question but I believe the one philosopher to change the field entirely was John Austin. John Austion was the first modern legal positivist (and possibly founding father) to present a contemporary theory of law. Austin’s main interest in the philosophy of law was differentiating the reality of the law from the normative or moral merit of law. This in sense is scientific approach because positivism is an empirical approach to philosophy, which extends it use to the scientific method and other fields. None the less my goal here is not to present an all-out account of Austin but to present a comprehensive evaluation of legal positivism and present the issues I have found prominent in legal validity, whether it be with Hart, Austin any other theorist. However I feel it may be necessary to start with the earliest theorist on the subject John Austin.
The Social Contract is an attempt to explain the reason why individuals agree to form organized governments. The idea that a person is willing to abandon the freedoms previously enjoyed under the State of Nature in which no government interfered with their pursuits, are believed to correspond to the individual’s attempt to protect what is on their best interest.
Secondly, I will tackle the confusion that Austin creates between ‘being obligated’ and ‘being obliged’ to do something. This distinction is made clear by Hart who seeks offers the example of a gunman, which I will go into greater detail in the main body of the essay. From this analysis of Austin I will comment and assess Hart’s own Command Theory of Primary and Secondary rules, drawing attention to the Rule of Recognition and his disconnected relation of law and morality.
This theory looks at how the sovereign and its officials created the law based on social norms and the institutions (Hart, 1958). However, hard cases such as this makes for bad law, which test the validity of the law at hand based on what the objective of the law was in the first place. The law should not be so easily dismissed just because it does not achieve justice in the most morally sound manner (Hart, 1958). Bentham and Austin understood that there are two errors in the way law is understood, what the law is and what the law should be (Hart, 1958). He knew that if law was to become what humans perceived the law ought to be, the law itself would be lost, but he also recognized that if the opposite was to occur where the law replaced morality, than any man would escape liability and there would be no retribution (Hart, 1958). This theory looks at the point of view of the dissenting judge, Justice Gray, which is that the law is what it is, even if it may conflict with morals. Austin stated that “The existence of law is one thing; its merit and demerit another. Whether it be or be not is one enquiry; whether it be or be not conformable to an assumed standard, is a different enquiry (Hart, 1958).” This case presents the same conflict that Bentham and Austin addressed, that the law based on the statute of the
Question One: Define natural law and positive law. What is the relationship between natural law and positive law? Natural law and positive law operate with similar intent yet have been developed separately, but in a manner in which they coexist. Positive law is the tangible system of “rules” in which society operates under. This form of rule abiding is set forth by two different branches, moral code and forms of law (Riddal, pg. 41). Moral obligation does not consist of a set punishing body when such rules are violated, but are subject to opposition from another party in the event of such code being breached, forcing pressure to conform. Such pressure is more explicitly present in legislative rules through various sanctions; heavily deterring
Law is the foundation of central structures of social life on which society’s integrity depends, which is why Petrazycki, Ehrlich and Habermas perceive it to be a key steering mechanism in society,
Law is the framework which applies to members of the community and sets the binding values and standards recognized by its subjects. It regulates their behaviour and it reflects the principles ...
The relationship between law and morality has been argued over by legal theorists for centuries. The debate is constantly be readdressed with new cases raising important moral and legal questions. This essay will explain the nature of law and morality and how they are linked.