Appunti Hart, Dworkin e Raz secondo modulo philosophy of law

HERBERT HART: THE

CONCEPT OF LAW

THE CONCEPT OF LAW

The concept of law was written in 1961.

 nd

2 edition 1994 different from the first one because in this year he wrote a

  

postscript written by him that it was attached to it. It is not complete tho.

rd

3 edition 2012

 

It is a masterpiece because it is written in a wonderful English and it is very

 clear.

Hart is a legal positivist, probably a normativist, similar to Kelsen. Anglophone

legal theorists don’t know Kelsen but they know Hart, so they consider the book

as they foundation of the legal culture both in England and America.

It deals with the problem od the concept of law, and Hart’s answer to the

 question becomes a reference for all legal theorists everything in English



legal theory is an elaboration of Hart’s theory elaboration, discussion, or



critique of his view.

Chapter 1: What is law?

Law is a matter of bindingness and rules.

 Is law obligatory? How? possible answers:

  Then morality can be divided in

objective morality and social

morality (morality in terms of

what in the society we consider to

be just).

- This view cause problems:

If we think that morality is binding, we consider law and morality/justice as

the same thing. Of course law has something to deal with justice and

morality, but it is not the same thing so we’re not explaining what is the

concept of law.

On the other hand, when it comes to force the problem is that force is

something completely factual and not normative doesn’t give the idea of



bindingness, but the idea of coercion and fear.

Another element that makes law obligatory can be the rule. But what are rules?

 With rules, people must behave in a certain way they are about what people



must do, how they ought to behave. A rule is something that we need to

understand to do the right thing. There’s the need to follow the rules even when

there aren’t consequences, so they are independent from facts.

Legal science is a matter of norms, so to understand the concept of law it’s

necessary to understand what rules are law is a domain of norms.



Can we define law?

 - Law it is a sort of X that has peculiar features of Y. What kind of X is not

important.

Problem a sort of what? Different answers.



Hart in chapter 1 doesn’t want to find a definition of law but he wants to define

 a central set of elements that can be relevant to answer to the question “what

is the concept of law?”

In doing this, Hart will address Austin’s view as a possible answer. Hart analyses

the theory by Austin and finds it defective. So in chapter 2 and 3 of the book he

will reply to Austin’s theory and destroy it, after considering it in a deep way. In

chapters 5, 6 and 7 he will reveal his solution.

Chapter 2, 3, 4: orders, commands

Hart explains the idea and the methods of Austin by addressing the notion of

 commands Austin thinks that legal norms are just commands, but what are



commands? A command is the use of a prescriptive language, but Hart notes

that the use of a prescriptive language is not sufficient because you can use

prescriptive language in very different ways. There is a typical situation in

which prescriptive language is

particularly appropriate 

when someone threatens you

to make you do something; the

important part is not the

prescriptive language but the

threaten gunman

the

situation the authority



threatens and does something

bad if you don’t comply.

In this situation as the gunman threatens you and shoots if you don’t comply.

Gunman situation and Austin’s view of law seems the same but it is not.

He is adding features to the simple model of gunman situation so we can

reproduce for us the characteristics of law:

- Legal control is general generality



- Standing orders a legal system the order stands; the order stands even

in

if the gunman goes away.

- General habit of obedience people must envelop a habit to obey to law

 

fear is internalized and this push people to obey.

- Supreme power not a gunman among many, but THE gunman.



Austin already knew this features in his view even if he didn’t explain them. This

features are part of Austin’s theory.

He adds this feature because he wanted to be taken seriously in a moment in

which Austin had a lot of fame, so he shows how good Austin was as a jurist, he

tries to understand his view, but then Hart attack his model, showing his

problems. Also he thinks that not all norms are orders. This is shown by

problems of:

- Content law doesn’t simply forbid and gives threats, but it makes things



possible; it gives citizens the power to do something.

Hart imagines the possible reply to the Answer of Austin about this:

1. Nullity as a sanction usually if you don’t follow the



procedures/forms/conditions, the thing that seems to give you power it is

actually not valid and there is nullity as a sanction if you don’t follow



the procedures given by the law, you don’t get the effect.

But this doesn’t work, because when there is a sanction (in criminal law)

the goal is discourage the activity we are not discouraging the activity,



even in the case of promises which are null or valid. So we understand

that there’s no sanction about the activity, since that activity is what the

legal system wants to achieve and not to discourage. Rules give you

possibility, so the sanction of nullity Is not that important because there’s

no point on discouraging citizens from doing something.

Also in normal rule of conduct, the rule is meaningful even when

detached from its sanction.

2. Kelsen thinks that power-conferring norms are simply a fragment of the

overall norm that ultimately lead to the sanctions. if A, then B (B is a



sanction). But we need to deal with power conferring rules, for example the

rule about legislative power of the parliament; the overall

norm is the

bigger square

and the

smaller square

is only a

fragment of the bigger square.

So kelsen thought that all power conferring norms could be included in norms in

terms of sanctions.

Kelsen wants to say that in a legal system there are a lot of kinds of norms, but

in the end the very important thing is that a norm gives a sanction connected to

the behaviour. If there are norms that don’t give sanctions, they are not really

norms but they are fragments of the overall norm.

Hart considers this view and he gives to kelsen the credits and the merit of

formulating a wonderful rule what is ordinarily thought of as the content of



law, designed to guide the conduct of citizens, it is directed to officials and not

to citizens, that have to apply certain sanctions if certain conditions are

satisfied.

Hart thinks that this is a formidable theory, but he thinks that it is distorted

because norms are not mainly directed to officials, but they are directed to

citizens. Law is a matter of norms directed to citizens to make them behave in a

certain way. The goal of norms is giving modes of behaving to people and not to

officials. Norms are for people and only secondarily for officials.

Range of applications If we consider legal norms as orders we miss the fact



o that often legal norms apply also to those who enacts them (legislatore); but an

order does not apply to who enacts the orders. They would be self-binding, but

this is not possible.

- Mode of origin if we assume that legal norms are orders, we can’t explain



customs.

Hart criticize Austin’s model of sovereignty too.

 The sovereign are the people that frame the law ultimately and the people to

whom we must obey.

Austin insists on this idea of obedience, in which people have the habit of

obedience; Austin thought that this idea could work for all kinds of legal

systems.

Hart tries to consider the problem what is law considering the problem of what

is sovereignty not in general but looking at this model of Austin to see if new

elements can emerge.

He makes a mental experiment mental experiment of Rex:

 Rex is an absolute monarch

the idea is that we have habit

to obedience and Hart

analyse the habit of

obedience.

What if Rex dies? His son Rex II

starts to reign, but people will not

have the same habit to obey, since

habit takes time. When someone

dies there’s no habit. We have to

wait and see if there will be habit

as it was for Rex I. People don’t

know if Rex II is capable of

threaten them, which leads to

habit of obedience.

Hart wants to show that we just obey to rules.

To summarize: Hart considers Austin’s idea of sovereignty and then he shows

that the view doesn’t work, but this failure show us something relevant about

sovereignty.

Continuity and persistence of law are features of law, because the rules last.

Rules define authority.

What are rules?

 Compare the idea of a rule with Austin’s idea of habit:

- Social rules and habits have one thing in common the behaviour must be



general and repeated by most of the people.

- First difference for the group to have a habit it’s enough that behaviour



converges, but deviations from the regular course it’s not a matter of

criticism; when there is a rule deviations are considered as lapses or faults

opened to criticism and there is the pressure of conformity.

- Second difference When there are rules, the criticism is justified.



- Third difference is implicit the internal aspect of rule. When a habit is



general, it is seen as the observable behaviour of most of the group, but if a

social rule is to exist, the behaviour is seen as a general standard to be

followed by the group as a whole. A social rule as an internal aspect,

because you reflect inside yourself what you should do, it’s an element of

reflection. Rules are something that have

the elements of elaboration,

reflection, deliberation; so this

make rules different from

habits because it’s a matter of

someone just does (because

it’s normal) and not a matter

of what we should do whether

if it’s right or not.

Habits are automatic,

mechanical and people don’t

think while doing those

actions.

If you don’t think about what is right or wrong, you are in front of a habit.

Rules are a deal of:

- Regularity of behaviour considered right or wrong

- Use of normative language (should do something)

- Factual convergence

- The deviation of the factual convergence leads to criticism

- Good reason consideration of the behaviour as a good reason to criticize



Hart gives a description of acceptance of rules in very simple terms: general

behaviour in both habits and rules, and justified reaction in rules which doesn’t

exist in habits it is a rule only if people react, if there is criticism and reaction.



Hart says that it is not so much a problem of the rules that all people share in a

community, but a problem of the rules that officials of the system share in a

community.

Authority is based on rules but we cannot expect that all the people in the

community to have such a knowledge of constitutional matters; so if you want

to explain how authority really works, you must make a distinction between

normal people who obey the system and officials who know and accept the

rules of an authority. For people it’s too complex to understand how authority

really works, so they just obey, whether officials are expert and know and

accept rules of authority.

So Hart makes a distinction between:

- passive aspect of citizens

- active internal attitude of officials

rules are especially shared especially from officials.

Internal aspect of rules is not a matter of feelings: people live a psychological

experience when they feel bound to behave in a certain way, but such feelings

are neither sufficient nor necessary. It’s a matter of what you do/behaviour. It is

not necessary that you feel but it is necessary that you behave in a certain way.

It is a standard for behaviour and you apply elements such as right, wrong,

ought to/should.