Jurisprudence
Jurisprudence
Jurisprudence
LUCKNOW
FINAL DRAFT
SUBMITTED TO
SUBMITTED BY
Aditya Singh
Roll no. : - 13
Section A, Semester IV
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ACKNOWLEDGEMENT
During preparation for this project I was immensely helped by all the facilities of Dr. Ram
Manohar Lohiya National Law University.
I would also like to thank my teacher Mr. Manvendra Kumar Tiwari for giving me the
opportunity to choose this topic and for providing me the creative freedom to go upon this
project as I like.
Finally, Id like to thank my friends and batch mates for their valuable suggestions and
assistance.
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Contents
ACKNOWLEDGEMENT................................................................................................ 2
INTRODUCTION........................................................................................................ 4
LAW AND
MORALITY
11
POSITIVISM..
.11
LEGAL
POSITIVISM
.12
CONCLUSION
...13
BIBLIOGRAPHY.......................................................................................................... 14
Primary Sources-................................................................................................... 14
INTRODUCTION
Legal positivism, of which Hart was the major proponent, has been variously
evolved and significantly refined in many respects and by many followers.
But at the same time legal positivism demonstrates signs of an excessive
pluralism and a theoretical fragmentation of detailed analyses, so much that
nothing we can say about legal positivism in general can be agreed to by all
positivists. Inclusive positivists differ with the exclusives, and within each
1 HLA Hart was formerly Professor of Jurisprudence at Oxford University, Principal of
Brasenose College, and Fellow of University College.
2 Priel, Dan (2011). H.L.A. Hart and the Invention of Legal Philosophy. Problema 7
(5): 301-323
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camp they differ with each other on the reasons why the opposite camp is
wrong3. However, Harts shadow hovers over these disagreements and his
theory remains by far the most interesting and internally consistent version
of legal positivism. This is why we need to go back at Harts writings and
explore his insights about law, legal theory and the concept of justice. What
follows is a critical examination of Harts methodological premises in an
attempt to bring to light the conceptions underneath his concept of law and
justice.
Hart has criticized theory of John Austin (who says that only law strictly so
called is the IS LAW and the proper law while others such as Laws of
Physical Nature, Laws of Analogy, Laws set by man not acting as a
political superior or Devine Laws are not proper law and are Ought
Law) and has compared Austins theory to that of the Gunmans theory.
According to him, when Law comes to conformist conduct (which conforms to
law), it is about habit and not Rule. This conformist conduct is only an
external aspect of Law. There is ignorance of internal aspect, thus making
him a soft Positivist.
Legal positivism, of which Hart was the major proponent, has been variously
evolved and significantly refined in many respects and by many followers.
But at the same time legal positivism demonstrates signs of an excessive
pluralism and a theoretical fragmentation of detailed analyses, so much that
nothing we can say about legal positivism in general can be agreed to by all
positivists. Inclusive positivists differ with the exclusives, and within each
camp they differ with each other on the reasons why the opposite camp is
wrong4. However, Harts shadow hovers over these disagreements and his
theory remains by far the most interesting and internally consistent version
of legal positivism. This is why we need to go back at Harts writings and
explore his insights about law, legal theory and the concept of justice. What
follows is a critical examination of Harts methodological premises in an
attempt to bring to light the conceptions underneath his concept of law and
justice.
Harts thesis that a rule of recognition exists in every legal system is the
central feature of his positivistic theory of law, for it is that feature which
distinguishes which things are law and which are not and also provides a
means for identifying the law in a morally neutral approach. It also affords an
answer to the question of when a legal system exists. The master rule of
recognition is the ultimate source of a legal system like the Austins
sovereign7. According to Hart, a simplest version of the rule of recognition in
5 Dias, RWM (1994) Jurisprudence New Delhi: Aditya Books Private Ltd, p352.
6 Dias, RWM (1994) Jurisprudence New Delhi: Aditya Books Private Ltd, p352.
the English system is whatever the Queen in the Parliament enacts is law.
Where there is an accepted constitution that accepted constitution is the rule
of recognition. The question of the validity of law is to be answered with
reference to the rule of recognition. To say that a given rule is valid Hart
states, is to recognize it as passing all the tests provided by the rules of
recognition. The rule of recognition is ultimate in the sense that while the
validity of other rules is determined by their conformity to the criteria
specified in the rule of recognition, there can be no question concerning the
validity of the rule of recognition itself 8. Its existence is a matter of fact and
not a question of compliance with any other higher order rule. Just as
Austinian sovereign does not stand in relation of habitual obedience to any
other persons, so is Harts sovereign rule of recognition. That is to say, Harts
sovereign rule of recognition also does not stand in relation of the rule
accordance to any other legal rule. Just as, the legal validity of the Austinian
sovereign is not questioned, so is the legal validity of the Harts rule of
recognition not questioned. But, Austinian sovereign may die, whereas
Harts rule of recognition only fades away (into disuse). Unlike Kelsons basic
grundnorm, Harts rule of recognition is not an extra-legal juristic hypothesis.
Rather, it is a rule of positive law. It seems, he follows Kelsen in some
aspects.
Hart describes the introduction of secondary rules as a step from the pre-
legal to legal world9. Hart says that the primary rules of obligation are not in
themselves adequate to establish a system of laws that can be formally
recognized, changed, or adjudicated. Thus, secondary rules are necessary in
order to provide an authoritative statement of all the primary rules; in order
to allow legislators to make changes in the primary rules if the primary rules
are found to be defective or inadequate; in order to enable courts to resolve
disputes over the interpretation and application of the primary rules. The
secondary rules of a legal system, therefore, includes-
Rules of recognition
Rules of change, and
Rules of adjudication.
8 Ibid, pp207-8.
The primary rules, therefore, acquire the character of a legal system through
their union with the secondary rules.
According to Hart, the primary rules must be combined with secondary rules
so as to advance from the pre-legal to the legal stage of determination. Hart
says 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 assessed. If a primary
or secondary rule satisfies the criteria which are provided by the ultimate
rule of recognition, then that rule is legally valid.
There are two fundamental essentials which must be satisfied in order for a
legal system to exist:
Private citizens must generally obey the primary rules of obligation, i.e.
those rules of behaviour are valid according to the systems ultimate
criteria of validity must be generally obeyed and
Public officials must accept the secondary rules of recognition, change,
and adjudication as standards of official conduct.
If both of these essentials are not satisfied, then primary rules may only be
adequate to establish a pre-legal form of government.
Unlike Austin and Kelson who rejected and ridiculed natural law, Harts
positivism contains within it a minimum content of natural law. He has
structured the concept of natural law explicitly with positivism what he calls
simple version of natural law. Morality is also couched in Harts concept of
law. This has made Hart a positivist as well as naturalist. There are some
conjunctions in the Harts system of law where law and morality overlap and
coexist, and are even complimentary and supplementary in nature. Further,
his refutation of law as a gunman situation further implies the inseparable
character of the relationship between law and morality. Moral and legal rules
may overlap, because moral and legal obligation may be analogous in some
situations. However, moral and legal obligation may also be different in some
situations. Moral and legal rules may be appropriate and valid in 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 way in which the legal rules can be
changed. Hart does not say that there is necessary conceptual or definitional
connection between the legal and the moral, but he does, however,
acknowledge that the ultimate basis for preferring the positive thesis, which
insists on a clear differentiation of law and morals, is itself a moral one.
But, Hart distinguishes law from morality, custom, etiquette, and other kinds
of social rules. According to Hart, four features of morality are necessary for
a clear picture of his concept of law. They are
1. Importance
2. Immunity from deliberate change
3. Voluntary character of moral offence and
4. Forms of moral pressure.
Hart has criticized theory of John Austin (who says that only law strictly so
called is the IS LAW and the proper law while others such as Laws of
Physical Nature, Laws of Analogy, Laws set by man not acting as a
political superior or Devine Laws are not proper law and are Ought
Law) and has compared Austins theory to that of the Gunmans theory.
According to him, when Law comes to conformist conduct (which conforms to
law), it is about habit and not Rule. This conformist conduct is only an
external aspect of Law. There is ignorance of internal aspect, thus making
him a soft Positivist.
Hart commences from a very simple instance of a coercive order, that made
an armed bank robber, the gunman, to a bank clerk to hand over money
upon immediate pain of being shot. In a very different context, to a captured
pirate brought before Alexander the Great. When asked how he dared to rob
ships at sea, the pirate replied that he had only one ship and was
condemned as a pirate whereas Alexander had many and was acclaimed as
an Emperor, making the point that power as such does not confer legitimacy.
Harts point is narrower and is simply that the bank robber has no authority
over the clerk. Upon this basis Hart makes a clear distinction between the
situations of being obliged and being under obliged, the former involving
the actual or predictable application of compulsion, the latter involving the
concept of duty whether or not any sanction can reasonably be expected to
be applied. Hart emphasizes the obligation element and he argues that the
command model, however it maybe elaborated or distorted, cannot
adequately account for this in the complex structures of a real society.
In his book The Concept of Law, Hart has analyzed the relation between law
and morality, and has also attempted to clarify the question of whether all
laws may be properly conceptualized as moral commands. Hart says that
there is no rationally necessary correlation between law and morality.
According to him, classifying all laws as moral commands is oversimplifying
the relation between law and morality. He also explicates that to
conceptualize all laws as moral commands is to impose a deceptive
appearance of uniformity on different kinds of laws and on different kinds of
social functions which laws may perform. Hence, it will be
mischaracterization of the purpose, function, content, mode of origin, and
range of application of some laws.
Indeed, there are laws which forbid individuals to perform various kinds of
actions and impose an assortment of obligations on individuals. Sometimes,
some laws impose punishment or penalties for injuring other individuals or
for not complying with various kinds of duties or obligations.
POSITIVISM
is not Law, i.e. IS LAW is made up of OUGHT LAW but one cannot
deduce that IS LAW is same as OUGHT LAW or vice versa.
LEGAL POSITIVISM
Legal positivism does not imply an ethical justification for the content of the
law, nor a decision for or against the obedience to law. Positivists do not
judge laws by questions of justice or humanity, but merely by the ways in
which the laws have been created. This includes the view that judges make
new law in deciding cases not falling clearly under a legal rule. Practicing,
deciding or tolerating certain practices of law can each be considered a way
of creating law.
The word positivism was probably first used to draw attention to the idea
that law is positive or posited, as opposed to being natural in the sense
of being derived from natural law or morality.
CONCLUSION
To conclude I would like to say that most of the aspects have been dealt by me in the current
Draft. I have tried to explain each heading as under them only.
Although the relation is not always direct, Hart considered that all justice can
be covered by the precept of treating like cases alike. Administrative justice,
one of the aspects of justice, is essentially related to the concept of law as a
system of rules. But, a legal system might still engross great distributive and
compensatory injustice. Further, it must be remembered that justice is only
one of the elements of morality and may be overridden by other elements.
However, if one decides to override justice to the common good, Hart
believes that one may be required to consider impartially all the competing
claims of persons10. In short, even if some injustice is inflicted for the
common good, all persons should be treated alike by being given equal
considerations.
Therefore to conclude one can say that according to Hart, One abides by Law not because of the
sanction but because everyone has sanctioned for it to be abided, BY MORAL CONSENSUS.
BIBLIOGRAPHY
Primary Sources-
Secondary Sources
7. Dias, RWM (1994) Jurisprudence New Delhi: Aditya Books Private Ltd.
8. Hart, HLA (1983) Essays in Jurisprudence and Philosophy.
9. Harts concept of Law and Justice Ravindra Kumar Singh