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Positive And Natural Law Theories Essay

1644 words - 7 pages

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 Rules of Change; and The Rules of Adjudication. (Bix, p. 39-40) Hart states that given only the primary rules you cannot reach a working and effective legal system and this state is called pre-legal. To enter the legal state the secondary rules must be enacted and only then can one establish a proper legal system. To clarify the rule of recognition, Hart gives criticism of Austin's position on rules to be the matter of complete obedience to the absolutist sovereign, and states that it is on contrary a matter of acceptance of the recognition concept which assists subjects in evaluating the validity of certain laws. When it comes to The Rules of change, it implies that certain rules can and ought to be changed (for instance in the matter of time), unlike long-established morals, which claim to be universal, and this is a necessary condition for a proper legal system (the rule of change). He still doesn't say that laws at this point should be devoid of morality, but rather claims them to be in some cases compatible with morality. The rule of adjudication is concerned with courts and judges for the cases, when there is ambiguity involved and judicial discretion is a necessary solution. Here Hart says that judges by trying to...

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