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Showing posts with label jurisprudence. Show all posts
The document has been prepared by Mwakisiki E. Mwakisiki and submitted to Legusc by Legusc team you may also share your document (pdf, doc, etc) to the email address legusc1.2018@blogger.com info
The document has been prepared by Mwakisiki E. Mwakisiki and submitted to Legusc by Legusc team you may also share your document (pdf, doc, etc) to the email address legusc1.2018@blogger.com info
1.
Enumerate and discuss the three developmental
stages that a society is destined to experience.
2.
Maine’s categorization of societies into static and
progressive societies is more apparent than real.
Discuss
3.
Law is a Development of the Popular Consciousness
of a People. Discuss
4.
What is the relevance of Historical school of
jurisprudence to legal studies in Tanzania?.
The historical school of
jurisprudence manifests the belief that history is the foundation of the
knowledge of contemporary era. Two
jurists who researched extensively in this area – Friedrich Carl Von Savigny (1799-1861) and Sir Henry Maine
(1822-1888) will be the subject of examination in this section.
History is a record of past events. As man has a past so does law. The
importance of historical school of jurisprudence cannot be overemphasized. Apart from standing in opposition to the
natural law school, the historical
school is unique for its emphasis of the relevance of generations past to the
present and the future.
The Two Prime Reasons for the Evolution of Historical School:
1. It came as a reaction against natural law, which relied on reason as the
basis of law and believed that certain principles of universal application can
be rationally derived without taking into consideration social, historical and
other factors.
2. It also came as a reaction against analytical positivism which
constructed a soul-less barren sovereign-made-coercive law devoid of moral and
cultural values described by Prof. Hart as “gun-men-situation”.
The Basic Tenets of Historical School can be Summarized as follows:
1. Historical jurisprudence is marked
by judges who consider history, tradition, and custom when deciding a legal
dispute.
2. It views law as a legacy of the
past and product of customs, traditions and beliefs prevalent in different
communities.
3.It views law as a biological
growth, an evolutionary phenomena and not an arbitrary, fanciful and artificial
creation.
4. Law is not an abstract set of
rules imposed on society but has deep root in social and economic factors and
the attitudes of its past and present members of the society.
5. The essence of law is the acceptance, regulation
and observance by the members of the society.
6. Law derives its legitimacy and authority from
standards that have withstood the test of time.
7.The law is grounded in a form of popular
consciousness called the Volksgeist.
8. Law develops with society and dies with society.
9. Custom is the most important source of law.
History can play dual roles in law practice and judicial decision-making
First Role: One role emerges through the legal doctrine of stare decisis, a key
component in a common law system. It
requires a court to consider and follow previous decided cases (precedents)
that sufficiently resemble an instant or current case. As it is sometimes
phrased, courts should treat like cases alike. Stare decisis therefore requires
a court to consider history: the history or tradition of analogous cases. The
problem that arises, however, is that the similarity and dissimilarity between
a prior case (or precedent) and a current case is almost always disputable.
Second Role: History also sometimes plays a second role in law practice and judicial
decision-making. Namely, lawyers and
judges sometimes invoke historical arguments to support a particular legal or
judicial conclusion. As a general matter, lawyers and judges typically accept
certain types or modes of argument as being legitimate within the legal system.
History often plays a prominent role in constitutional law. Attorneys
and judges will assert that historical evidence reveals that the framers of a
constitutional provision intended to achieve some desire goal.
Basic Concept of Savigny’s Volksgeist
Von Savigny, a prominent German jurist through his concept of Volksgeist
introduced a new dimension in the legal arena. In fact, his historical school
was anchored on the Volksgeist, or ‘the spirit of the people’. Savigny, also
known as the pioneer of his Historical School of Law through concept of
Volksgeist explains the need to understand the interrelationship between law
and people. For him, law and people cannot be isolated from each other and this
is well explained by Savigny’s concept of
Savigny’s method stated that law is the product of the volksgeist,
embodying the whole history of a nation’s culture and reflecting inner
convictions that are rooted in the society’s common experience. The volksgeist
drives the law to slowly develop over the course of history. Thus, according to
Savigny, a thorough understanding of the history of people is necessary for
studying the law accurately.
Criticism:
As already stated, a precise and flawless definition of law is far from
reality, and Savigny‟s Volksgeist is no exception. The following are the
criticisms of Savigny‟s Volksgeist:
1.Dias maintains that many
institutions like slavery have originated not in Volksgeist but in the
convenience of a ruling oligarchy.
2. It is not clear who the volk are
and whose geist determines the law nor it is clear whether the Volksgeist may
have shaped by the law rather than vice-versa.
3. In pluralist societies such as
exist in most parts of the world it really seems somewhat irrelevant to use the
concept of Volksgeist as the test of validity.
4. Important rules of law sometimes
develop as a result of conscious and violent struggle between conflicting
interests within the nation and not as a result of imperceptible growth. That
applies to the law relating to trade unions and industry.
5.Lord Lloyd also points out that
Savigny underrated the significance of legislation for modern society. Sir
Henry Maine rightly pointed out that a progressive society has to keep adapting
the law to fresh social and economic conditions and legislation has proved in
modern times the essential means of attaining that end.
6. Paton states that the creative
work of the judge and jurist was treated rather too lightly by Savigny.
7.A survey of the contemporary
scene shows that the German Civil Code has been adopted in Japan, the Swiss
Code in Turkey and the French Code in Egypt without violence to popular
propensity.
8. It was unfortunate that the
doctrine of Volksgeist was used by the National Socialist in Germany for an
entirely different purpose which led to the passing of brutal laws against the
Jews during the regime of Hitler in Germany.
Sir Henry Maine’s School of Law (1822-1888)
Maine’s deep knowledge of early society resulted in his emphasis on man’s
deep instincts, emotions and habits in historical development. According to
Maine, law can be understood as a late stage in a slow-evolving pattern of
growth. He believes that there are three stages in legal development in early
societies
– law as
the personal commands and judgments of patriarchal ruler; law as custom upheld
by judgements; and law as code.
“Law” in Tribal Societies
Primitive, tribal societies appear to lack “law” in the form that exists
in so-called advanced societies. The absence of the institutions that we
normally associate with legal system – courts, law enforcement authorities,
prisons, and legal codes led to the conclusion that these communities were
governed by custom rather than law.
Three Stages in Legal Development
In the first stage, absolute rulers dominated. It was the age of the divine rights of
Kings, where the king could do no
wrong. System of ruler ship was absolute and draconian. There were no
principles governing governance; only the whim and caprice of the king reigned.
Recall Austin’s commander, who was above the law, and whose commands must be
obeyed by inferiors.
The second stage is heralded by the decline of the power and might of patriarchal rulers
(i.e. a small group of people having
control of a country or organization). In their place, the oligarchies of
political and military rulers emerged. The oligarchies claimed monopoly of
control over the institutions of law.
Maine
maintains that the judgments of the oligarchies evolved or solidified into the
basis of customs. But the customs are largely unwritten, giving interpreters
the opportunity to enjoy a monopoly of explanation.
In the third stage, which represents the breaking of the monopoly of explanation,
codification characterizes the legal
system.
Static and Progressive Societies
Maine further propounded that for the purpose of the development of law,
society can be categorized into two: static and progressive society.
Static or stationary societies did not move beyond the concept of
code-based law. In this society, reference to the code answered all legal
questions. According to Maine, members of the society were lulled into the
belief in the certitude of code and were, therefore, unwilling to reform the
law.
On the other hand, progressive societies were to be found in Western
Europe. These societies were dynamic and amenable to legal reform. They brought
about the development and expression of legal institutions.
In the development of law in progressive societies, Maine identified the characteristic use of three agencies – legal fictions, equity and
legislation. Legal fictions are mere suppositions aimed at achieving justice by overcoming the rigidities
of the formal law. According to Maine, legal fictions help to ameliorate the
harshness of the law. A classic example he gave was the institution of the
Roman fiction of adoption. He called equity a secondary system of law. It
claimed a superior sanctity inherent in its principles which exist side by side
with the law. In many cases, it could displace the law. Legislation represents
the final development of the law. It is an institution through which various
laws in the society are reduced into writing or codes.
Miscellany
Maine is known to have commented on “status” and “contract”. He said
that “the movement of progressive societies has hitherto been a movement from
status to contract”. In explaining this statement, Maine said that in early
times an individual’s position in his social group remained fixed; it was
imposed, conferred or acquired.
He
just stepped into it. He accepted such fate as he found it. He could do nothing
about it. Later on, however, there came a time when it was possible for an
individual to determine his own destiny through the instrumentality of
contract. No longer was anything imposed on him from external forces; he was
now in charge: from slavery to serfdom, from status determined at birth, from
master-servant relationship to employer – employee contract.
Maine Criticisms
Maine is criticized for
oversimplifying the nature and structure of early society for the following
reasons:
Early society does not show an invariable pattern of movement from the
three-stage development of law – from personal commands and judgments of
patriarchal rulers through law as custom upheld by judgments to law as code.
The so-called rigidity of the law has repeatedly be challenged by
contemporary anthropologists who are of the opinion that primitive peoples were
adaptable and their laws flexible.
Also, there were matriarchal
societies just as there were patriarchal societies.
Furthermore, it has been observed that status does not necessarily
gravitate to contract. Rather, the opposite development has been possible. For
example, social welfare legislation in advanced countries is status-based. In
the U.S., “affirmative action”, a policy that is predicated on Afro-Americanism,
is status-based. Also, in Canada and UK, the status of a single mother is
recognized in law.
Conclusion: Although Maine lived up to his historical commitment, he overlooked
the dynamics that have characterized
societies across ages.
jurisprudence
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BIBLIOGRAPHY
Austin,
John. The Province of Jurisprudence Determined and The Uses if the Study of
Jurisprudence. London: Weidenfeld and Nicolson, 1954.
Cohen,
Marshall. "Herbert Lionel Adolphus Hart," in the Encyclopedia of
Philosophy. New York: Crowell, Collier and MacMillan (1967).
Dworkin, Ronald. Law’s Empire.
Cambridge: Harvard University Press, 1986.
Hart, H.L.A. The Concept of Law.
Oxford: Clarendon Press, 1994.
Hans
Kelsen: Pure Theoryof Law. Translated by Max Knight. New Jersey: The Law Book
Exchange Ltd, 2002.
Hobbes,
Thomas. "Levinthian." The Great
Legal Philosophers. Ed. Clarance Morris. Philadelphia, Pennsylvania:
University of Pennsylvania Press, 1971. 109-133. Print.
Aquinas, Thomas,
St.. "Summa Theologica." The Great Legal
Philosophers. Ed. Clarance
Morris.
Philadelphia, Pennsylvania:
University of Pennsylvania Press, 1971. 57-79. Print.
Austin, John. "Lectures on Jurisprudence."
The Great Legal Philosophers. Ed. Clarance Morris.
Philadelphia, Pennsylvania:
University of Pennsylvania Press, 1971. 335-363. Print.
Hart, H.L.A. Concept of Law. Oxford, London: Oxford University Press, 1961.
76-107. Print.
Aristotle, . "Nicomachean
Ethics- The politics." The Great
Legal Philosophers. Ed. Clarance Morris.
Philadelphia, Pennsylvania:
University of Pennsylvania Press, 1971. 26-40. Print.
Introduction:
One version of legal realism was the one propounded by
Samlond, who pointed out that all law, is not made by the legislature. In fact
he argued that in England much of it was made by law courts. Nevertheless, all
laws, however made, are recognized and administered by the courts. Therefore,
if a rule is not recognized by a Court, it is not a rule of law. Thus,
according to Salmond, it is the courts and not the legislature that we must
turn to if we wish to ascertain the true nature of law. Accordingly, he defined
law as the body of principles recognized and applied by the State in the
administration of justice, as the rules recognized and acted upon by the
Courts.
However, there has been another version of legal realism, particularly
in the United States of America. According to this theory propounded by
American jurists, law is in reality judge-made. The origin of this theory is
traced to Justice Holmes, and the theory has a substantial following in the
United States.
Holmes highlights the situation not of the judge or the lawyer, but of
what he calls ‘the bad man’, i.e. the man who is anxious to secure his own
selfish interests. Such a man is not interested in knowing what the statutes or
the text books say, but what the Courts are likely to do in fact. This theory
makes a distinction between law in books and law in action.
According to this theory, what the courts will actually do cannot
necessarily be deduced from the rules of law in text books or even from the
words of the statutes themselves, since it is for the Courts to say what the
words mean. As Gray observed, “The Courts put life into the dead words of the
statute.” This approach is a reaction to the traditional approach that judges
do not really create the law, but only declare what the law already is.
This school fortifies sociological jurisprudence, and recognizes law as
the result of social influence and conditions and regards it as based on
judicial decisions. In the words of Holmes,
“The life of the law has not been logic; it has been experience.” Or as
Paton pointed out, “Law is what the Courts do; it is not merely what the Courts
say. The emphasis is on action.”
However, the American realists point out that when Courts must choose
between alternatives, much will depend on the subjective element of a judge.
The judicial process, they argue, is not like that of a slot machine. Much will
depend on the temperament, upbringing, social background, realities, learning
etc of the judge. Therefore, they contend that law is nothing more than the
prediction of what the Courts will decide.
It is also argued that the language of several statutes is uncertain and
the Courts are therefore called upon to decide what a particular word or phrase
means. Thus, for instance, the English Road Traffic Act makes it an offence to
drive a vehicle in a manner dangerous to the public. An interesting question
brought before the Court was whether a person who steers a broken down vehicle
on tow can be said to be driving it.
Since the Parliament and not defined the word ‘driving’, the word would
have to be understood in the ordinary sense. However, the ordinary usage of the
word is not wide enough to cope up with such a marginal situation, as it does
not draw a very clear or distinct line between what is driving and what is not
driving. Faced with this question for the first time in 1946, the Court had to
draw such an arbitrary line and further define the term ‘driving’ in Wallace v.
Major.
A note can also be made of Scandinavian Realism, the founder whereof was
Axel Hagerstrom. Whilst the American realists preferred to revolve around what
the Courts did and what the judges said, the Scandinavian School sought to
develop a formal philosophy of law, showing how law is not an inextricable part
of society as a whole. The Scandinavian Realist does not look at law as a
divine command. According to them, law creates morality and not the other way around.
Criticism
The view that a statement of law is nothing more than a prediction of
what the Courts will decide is subject to certain criticism.
Legal situations are not predictions
It should be noted that a statement of law is seldom treated as a
prediction, which a counsel submits before a Court. He is not forecasting what
the judge will decide, but he is asking what the judge should decide. Further,
a judicial decision is not a prediction of what the higher Courts would do, but
it is a judgment as to what the law now is. Similarly, a legislature is not
predicting what will be done, but it lays down what shall be done.
The theory represents a fraction of the situation
Though the realist view may be true to some extent in those situations
when a new principle of law is evolved, yet it should be noted that most of our
law is settled and stabilized. It should also be noted that several points of
law never reach the Court, for the simple reason that the principle of law is
so clear that the parties adhere to it.
Thus, it is argued that the creative days of the judge is now a thing of
the past. It is argued that today the law is so complete that the task of the
judges is the more or less automatic task of applying settled laws to the cases
before them.
However, this criticism is not without an answer. Legal rules are still
not as certain as was once imagined and the element of choice still faces a
Court of law. To quote one example, in England the unlawful and intentional
killing of a human being is the common law crime of murder. But what would be
the position if X intentionally inflicts a mortal wound on Y, and then,
mistakenly thinking him to de dead, throws the body into a lake, with the
result that Y dies, not from the wound but from drowning? Would this amount to
murder? Until 1954, the English law had no answer to this question, when these
facts were before the Court in Thabo Meli v. R, in which case the Court had to
further develop the English law of murder.
The theory of uncertainty of language is not always correct
It may be noted that in some border-line cases, the language may be uncertain,
as in the example of the word ‘driving’ given earlier. But to generalize that
all language is uncertain is to exaggerate the situation without foundation. In
marginal cases, the meaning of the word may be uncertain, but this proves that
the meaning of the word is certain in other cases. Therefore, the
The
origin of the theory of Legal Realism can be traced to Justice Holmes. The theory propounds that it is the courts
and not the legislature that we must turn to if we wish to ascertain the true
nature of law. The theory works on the belief that “the Courts put life into the dead
words of the statute.” However, there has been some criticism of this
theory.
jurisprudence
What makes the law legitimate? What is a legitimate source of law? What
binds people to obey the law? Is there an essential connection between the law
and morality? Can the content of a law disqualify it from being considered a
legitimate law, which must be obeyed? This debate has been taken up by two
major groups of legal theorists:
Natural law
Natural law theory is a philosophical and legal belief that all humans
are governed by basic innate laws, or laws of nature, which are separate and
distinct from laws which are legislated.
Natural law’s content is set by nature it therefore has validity
everywhere .i.e. universal. The laws arise through the use of reason to analyze
human nature and deducing binding rules of moral behavior. This theory is built
on the idea of perfect law based on equity, fairness, and reason, by which all
man-made laws are to be measured and to which they must (as closely as
possible) conform.
Natural law theory has heavily influenced the laws and governments of
many nations, including England (Magna Carta 1215) and the United States
(Declaration of Independence 1776). It has also informed the publications of
international legal instruments like the Universal Declaration of Human Rights
(1948) and African Charter on Human Rights (1981).
Positive law
Positive law is law made by human beings. Specifically, positive law may
be characterized as law actually and specifically enacted or adopted by proper
authority for the government of an organized society. A body of man-made laws
consisting of codes, regulations, and statutes enacted or imposed within a
political entity such as a state or nation.
According to the legal positivists, law is only positive law; that is
statute law and such customary laws as recognized by the state. positivism
characterizes as law to be applied by the judges, and alone to be considered by
jurisprudence, those norms only which are enacted as such by the
Positive law sets the standards for acts that are required as well as
those that are prohibited and penalties are usually prescribed for violation of
positive law. Those who are physically present where the positive laws have
governing power are typically required to obey such laws.
The Contrast
Natural Law theorists such as
Plato, Aristotle, and St. Thomas Aquinas argue
that a law is only just and legitimate
if it promotes the common good. For
Legal Positivists like John
Austin, H.L.A Hart, and Thomas
Hobbes, a law is legitimate if it has been enacted through the proper channels
by someone with the power to do so regardless of the content of that law. While each theorist presents his own explanation, each seeks to answer
these crucial questions about law
and society.
Legitimate laws must come from legitimate sources. Legal Positivists argue that for the source of law to be legitimate, it must come from a source of power. For
Austin, the source of law must be
the only person who the subjects are in the habit of obeying. They must also be
willing to back their sanctions and laws with credible force. Natural Law theorists posit that the source of law is divine or can be
discovered and formed according to what is just and will
promote the common good. Aquinas takes the stance that the
source of divine law is God.
Human laws are derived from these
divine laws and practical reason.
Natural Law theorist St. Thomas
Aquinas argues that human law is legitimate only if it is in line with divine
law and promotes universal happiness. All law
is fashioned to the common welfare
of men. He posits that neglecting God’s law or the universal happiness in the
formation of a law makes it unjust. Accordingly, Aquinas advances that an
unjust law is not a legitimate law at all and does not have to be obeyed. In
stark contrast, Legal Positivist John
Austin contends that legitimate law
is nothing more than commands from a sovereign to the people who must obey him
backed by credible threats and sanctions. The law’s legitimacy is
Once legitimate sources have created legitimate and just laws, there
must be a reason as to
why people are compelled to follow or obey them. Natural Law subscribers
believe that the
ultimate end is the greater good
and law is ordered to serve the wellbeing of man. Good laws
should be followed because they
follow reason and are inherently valuable and are a means to the ultimate human
end. Additionally, they argue that man
was given reason, which distinguishes
him from beasts. It is this reason, which allows him to control his actions and
impulses to act justly. Acting justly and virtuously leads to the good life and
the ultimate happiness. Opposite these
thinkers is Austin. He believes that people are obedient to the
letter of the law because if they
do not then they will be punished with force. Fear becomes a motivator for
obedience for both Austin and Hobbes.
Summary
Natural law is typically based on moral principles, natural order, and
ethical code that people share as human beings. It is inherent and may not
require government enforcement. On the other hand positive law is the legal
rules that people are typically expected to follow; it is artificial order and
consists of rules of conduct that people place upon each other. Legal
positivists are of the view that for a law to be valid, it should be codified,
or written down, and recognized by some type of government authority. They
reject the theory that people will obey inherent law based on moral values.
Positivists espouse relativism and subjectivism with respect to what is proper
or improper. Natural law opposes the idea that moral law is relative,
subjective, and changeable.
jurisprudence
[1]
1Dworkin,
Ronald M., “Lord Devlin and the Enforcement of Morals”(1966). Faculty
ScholarshipSeries .
Paper 3611’ Yale Law School.
Introduction:
Different jurists had different opinions and different views of law. One
particular view was to analyze law
in terms of legal rules. It should be noted that legal rules are imperative or
prescriptive, rather than indicative or descriptive. In. other words, legal
rules are not concerned with what happens, but with what should be done. The
legal rules again differ from commands, because commands order the doing of one
particular act, while legal rules deal with general and repeated activity. In
this sense, legal rules resemble technical rules or directives for achieving
certain results. Thus, for instance, certain rules may provide the mode of
preparing a good dish. Legal Rules are more like the rules of a recipe than
commands. But the fundamental difference between rules of recipe and legal
rules is that the legal rules are not merely an instrument for producing
certain kinds of society, but the legal rules and their observations are
themselves part of such society.
It has also been pointed out that observing a rule is different from
merely acting out of habit. What is done out of mere habit is done without any
sense of obligation to do it, while observance of a legal rule is merely
external. Internally, it is coupled with an attitude that such external
behaviour is obligatory. Therefore, a legal right can be defined as one, which
prescribes a code of conduct, which is done with the feeling that such conduct
is obligatory. This feeling is not a psychological illusion peculiar to the
person observing the rule. A person who has to act according to a rule will
also expect others to act according to the rule. This sense of obligation
arises
neither out of mistake nor out of illusion. .
The above is, in short, Professor Hart's theory of law, as set out in
his treatise, The Concept of Law.
Hart's definition of law can be stated as follows: “Law consists of rules
which are of broad application and non-optional character, but which are at the
same time amenable to formalization, legislation and adjudication.”
Hart calls these rules of law primary rules, which would simply impose
duties. But the unity among these rules is brought about by secondary rules,
which are power-conferring rules. For example, the Indian Penal Code consists
of primary rules, while the Constitution of India consists of secondary rules,
as it consists of a number of power-conferring rules.
Legal rules, as defined above, must be distinguished from rules of
games, clubs, and societies, and moral rules, which are also observed with a
sense of obligation. The first difference between moral rules and other rules
(including legal rules) is that the latter can be amended and can be subject to
adjudication, while morality can be amended by an authoritative body; nor is it
susceptible to the process of adjudication.
Secondly, legal rules and moral rules can be distinguished from rules of
games, etc. Obedience to legal and moral rules is general in application, while
the rules of games are applicable only to a limited number of persons who are
playing the game. Again, one could withdraw from the game, the club or the
society, while in the case of legal and moral rules, such withdrawal from a
State or society is practically impossible.
Comparison of Hart’s Analysis and Austin’s Theory
Hart's analysis of legal rules is different from the Austinian concept
of legal rules. According to Austin, the command of the State is imposed and
one is obliged or compelled to obey it. According to Hart, a legal rule is
observed because one has a sense of obligation to observe it. Law prescribes,
not a command, but a standard of conduct. This standard is adhered to, not only
because there is a sense of obligation to adhere to it, but also because there
is, an expectation that others have some obligation to adhere to it. Therefore,
even a person who cannot be compelled to obey the law is still reckoned as
having an obligation to obey. According to this view, law is concerned with
obligation rather than coercion.
Conclusion: According to Hart, the basic rules of a legal system do not consist of
something which one has to assume or
postulate. Rather, it is itself a rule accepted and observed in a particular
society.
H.L.A. Hart’s The Concept of Law in details
Herbert Lionel Adolphus Hart (1907-92) was a British philosopher who was
professor of jurisprudence at the University of Oxford. His most important
writings included Causation in the Law (1959, with A.M. Honoré), The Concept of
Law (1961), Law, Liberty and Morality (1963), Of Laws in General (1970), and
Essays on Bentham (1982).
The Concept of Law (1961) is an
analysis of the relation between law, coercion, and morality, and it is an attempt to clarify the question of whether all
laws may be properly conceptualized as coercive orders or as moral commands.
Hart says that there is no
logically necessary connection between law and coercion or between law and morality. He explains
that to classify all laws as coercive orders or as moral commands is to oversimplify the relation between law, coercion,
and morality. He also explains that to conceptualize all laws as coercive
orders or as moral commands is to impose a misleading appearance of uniformity
on different kinds of laws and on different kinds of social functions which
laws may perform.
He argues that to describe all laws as coercive orders is to mischaracterize
the purpose and function of some laws and is to misunderstand their content,
mode of origin, and range of application.
Laws are rules that may forbid individuals to perform various kinds of
actions or that may impose various obligations on individuals. Laws may require
individuals to undergo punishment for injuring other individuals. They may also
specify how contracts are to be arranged and how official documents are to be
created. They may also specify how legislatures are to be assembled and how
courts are to function. They may specify how new laws are to be enacted and how
old laws are to be changed. They may exert coercive power over individuals by
imposing penalties on those individuals who do not comply with various kinds of
duties or obligations. However, not all laws may be regarded as coercive
orders, because some laws may confer powers or privileges on individuals
without imposing duties or obligations on them.
Hart criticizes the concept of law that is formulated by John Austin in
The Province of
Jurisprudence Determined (1832) and that proposes that all laws
are commands of a legally
Laws that impose duties or obligations on individuals are described by
Hart as "primary
rules of obligation." In order for a system of primary
rules to function effectively,
"secondary
rules" may also be necessary in order to provide an authoritative
statement of all the
primary rules.
Secondary rules may be necessary in order to allow legislators to make
changes in the primary rules if the primary rules are found to be defective or
inadequate. Secondary rules may also be necessary in order to enable courts to
resolve disputes over the interpretation and application of the primary rules. The secondary rules of a legal system may
thus include 1) rules of recognition,
2) rules of change, and 3) rules of adjudication.
In order for the primary rules of
a legal system to function effectively, the rules must be sufficiently clear
and intelligible to be understood by those individuals to whom they apply.
If the primary rules are not sufficiently clear or intelligible, then
there may be uncertainty about the obligations which have been imposed on
individuals.
Vagueness or ambiguity in the secondary rules of a legal system may also
cause uncertainty as to whether powers have been conferred on individuals in
accordance with statutory requirements or may cause uncertainty as to whether
legislators have the authority to change laws. Vagueness or ambiguity in the
secondary rules of a legal system may also cause uncertainty as to whether
courts have jurisdiction over disputes concerning the interpretation and
application of laws.
Primary rules of obligation are not in themselves sufficient to
establish a system of laws
that can be formally recognized, changed, or adjudicated, says Hart. Primary
rules must be
combined with secondary rules in
order to advance from the pre-legal to the legal stage of
determination. A legal system may
thus be established by a union of primary and secondary rules (although Hart does not claim
that this union is the only valid criterion of a legal system or that a legal system must be described
in these terms in order to be properly defined).
Hart distinguishes between the
"external" and "internal" points of view with respect to
how the rules of a legal system may be described or evaluated. The external point of view is that
of an observer who does not necessarily have to accept the rules of the legal
system. The external observer may be able to evaluate the extent to which the
rules of the legal system produce a regular pattern of conduct on the part of
individuals to whom the rules apply. The internal point of view, on the other
hand, is that of individuals who are governed by the rules of the legal system
and who accept these rules as standards of conduct.
The "external" aspect of rules may be evident in the regular
pattern of conduct which may occur among a group of individuals. The
"internal" aspect of rules distinguishes rules from habits, in that
habits may be viewed as regular patterns of conduct but are not usually viewed
as standards of conduct. The external aspect of rules may in some cases enable
us to predict the conduct of individuals, but we may have to consider the
'internal' aspect of rules in order to interpret or explain the conduct of individuals.
Hart argues 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 evaluated. 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 minimum
requirements which must be satisfied in order for a legal system to exist: 1) private citizens must generally obey the primary rules of obligation,
and 2) public officials must accept the secondary rules of recognition, change,
and adjudication as standards of official conduct. If both of these
requirements are not satisfied, then primary rules may only be sufficient to
establish a pre-legal form of government.
Moral
and legal rules may overlap, because moral and legal obligation may be similar
in some situations. However, moral and legal obligation may also differ in some
situations. Moral and legal rules may apply to 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 same way that legal rules can be changed.
According to Hart, there is no
necessary logical connection between the content of law and morality, and that
the existence of legal rights and duties may be devoid of any moral
justification. Thus, his interpretation of the
relation between law and morality differs from that of Ronald Dworkin, who in Law’s Empire suggests that every legal
action has a moral dimension. Dworkin rejects the concept of law as acceptance
of conventional patterns of recognition, and describes law not merely as a
descriptive concept but as an interpretive concept which combines jurisprudence
and adjudication.
Hart defines legal positivism as
the theory that there is no logically necessary connection between law and
morality. However, he describes his own
viewpoint as a "soft positivism,"
because he admits that rules of recognition may consider the compatibility
or incompatibility of a rule with moral values as a criterion of the rule’s
legal validity.
Legal positivism may disagree with theories of natural law, which assert
that civil laws must be based on moral laws in order for society to be properly
governed. Theories of natural law may also assert that there are moral laws
which are universal and which are discoverable by reason. Thus, they may fail
to recognize the difference between descriptive and prescriptive laws. Laws
that describe physical or social phenomena may differ in form and content from
laws which prescribe proper moral conduct.
Hart criticizes both formalism
and rule-scepticism as methods of evaluating the importance of rules as
structural elements of a legal system. Formalism
may rely on a rigid adherence to general
rules of conduct in order to decide which action should be performed in a
particular situation. On the other hand, rule-scepticism may not rely on any
general rule of conduct in order to decide which action should be performed in
a particular situation. Formalism may produce such inflexibility in the rules
of a legal system that the rules are not adaptable to particular cases.
Rule-scepticism may produce such uncertainty in the application of the rules of
a legal system that every case has to be adjudicated.
International law is described by
Hart as problematic, because it may not have all of the elements of a
fully-developed legal system. International
law may in some cases lack secondary rules
of recognition, change, and adjudication. International legislatures may not
always have the power to enforce sanctions against nations who disobey
international law. International courts
In any legal system, there may be cases in which existing laws are vague
or indeterminate and that judicial discretion may be necessary in order to
clarify existing laws in these cases. Hart also argues that by clarifying vague
or indeterminate laws, judges may actually make new laws. He explains that this
argument is rejected by Ronald Dworkin, who contends that judicial discretion
is not an exercise in making new laws but is a means of determining which legal
principles are most consistent with existing laws and which legal principles
provide the best justification for existing laws.5
Dworkin says in Law’s Empire that legal theory may advance from the
"preinterpretive stage" (in which rules of conduct are identified) to
the "interpretive stage" (in which the justification for these rules
is decided upon) to the "postinterpretive stage" (in which the rules
of conduct are reevaluated based on what has been found to justify them).6 A
complete legal theory does not merely identify the rules of a legal system, but
also interprets and evaluates them. A complete legal theory must consider not
only the relation between law and coercion (i.e. the "force" of law),
but the relation between law and rightfulness or justifiability (i.e. the
"grounds" of law). Thus, Dworkin argues that a complete legal theory
must address not only the question of whether the rules of a legal system are
justified but the question of whether there are sufficient grounds for coercing
individuals to comply with the rules of the system.
CRITICISM ON HART’S CONCEPT OF
LAW
1. Lord Llyod – Hart’s description of a
developed legal system in terms of a union of primary and secondary rules is undoubtedly of value as a tool of
analysis and he wonders whether too much is not being claimed for the new view
of some of the old problems. (Hart is aware – suggest that there other element
is LS, i.e. “open texture”. Lord Llyod asks the question whether it is possible
to reduce all rules of the legal system to rules, which impose duties, and
rules, which confer powers.
2. RONALD DWORKIN (born in 1931) took chain from
HART has criticized HART for representing
law as a system of rules and for suggesting that, at certain points, the judges
use their discretion and play a legislative role.
THE view of Dworkin is that a conception of law as a system of rules fails
to take account of what he calls “principles”.
He also maintains that judges do not have discretion as even in hard cases,
there is only one “right answer”
The contention of Dworkin is
that principles are not distinguished from rules in a number of ways
1. Principles such as the standard
that no man may profit by his own wrong, differ from rules “in character of
direction they give.”
2.While rules are applicable in all
or nothing, principles state “a
reason that argues in one direction but do not excessitate a particular
decision.
To quote him:
“All that is meant when we say
that a particular principle is a principle of our law, is that the principle is
one which officials must take into account, if it is relevant as a
consideration inclining in one direction or another.”
3. Principles have a dimension of weight or importance which rules do not have.
Dworkin asserts that whilst a system of rules must be inherently
consistent and coherent, devoid of inner contradictions; to the contrary
principles and policies do tolerate contradictions without necessarily breeding
terminal chaos to a legal system.
1.Dworkin’s “Rights Thesis of Law”
which views the legal system of rules but one encompassing social policies and
principles.
2.Dworkin is convinced that the
judicial function is to find the “right answer” by assessing rules, principles
and polices. Thus the role of the Judge is wider and grander beyond the “false”
dichotomy of law vis-Ã -vis morals which, it is claimed, tends to restrict the
judicial function.
jurisprudence
