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hla hart law

Those theories that aim at establishing the impartiality of legal determinations seek to exclude the use of preferences from that decision-making process: establishing what the law requires, they say, is a decision-making process which doesn’t take preferences into account. What’s more, deducing the ‘rule of recognition’ from the actions of these people does not involve any complicated evaluative or controversial reasoning: according to Hart, this is a straightforward factual observation as to where people go when they look for legal rules.7 An International Journal of Legal and Political Thought Vol. H. L. A. Hart offers an alternative to retributive thinking about criminal punishment that nevertheless preserves the central distinction between guilt and innocence. (Indeed it has been suggested that Hart’s idea that the ‘rule of recognition’ is a conventional standard has linguistic conventions as its very model.4) Thus, just as the correct meaning of words (or the correct test for using them) is supposedly constituted by conventional agreement among speakers, so is the ‘rule of recognition’ (or the correct test for the legal validity of rules) constituted by agreement among those who are practising law. [16], Hart states that the remedy for the uncertainty of the regime of primary rules is a rule of recognition. O.P. For criticisms of Professor Harts use of the "notes" device, see Blachshield, Hart's Concept of Law, 68 ARcHrv FDr REcarrs UND SOZIAL-PHmOSOPHIE 329, 331 (1962). Admittedly, there are cases where no convention governs the applicability or inapplicability of a general term (no convention on the use of the term ‘vehicle’ establishes whether a motorised wheelchair is or is not a ‘vehicle’). He also asserts this claim on the grounds that International law rules resemble the primary rules of obligation in a primitive society. This means, for Hart, that legal rules follow a similar pattern – since their applicability is a function of the applicability of the general terms appearing in them. HLA Hart and the making of the new natural law theory Jurisprudende. According to Hart, the law is a collection of rules whose status as legal rules is a consequence of some official action (they are, for the most part, declared by a legislature or by courts); and the application of these legal rules involves a determination of whether a case falls inside or outside the conventional meaning of the words appearing in them. He means that the ‘rule of recognition’ exists as the test for valid legal rules because people accept it as a test and abide by it: it is, in other words, a conventional standard. Hart is the focus of most of Ronald Dworkin's attacks in part because of Hart's great influence. The Concept of Law presents Hart's theory of legal positivism—the view that laws are rules made by humans and that there is no inherent or necessary connection between law and morality—within the framework of analytic philosophy. Hart was the foremost Anglophone philosopher of law in the twentieth century, and he was rivaled only by Hans Kelsen as the foremost philosopher of law in any language during that century. The Concept of Law. Here, partiality may rear its head: preferences may certainly influence some of these determinations. He criticized the judgment of the court in the Nazi Informer Case and maintained that law and morality are two different concepts. Only gold members can continue reading. ; 7 Hart (1994: 26). Nevertheless, to repeat, legal interpretation (establishing what the law says – not what it should say) is an activity that is necessarily impartial; and the majority of cases involve legal interpretation. Forty years on, its arguments are as powerful as ever. “Hart's theory of law, because it attempts to explain the binding force of legal obligation in the purely factual terms of the existence within a legal system of rules, a departure from which is met with serious social pressure, is not any more able to provide a basis or meaning for the "ought" of legal obligation or of law than is the command and sanction theory of Austin.” There are gaps in the law. Hart is not oblivious to this obvious point; he explicitly acknowledges the problem when discussing what he calls ‘very general’ classificatory terms whose applicability is usually controversial: ‘Of course, even with very general standards there will be plain indisputable examples of what does, or does not, satisfy them. When such instances occur, no convention establishes the correct legal determination, and the legal interpreter must resort to arguments about the pros and cons of finding the term, and thereby the rule, applicable. Reading HLA Hart's 'The Concept of Law' [d'Almeida, Luís Duarte, Edwards, James, Dolcetti, Andrea] on Amazon.com. It is from this internal sense that the law acquires its normative quality. When such cases occur in the application of legal rules, we shall have to go beyond what the law says: we shall have to appeal to considerations external to the law in deciding the applicability of the rule, and no answer will be correct or incorrect as far as the law or existing legal requirements are concerned. Now Hart concedes that the ‘rule of recognition’ is not explicitly articulated, and certainly not in its entirety: people are not in the habit of citing a ‘rule of recognition’ when they identify legal rules.5 Nevertheless, says Hart, we know the rule exists, and we know what it requires, because this is ‘shown in the way in which particular rules are identified, either by courts or other officials or private persons or their advisors’.6 One can detect the ‘rule of recognition’ by observing the way in which people (private individuals, lawyers, judges, state officials) identify legal rules: people look for legal rules in certain ‘sources of law’ (the pronouncements of the legislator, the decisions of courts, the promulgations of administrative agencies), and in doing so they follow the ‘rule of recognition’ – thereby making it known. 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