Hart

General information
Legal positivism- type of law recognized by state which can be any source of law recognized
by state
- Separates law and morality
- Law does not need to derive from the validity of morality
- ∴ law can be immoral
- Austin - whether the law is good or bad
Natural law - objective standard, everyone will agree and recognize that it is the law
regardless of whether it is enacted by the state
- The relationship between the law and morality
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Hart: positivism
- Gunman situation
- One is obliged to vs. one has an obligation to do
- Obliged = force to comply otherwise there will be sanctions
- Provide rule to force the obliged
- A command, he has to do what the gunman says
- Physical sanction = law
- Primitive form of law which can be based on the
internal point of view
- Obligation = exists when there is the possibility of being sanctioned
- If there is no rule, but afraid that there could be consequences
even if it is in rare occasion
- Even when the possibility of sanction is very low and
there is the rule
- If there is no rule involve, then there is an existence of
social rules
- Can define in two ways
- Certain types of behavior: to do/ not to do
- Standard of behavior → social pressure
- Social pressure can derive from immorality
shame or guilt
- The facts of the case falls under the law: a sign to show
that he obliged to do
- Internal point of view: create by the belief of the existence of the law
- Main idea: use the standard to criticized others and use standard to see if the
punishment is legitimate or not
- Standard’s guideline: demands, admissions, criticism, punishment
conduct of social life
- Result: reason for hostility
- The law must be regulated based on the behavior of the people to judge
others ie. Prevent someone who wanted to kill other
- Such behavior can be regulated without putting justice or morality in
line
- It can be only explain by primitive society
- Gives a social pressure to society if they do not behave under the law
based on how general people adopted
 - Social pressure ≠ obligation
- Must have enough people with internal point of view to create it
- Without it = no rule at all
- People don’t only follow because of the negative consequence but also belief
that they should be internalized it (should do it)
- There are other set of rules that does not provide standard of behavior or
state organ to set up the rule
- Hierarchy of law - higher rule will void the lower rule
- Ie. talking in class = internalise standard where you think we should not talk in
class
- Either when other talk, you criticized them or teacher sanction them
- If the rule is unclear, but many people agreed then the rule could exist
- Vs. External point
- Follow that standard because afraid of the consequence but does not
internalized it
- Follow not because the fear of punishment
- Observer
- Do not understand the reason behind the rule but only follow it
because they think there is consequences
- Since Hart articulated his concept of law based on the notion of internal point
of view which is the view of persons internalizing the rules as their standards
for the appraisal of their behavior, why Hart’s concept of law is not
categorized as a natural law school’s theory?
- Hart do not based on the sovereign view, but the general people belief
on the standard that is internalized
- People might believe that it should be internalized even if it is immoral
- Based on the fat of the society whether there is legitimacy to follow the
law or not
- Law as a Union of Primary rules and Secondary rules
- Primitive society: social control who have the internal point of view (general
attitude)
- Customary (primary rules): people believe that we should follow the
standard of behavior based on practice of such standard and believe
whether it is rule or not
- Majority
- Defects:
- Legal uncertainty
- It is very hard to identify the practice of the people
- If it is uncertain → people can be sure what is
law that people follows that refers to section 4
- No procedure to answer the scope of law
- Legal stagnation
- Very slow to respond to new development or problems
- Only customary law can adapt to changes of people’s
believe
- Legal inefficiency
- No agency to say whether it is violation of the law, nor
confirms it
 - Disputes are finalized by court in the current system
- Empower individual to make authoritative
decision
- Rule regarding how judge would decide the
case + enforcement of the judgement
- To solve the Primitive defects = secondary rules
- Legal system require to have primary rules and secondary rules to be
sufficient
- Primary rules must be generally obey
- Do not need to internalize rules
- But valid according to the rule of recognition
- Secondary rules must be effectively accepted
- Officials need to internalized secondary rules as their own
standard of behavior
- To have rule over the rule
- Section 4: though it did not specifically state that it
apply the law outside the TCCC but officials refers to it
as the source of law in all area
- Content of rule of recognition also based on the
internalisation of officers
- Must be accept by officer who internalise the rules and can
internalize when the law changes
- Rule of recognition
- Rule of the group to be supported by the social pressure
- Solve uncertainty and validity of the law
- Social rule not legal rule since it is based on he fact
- Internal point of view of the officials determine whether the rule of
recognition exist of not
- Whether the law is valid or not does not depend on the efficacy unless
rule of recognition provide so
- Efficacy is a condition of existence of a legal system
- Ie. TCCC section 4
- Rule to adjudication/ enforcement
- Provide power to individual to have decision power
- Judges’ decision = authoritative which binds on parties
- Simple (king’s rule) vs. complex (conflict of rules)
- Complexity will solve based on the establishment of which rule
wins
- 2 conditions for existence of legal system
- Rules of behavior are valid which the criteria of validity must be
obeyed
- Obey regardless whether it is internalise - there can be
sanction from the effectiveness of enforcement
- Effectively accepted as common public standards of official
behavior
- Accepted by officials
- Divergence in internal point of views of officials towards rule of recognition
- When official disagree on what law is can be a crisis
 - Harris v. Donges
- Separate but equal treatment on voting right of native people
- The government and court disagree what the court
have the final say
- Government cannot appeal so they use the law to
establish a high court where court challenge the validity
of new court is invalid
- Fight stop only because of near election so they accept
with reservation due to the social pressure
- Divergence between people and officials
- People’s internal view is not the condition of legal system existence
but it must share their view as well
- It uses as a political method to keep people obey on the law
- If they did not share the same view with officials → chaos
- And with too much enforcement of law → political
movement
- Minimum content of natural law
- There is overlapping content between natural law (morality) and positive law
but not necessary that they are in the relationship
- Human survivability: Might share fundamental purpose for the survival
of mankind but the purpose might diverse (morality standard vs. order
of society)
- Ie. people aims for survival than obeying the law
- Aim to ensure human goods not natural justice for survival of human
mankind
- Does not set the criteria for the validity of law but identifies rules
necessary for the viability of social organization
- 5 truism of human nature
- Human vulnerability - need law to protect them
- Approximate equality
- Limited altruism (selflessness)
- Limited resources
- Limited understanding and strength of the will - long term vs. short
term benefit, but situation and time may lower the strength of the will
Hart vs. Austin (law create by sovereign and command)
- Austin
- 2 elements to be law
- Command: differentiate by other types of desires
- Sanction and general command
- Duty to comply: command always create duty but duty
does not always create sanction
- Sovereign: one who make command must have power and can give
sanction to those who do not follow
- Sovereign = supreme power
- Subject must have habit of obedience
- Hart criticism
- Variety of law
- Contents of law (in terms of law have power to create duty)
 - Does not create duty but only power
- Ie. criminal law and tort law (ask you not to violate
otherwise sanctions such as compensation)
- Power conferring rules
- Ie. succession law: give power to individual without any
duty
- Public power-conferring rules
- Private power-conferring rules (succession)
- Nullity: have the power but decide not to exercise
- Incompletion of action
- It did not force you to follow the law, it is an effect of not
completing conditions required by law
- Range of application (Austin claims that power cannot give duties to
ourselves)
- It creates uncertainty to have to wait until court apply to know
what is law
- Ie. parliament’s voting rights apply to them or prohibit from
going out after midnight either as public officer or private
capacity
- Mode of origin (austin claims that it must be indirect command by
sovereign)
- Indirect command and for it to be the law in its own sense
- Once 2 conditions (practice and opinion of law) are fulfilled
without having to be recognized by sovereign, can become law
- Ruled out the uncertainty on what is law
- On sovereignty (as sole source of law where it must be obeyed)
- Continuity of law and habit of obedience
- Do you need to wait until people habitually obey the law when
sovereign changes
- Persistence of law
- Will the law of previous sovereign consider as law still
- Legal limitations on legislative power (Austin claims that there is
unlimit power)
- Some legal system give limitation to law-making power
(constitution)
Hart vs. Fuller
- Fuller = natural law
- Concept
- People will decide the content of the law they subjected to based on
democracy or self governing
- Not moral based but procedural natural law
- Must be enacted correctly and the values are fulfilled
- Main idea: law leads to state of social order and providing such order
by human autonomy
- Debate
- Fuller: internal point of view not just what official’s standard of behavior to
considered what is law, it needs something more
- Loyalty and represent human achievement
 - Positivist = afraid of immoral morality
- People might claim something immoral being moral
- Hart: law was effectively applicable at that time
- People may compliment the court on the decision but court achieve
the decision by changing fact which leads to uncertainty of legal
system
- At that time people obey the law
- People would be able to accept and admit that it should be punish by
enacting the new law
- Natural law = afraid of real dangers
- People use law without considering the morality → unlimit
power
Hart vs. Dworkin
- Dworkin: natural law
- Doesn’t offer what law is but rather the theory of adjudication of law (judge
are morally obliged to rule the case justly)
- Hart:
- Ignore the existence of legal principles
- When there is no rules need to resort to legal principles
- No clear solution for difficult cases
- Hard cases:
- Hart: Judge has strong discretion (power to make law)
- But there is rule of recognition which recognised general principle as a
source
- If cases was leave it open → go to natural law which is an
unclear area
- Dworkin: judge has no strong discretion but are bound by natural law when
making judgement