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How does the concept of a rule differ from that of a command? Hart objected to Austins command theory on the grounds that it failed to encompass the variety of laws. He likens the theory to the role of the gunman in a bank and tries to establish between the gunmans orders and those made by law. his point is simply that the bank robber has no authority over the bank clerk.

He makes a distinction between being obliged and being under obligation, the latter involving a concept of duty whether or not a sancation is expected to be applied.

Law is unlike the corecis demands of a gunman, addressed generally and even applicable to those enacting it Some laws do not impose duties but create powers Not all legal rules emerge from a comman process at all The idea of unlimited sovereignty fails to take into account the continuity of law

The rules form a normative regulatory structure which exists as a system, rather than a pattern of discrete commands.

How many types of rules does Hart offer and what does each one do? His theory distinguishes between primary duty-imposing rules and secondary power-conferring rules: Primary duty-imposing rules such as the rules of criminal law or the law of tort dont murder

Secondary power conferring rules such as the laws that faciliate the making of contracts. Trusts, wills etc or which lay down the rules govern the composition and powers of the courts, legislatures and other official bodies altering the laws on murder

Three types of secondary rule: Rules which confer competence on officials to pass judgment in cases of wrongs and to enforce the law for example by ordering the payment of damages or by depriving someone of his liberty these are called rules of adjudication. Primitaive legal system would be inefficient: if someone breaks a rule there would be no one to have the comptenece. Rules of change these have a lower-order or private dimension. These are rules which confer on ordinary individuals the power tp produce change din the legal relationships they have with others. Primitive legal system, then the rules that exist depend upon peoples convergent practices. Rule of recognition this constitutes the skeleton of the legal system legal system can only be said to exist if it is effectively in force. In a primitive legal system we would not be able to distinguish between a legal rule and normal rule.

According to Hart a legal system can only be said to exist if two minimum conditions are met: These are that those rules of behaviour which are valid according to the systems ultimate criteria of calid

In what sense is the Rule of Recognition conventional? How is it possible for it to be both law and fact?

Prvides authoritiative criteria for identifying valid law within a particular legal system. He points our that such a rule is often not expressly stated, but can be shown by the way in which particular rules are identified by the courts and ither legal officials. Hart telsls us that the rule is ultimate rule it can neither be valid or invalid. E compares it to the metre bar in paris, the ultimate test of correctness of all measurement in metres, which we assume is itself correct. He focuses on whether the rule of recognition is accepted by those who operate the system.

rule of recognition: to understand this firstly examine his cricisms of the Austinian view of sovereignty- he points out that a mere habit of obedience cannot explain the continuity of law.

conventional aspect: arises through a practice

What is the internal point of view? Harts view is that normativity hinges on human attitudes to human action. Law depends not only on the external social pressures but also on the inner point of view that such beings take towards rules conceived as imposing obligation. Thus it is necessary for society to not only obey rules but also to consciously to view them as common standard of behaviour and violoations of which are to be cricised. He thinks in stable and mature systems however it is sufficnet if only the officials have this internal point of view. In a system where a society has undergone a big constitutional chance/revolution then it is desirable that citizens also experience the internal point of view

The internal aspects of rules used to distinguish them from habits: by contrast with those like austin, hart denies the possibility of explaining rules solely b reference to external patterns of behaviour.

Harts explanation of social rules thus dependant on a hermeneutic approach i.e. concerns with understanding the significance of human actions to those who do them and with how they interpret the actions of others.

What does Hart consider this point of view to be? there should be a critical reflective attitude to certain patterns pf behaviour as a common standard, and that this should display itself in criticism by people he meant officials.

Explain, by way of examples, Harts distinction between the core and

penumbra of legal concepts.

This will get us into D. vehicles in the carpark. Officials as a legal matter should

there is a discretion in law i

In your view, do we, as citizens, have a duty to follow conventional practices? Do officials?

What is the distinction Dworkin draws between rules and principles?

Principles differ from rules in other fundamental ways. They do not apply in an all-or-nothing fashion, as rules do. Rules are either applicable or not; principles have a dimension of weight. Legal rules cannot logically conflict if they seem to do so one rule must be an exception to the other and can be written into it. Otherwise one of the rules must be invalid. But there may be conflicting principles applicable in the same case. The task of legal interpretation then involves weighing the principles against each other as they relate to the case in hand. One might consider equitable principles as example. The maxim equity regards as done that which ought to be done, equity will not perfect an imperfect gift and equity will not allow a statute to be used as an instrument of fraud might suggest different results when applied to the same case. The judges task would be to assess their relative weight in the particular circumstances, so as to reach a conclusion by applying them.

In Riggs v. Palmer (1889), a New York court decided a case in which a grandson who murdered his grandfather was to collect the inheritance. The court found that he could not inherit, even though there were no written statutes to support the decision. Instead, the court appealed to moral reasoning, citing the principle that no one should be permitted to profit from his own wrongdoing. This decision was to become a landmark for many other cases

In another case, Henningsen v. Bloomfield Motors, Inc. (1960), a New Jersey court, finding no applicable rules, decided that automobile manufacturers could not claim limited liability for defective parts and the damages caused by them. The court based its decision on the principle that automobile manufacturers have a special obligation because, among other reasons, cars are so essential.

A principle, Dworkin says, is a standard that is to be observed because it is a requirement of justice or fairness or some other dimension of morality''

Can Harts positivism account for the role of legal principles?

NO.

The rule of recognition can only identify rules and not legal principles. Accrding to Dworkin, in a hard or unclear case the judge does not revert to policy and acts as a law-maker rather, he applies legal principles to produce an answer base don law. if true, this severely undermines harts thoeyr.

Because they defy positivist test that neatly distinguish law from non-law they cast doubt on the whole structure of positivist explanation. And this is fundamental because, as Riggs v Palmer shows, principles control the applicability of rules. The direction of Dworkins argument at this point might suggest the conclusion that the internal-external dichotomy dividing law from non-law, or legal insiders from legal outsiders, is to be discarded. (Legal insiders are those participating in the interpretation of legal rules and principles and so involved in determining creatively what is and what is not law, while outsiders are those uninterested in or unable to play the interpretive game). Hart and obligations hart distingushies the obligation associated with positive law from a mere concergent habit and also from any psychological experience of feeling bound. Arges that not allrules are necessarily obligation imposing

Well, are principles different to morals?