Jurisprudence, Spring 08, Nowlin
Used in conjunction with a variety of materials, including Concept of Law, HLA Hart, and Philosophy of Law
· Three Main Schools of Law
o Natural Law
§ Law has a divine origin but can be attained through reason
§ Man made laws should conform to this divine law, if not the laws are unjust and therefore invalid
§ Deals with objective principles of morality and justice
§ Examples: Declaration of Independence, Blackstone, Aquinas, Augustine
· Legal Positivists
o Reaction to natural law theory
o Law is Human made
o More concerned with the existence of law than the inherent justness or morality of the law
o Empirical Analysis
o Command Theory: laws are merely orders backed by threats
o Hart is a modern legal positivists, more concerned with the empirical analysis than acceptance of the command theory
o Ex. Bentham, John Austin, Hart
· Legal Skeptics
o Laws are merely what judges decide they are
o Codes/statutes may have some predictive quality, but they are nothing more and judges can decide what ever they want.
LEGAL POSITIVISTS: H.L.A. HART and THE CONCEPT OF LAW
· What Project Does Hart Believe He is Taking on?
o Linguistic Analysis
§ If we get a better understanding of words then we understand
§ the concepts in words
§ and social phenomenon
o Attempt at conceptual clarification thru linguistic analysis
o What does it mean to do something because of a rule to or to follow a rule
o Empirical Factual Inquiry into the law as it currently exist
§ Descriptive Sociology
§ What is the law we see around us
· What Motivates the Project? To clarify Current confusions regarding “What is Law?”
o Law can be found by focusing on linguistic analysis looking at words and social phenomenon using an empirical analysis
o Evidence of Confusion
§ Paradoxical questions seem strange: “If Constitutional law isn’t really law is it morality?”
§ Yet smart people say these things though they wouldn’t ask the same questions about medicine
§ Hart wants to look at these statements and ideas and find out what motivates them, what is the insight behind these statements with the suspicion that this may be an attempt to describe the law with exaggerations as they look at different elements rather than the whole picture.
§ He is not referring to the areas of law with no confusion
o Areas of Law with No Confusion
§ Criminal Law which regulates behavior
§ Tort Law
§ Wills and Contracts
§ Courts and Legislatures
§ International Law
o 3 Perennial issues which have motivated the questions
§ Obligation or authority (positivists): in what sense does the law tell us what to do and punish us.
§ Obligation (Natural Law Theory): morality or justice. If you have to do what is moral then you must follow law as law is about what is moral. Overlap of content between what is moral and what is illegal.
§ Rules. Do they exists? Are there different kinds of rules? Difference between rules that impose duties and those that create legal relationships. One is about punishment, the other is about form/creation. Habit v. Rules. Confusion between the things we do as a rule and the things we do because of a rule. Is this a psychological feeling or a need to do something or just a habit? (Legal Realist). Is law, statutes, really the rules that should count as law or are court decisions the law?
o What Questions Hart will answer
o Will not give a dictionary style definition of what is law
o Will not categorize law into genus or families
o Will describe the central elements of the modern legal system, clarify the relationship between law and coercion, law and morality, and law and rules.
· Chapter 2: The Command Theory
o Basic Definition
§ Deals with the revolutionary and reactionary aspects of the legal skeptics
· If the law is revolutionary, then people don’t have to follow
· If the law is reactionary, then people follow
o Hart’s Factors for Command Theory
§ Orders are general with respect to conduct and class of persons. State issues the general order.
§ Laws are standing orders/ sense of persistence: enforced all the time with standing sanctions.
§ Conditions for standing orders?
· General habit of obedience- some people must be willing to obey without a threat to help the sovereign enforce over others
· Some who obey without the sanction
· Help to enforce the sanction
· Supreme within the territory
· Independent from any other legal system
· Sovereign has no general habit of obedience to anyone else and others have a general habit of obedience to the sovereign.
§ Example- Gunman at Large
· “What is the state, but a gunman at large?” St. Augustine
· This example equates the state/sovereign to a lone gunman who points a gun at another’s head and orders them to comply with his (gunman’s) orders, i.e the order backed by a threat of violence.
· Problems with the Example
o Does not consider the fact that the law must be considered as applicable to all people generally. The example is too narrow. Laws are more broad
o Does not explain why so many people that obey the laws simply out of a habit of obedience rather than the threat of sanction.
o Gunman is the sovereign, so how can the sovereign threaten to shoot himself as an order to obey the laws?
§ What is the deepest insight in the command theory from a practical and historical standpoint?
· Even in Western democracies, if you refuse to recognize the authority of the government you end up dead or in prison.
§ Hart is a positivist and believes that the project of jurisprudence is thinking about the facts of law in a conceptual framework that acknowledges the framework around us. Hart disagrees with Austin in the gunman/sovereign approach to understanding law.
· Chapter 3: Dismantling the Command Theory
o Hart Identifies three major problems with Austin’s Theory:
§ Types of Rules
· Duty imposing Rules
o Akin to orders backed by threats
o Rules and standards broken lead to sanctions
o About deterrence
· Power imposing Rules
o Private: the ability to make wills and contracts
o Public: creates institutions of government and the court systems
o About guidance
o Rules and standards broken lead to nullity
o About creating legal relationships.
§ The simple model of sovereign issuing orders backed by threats is completely wrong. Analysis Distorts the Content of Law
o Content of Laws: com
on the sovereign’s power
· Hart notes that monarchs are bound by constitutional limits as are democracies.
o The Sovereign behind the Legislature
§ Electorate: people behind the sovereign
§ Habits: acceptance of a rule
§ In a democracy, people might be said to rule over themselves
· Chapter 5: Hart’s Theory
o Hart’s Theory Contrasted with
§ Focus on Social Rules
§ Particularly on rules and their acceptance
§ Primary and Secondary rules: primary rules impose obligations and duties and secondary rules confer power
§ Having an obligation to follow the guide of the law.
§ Internal focus on why people comply with rules
§ One can have a legal obligation w/o a sanction
o Austin’s Theory
§ Focus on social rules
§ Particularly on habits and obedience
§ Commands and orders backed by threats (looks a lot like primary rules)
§ Obliged due to sanctions
§ Superficial- focuses on external not internal
o The Basic Theory
§ Key to the science of jurisprudence is the union of primary rules and secondary rules. They help understand our concept of authority and how law is related to morality and order.
o The idea of Obligation
§ Distinguish between being obliged to do something (command theory) and having an obligation to do something (Hart’s Theory)
· Gunman Theory
o Focus on the likelihood of a sanction which induces compliance
o External point of view- just looks to external behavior-
o If you can predict a severe enough sanction the party will comply
§ Having an obligation
· Legal obligation
o Focus on social groups accepting a rule
o Internal point of view- looks to social groups POV that the rule is a guide for behavior
o Social importance of the rule decides if it is duty conferring
o Sacrifice is required. If it doesn’t require this it is a habit, not duty
o Compliance is insured by pressure, either legal or social
o The Union of Primary and Secondary Rules
· This is the difference between a primitive and a complex legal system.
· Secondary Rules are rules about the primary rules
o Secondary Rules missing under Austin’s approach
· Rule of Recognition
o Tells us what are the primary rules
o Cures uncertainty as to where primary rules arise
· Rule of Change
o Allows changes to be made to the primary rules
o Fixes the static character of primary rules
· Rule of adjudication
o Remedy for inefficiency in the primary rules
o Identifies who adjudicates rules and the procedure to follow