Preview

HLA HART

Good Essays
Open Document
Open Document
714 Words
Grammar
Grammar
Plagiarism
Plagiarism
Writing
Writing
Score
Score
HLA HART
Hart brought the tools of analytic, and especially linguistic, philosophy to face the problems of legal theory. But, if we look at the concept that he brought it is same with the Pure Theory of Law that being formulated by Austrian philosophers Hans Kelsen, thought Hart rejected a certain idea or distinctive feature of Kelsen’s theory. Many of Hart's former students became important legal, moral, and political philosophers, including Brian Barry, John Finnis, John Gardner Kent Greenawalt, Neil MacCormick, William Twining, Chin Liew Ten, Joseph Raz and Ronald Dworkin.
The Concept of Law is the most famous work of HLA Hart; it was published in the year 1961. This book developed a lot about what we should understand about legal positivism and what is the idea that he brought into the legal law. Firstly, the idea that hart developed in this book was about a different or distinction between primary and secondary legal rules. It explains what is mean by primary and secondary legal rules. Apart from that Hart also give out his own opinion and make a critique of John Austin`s theory.
HLA Hart do not agree or takes a different view from John Austin another positivist. According to Hart Austin’s theory accounts only for one kind of rules that confer upon citizens the power to create, modify and extinguish right and obligations in other persons. As Hart points out, the rules governing the creation of contracts and wills cannot plausibly be characterized as restrictions on freedom that are backed by the threat of a sanction. For Hart, the authority of law is social. Social rule exist only because it is actually practice.
In order to understand Hart as a critical moral philosopher, it is important to understand the ideology and the analytical basis of his legal philosophy. First of all, we look at the primary rule that he explain and tell us based on his popular legal law books “The Concept of Law”. Primary rules are the rule that imposed obligation or duties. They

You May Also Find These Documents Helpful

  • Powerful Essays

    Critical Race Theory

    • 1148 Words
    • 5 Pages

    * The CLS developed a more mature historiography than that of the realists. The development of the CLS was during the time period when Realism’s idea was incorporated in the law. This idea was the external influences to the legal order had a bigger effect on the development of the law than internal abstract legal principles. The realists did not delve deeper than the mere notion that the reality has a profound effect on the law and the outcomes (solutions) of the law.…

    • 1148 Words
    • 5 Pages
    Powerful Essays
  • Powerful Essays

    PHL 612: Philosophy of Law

    • 5890 Words
    • 24 Pages

    PHL 612 Philosophy of Law [Calendar Description]: What is law? What makes something a legal norm? Should citizens always obey the law? What is the relationship between law and morality? This course will explore competing theories of law, such as natural law and positivism, and touch on crucial debates over civil disobedience, purposes of punishment, and interpretation of legal texts. It will deal with contemporary controversies over the legal regulation of human behaviour, for instance in matters of sexual morality.…

    • 5890 Words
    • 24 Pages
    Powerful Essays
  • Good Essays

    In the context of Jurisprudence, the Separation Thesis ideology, the view of Legal positivists, asserts that while legal and moral obligation are separate and there is no necessary connection between law and morals, legal and moral obligation sometimes overlap and it may be necessary to examine the standard of rules as it relates to our obligation to obey them, although, there is no rule to obey laws. 1 Contrary to the view of Legal positivists, the natural law theory denotes that rules of law are derived from principles protecting an individual’s rights and principles of morality.2 In other words, the fundamental criteria for validity of the law is based on principles of justice and morality.3 This essay will briefly examine the origin of the Separation Thesis (the “Thesis’), analyse the Thesis with reference to H. L. A Hart’s views, present opposing views and argue that the claim of the Separation Thesis, that there is no necessary relationship between legal and moral obligation is flawed. Finally, it will provide a conclusion for the arguments set forth.…

    • 576 Words
    • 3 Pages
    Good Essays
  • Good Essays

    Torture and Ethics

    • 1450 Words
    • 6 Pages

    Himma Kenneth (2009) Internet Encyclopedia of Philosophy, Philosophy of Law Retrieved on 4-14-2013 from http://www.iep.utm.edu/law-phil/…

    • 1450 Words
    • 6 Pages
    Good Essays
  • Powerful Essays

    Trayvon Martin Case Study

    • 1244 Words
    • 5 Pages

    cast the case in such a light, however, the basis for law itself – which we have already…

    • 1244 Words
    • 5 Pages
    Powerful Essays
  • Powerful Essays

    H.L.A Hart defines law on two different levels; primary and secondary. Primary rules are driven by a natural demand for conformity and based on behaviors alone, typical of a pre-legal system, such as a community or tribe. Secondary rules however, are directed at primary rules, and supplement them by alleviating the uncertain, static, and inefficient characteristics of a pre-legal system. According to Hart, the two rules together form the foundation…

    • 1382 Words
    • 6 Pages
    Powerful Essays
  • Better Essays

    China Legalism

    • 19738 Words
    • 79 Pages

    It is widely held that there are no indigenous roots in China for the rule of law; it is an…

    • 19738 Words
    • 79 Pages
    Better Essays
  • Best Essays

    The constitution is the document that binds American citizens to uniformed rule. Granted states may vary their decisions for a vast array of laws, the focus of my argument will be dealing with the interpretation of the nation’s most powerful document. The two stances of interpretation I will be addressing are those of Ronald Dworkin and Antonin Scalia, who are known for disagreement amongst their constitutional views. On the one hand there is Scalia, who labels his position “textualism”, where judges are encouraged to stray away from discretion and make clarifications to vague statutes in a commonsensical…

    • 3337 Words
    • 14 Pages
    Best Essays
  • Best Essays

    Ethics and Social Justice

    • 1635 Words
    • 7 Pages

    Dyzenhaus, D., Moreau, S. R. and Ripstein, A. (2003). Law and Morality: Readings in Legal…

    • 1635 Words
    • 7 Pages
    Best Essays
  • Powerful Essays

    Cited: Dyzenhaus, D., & Ripstein, A. (2001). Law and Morality: Readings in Legal Philosophy. 2nd ed. Toronto, On: University of Toronto Press Inc..…

    • 4054 Words
    • 17 Pages
    Powerful Essays
  • Satisfactory Essays

    John Q

    • 545 Words
    • 3 Pages

    Introduction: Explain the term law – What is it? Where does it come from? Discuss ‘Rule of Law’ and why law is important? Explain the term Morality – what are the sources of morality? Why is it important? What is the connection between law and morality? What is the conflict between them? Explain using an example.…

    • 545 Words
    • 3 Pages
    Satisfactory Essays
  • Better Essays

    The Foundations of Law

    • 1042 Words
    • 5 Pages

    Although Thomas Aquinas made a clear distinction between what is just and what is not, theorist, H.L.A. Hart took a different approach in understanding this relationship. In a more complex understanding, H.L.A. Hart wrote his book, A Concept of Law, to clarify his reasoning of legal positivism. There are three main foundations to legal positivism to understand if a law is just or not. The first foundation is that law must be separated from morality. When trying to understand a law one must separate their own ideas of what the law is from what the law ought to be. Having people bring there own morals into understanding laws will make the laws unjust when applied to the people. The second foundation of legal positivism is the command theory where laws are backed by threat. In order for a law to be a law it needs a command, sovereign, and a sanction for it…

    • 1042 Words
    • 5 Pages
    Better Essays
  • Powerful Essays

    The researcher gives emphasis on substantive law rules, doctrines, concepts and judicial pronouncements. He organizes his study around legal propositions and judicial pronouncements on the legal propositions of the Courts, and other conventional legal materials, such as parliamentary debates, revealing the legislative intent, policy and history of the rule or doctrine.…

    • 1414 Words
    • 5 Pages
    Powerful Essays
  • Better Essays

    Cited: 1. Andreas, Teuber. “Philosophy of Law Had-Out Page”. Brandeis University. 5 Feb. 2004: Web. 18 March, 2013.…

    • 1761 Words
    • 8 Pages
    Better Essays
  • Powerful Essays

    Jurisprudence

    • 110160 Words
    • 441 Pages

    The start of the nineteenth century might be taken as marking the beginning of the positivist movement. It represented a reaction against the a priori methods of thinking that characterised the preceding age. Prevailing theories of natural law shared the feature of turning away from the realities of actual law in order to discover in nature or reason principles of universal validity. Actual laws were then explained or condemned according to these canons. Unverified hypotheses of this sort failed to satisfy the intelligence of an age nurtured in the critical spirit of new scientific learning. Scrutiny of natural law postulates had damaging results, for they were shown to be without foundation or else the products of extrapolation. The term ‘positivism’ has many meanings, which were tabulated by Professor Hart as follows: (1) Laws are commands. This meaning is associated with the two founders of British positivism, Bentham and his disciple Austin, whose views will be considered in this chapter, (2) The analysis of legal concepts is (a) worth pursuing, (b) distinct from sociological and historical inquiries, (c) distinct from critical evaluation. (3) Decisions can be deduced logically from predetermined rules without recourse to social aims, policy or morality. (4) Moral judgments cannot be established or defended by rational argument, evidence or proof. (5) The law as it is actually laid down, positum, has to be kept separate from the law that ought to be. Whatever meanings are ascribed to positivism, it is contrasted with natural law, which also has different meanings. In view of these differences one needs to be chary of classifying any particular writer as positivist or naturalist. However, subject to that general caution, it would be safe to assert that the authors discussed in this and the following chapter are commonly regarded as positivists. What matters are their views on particular…

    • 110160 Words
    • 441 Pages
    Powerful Essays

Related Topics