Hart Descriptive sociology Rule of Recognition FACT lies the fact that judges behave in certain ways behave

have think OUGHT to behave so internal attitude from ehich one can describe rule of recognition one can apply ONCE have this basic rule of recognition THEN go on to see how that rule applies THROUGHOUT developed legal system CRITIQUE Fitzpatrick Move from pre-legal to legal NOT sociology NOT anthropology RATHER cultural bias piece of mythology that SIMPLY elevates CERTAIN sort of Western liberal democratic model of law and tries to translate to GENERAL theory of law Ideologically LINKED to W. Democratic Liberal System where people accept rules authority is legitimate NOT because of natural law theories (morally good) RATHER that somehow accept it WITHOUT need for COERCION Hart DEMOTES that coercion is crucial element to law Vilhelm about Kelsen Metaphysician of MOST decided kind theory SO metaphysical SO unreal and that has to be contrasted with Kelsens OWN view Kelsen ultimate positivist view of law SCIENTIFIC objective description of what law is at ALL times and ALL places PURE general theory of law Kelsens Theory The Pure Theory of Law 20th C Austrian After WW2 wrote new Austrian constitution HOW is it pure? o IF positivist NEEDS to be purified from mixtures of moral ideas b/c form separation thesis BOTH possible and indeed useful and in many ways necessary to distinguish what law is from what ought to be o THEN clear view to criticize law morally talk about good or bad law etc SECOND purity throughout 20th C one gets a lot of impurity b/c law once understanding of what law is muddled with politics and political reality with sociology with economics with psychology (Hart ie. map internal/external attitudes) o Somehow based on some version of psychology HOW people direct to law KELSEN NOT only does science of law have to exclude moral criteria from primary principles ALSO exclude politics, sociology, economics, ALL social sciences and OTHERS that are NOT part of actual existence of what it is

ANALYSIS Once purified THEN assess questions what are psychological connotations how orient towards it agreements/disagreements of what is in particular country (ie. appeal cases) PURITY important b/c of dangers of syncretism because things get muddled up POSSIBLE to engage in clear reasoning about law SPECIFIC TECHNIQUE OF SOCIAL ORGANISATION o Uses specific means specific attributes different from other techniques of social organization Specific Technique of Social Organization Depschologises because embedded desociolizes his ideas so DIFFERENT from all others With Hart KEY word is (law is system of rules), for Austin (command), For Kelsen it is norm o What is law law is the primary norm that stipulates the sanction What is norm A norm is a proposition something that can be stated a communication in the form of ought it is an ought NOT an is statement CRUCIAL Norms are ought propositions given WIDE meaning Ought includes factual propositions this is a lecture VALUE of statements that tend to be true or false o ROOM for interpretation qs whether one disagrees with statement and whether it is true/false of disagreeing about something VERY different Norm is ought proposition by ought includes Commands (what ought/not ought to do), permissions and authorizations (from Kelsen) what you may do/can do o All of these included in ought command, permission, authorization ALL different from is what people WILL do in fact Where do ought propositions come from Is proposition world is round WHERE from scientific techniques utilized from observations Science relies on observations THEN on links all experiences will state that it is right PROBLEM with ought WHERE come from moral proposition MAYBE come from religion DIFFICULT to think what is common from different moral outlooks as world progresses MORE cultural relativists of morals AWARE that people believe in different things Where ALL ought propositions come from Kelsen Human Wills from someones mind

o Come from someone subjectively stop writing Someones mind applied to law give me %25 of money or else I shoot you o Same as ought to NOT will do WHAT is difference between difference of gunman and tax man that states owe 25% - if not sent to prison o Difference BOTH ought propositions OR ELSE o Kelsen IF depsychologise ought proposition THEN must ask is the gunman AUTHORITSED to demand money with nemesis o Is the income tax official authorized to demand money with nemesis ANSWER Gunman NOT authorized b/c norm that says that this is illegal to threaten people unless they give money o Whilst income tax official is legal Act that authortises him to demand money with threats DIFFERENCE between 2 norms NOT subjective intention behind statements BOTH norms both with subjective wills DIFFERENCE is associated with another norm that either authrises the one and makes it legal OR that not allowed to do other which makes it illegal o What is a norm an ought proposition that does particular job it measures human behavior measure of human behavior

Measure ONCE you have a measure measure action by a norm IF can find relevant legal norms what gunman is saying is legal vs. illegal DEPSYCHOLOGISE their wills what they say what one ought to do HOW do we know that income tax official authorized Income Tax Acts passed by parliament authortised stattues that gave them authority to demand money HOW DO WE KNOE Parliament is authorized because of Constitution HERE DIFFERENCE WITH AUSTIN AND KELSE o Austin demand of sovereign o Kelsen if Parliament is sovereign sovereign command legal NOT because it is at top of hierarchy BUT because it is legally authorized whatever Parliament passes is law IF CLAUSE if passes laws following certain procedures it OUGHT to No norm can exist by itself Every norm is objective meaning of another norm Law is depsychologised objective meaning of acts of will o Act of will intentions o Austin law are commands of sovereign sovereign wills those commands full of psychological understanding RATHER than pure legal understanding and FULL of political understanding o Kelsen law is depsychologised meaning of command of sovereign OBJECTIVE meaning Kelsen

For every human action need find relevant norm THEN norm that authorizes that norm WORK way back Where work back MOST general BIGGEST norm that authorizes all others ought proposition that commands, authorizes, permits all others which make up system system of laws Basic Norm at top of pyramid o At the bottom law has beginning and an end it exists describing ACTUAL existence in time and space o STARTS with basic norm works through constitutional norms, norms of authoritsation, measure of peoples action that determine conditions in which legally entitled what they are to do THEN at bottom PRIMARY NORMS

PRIMARY NORMS Different basic norms in different systems ie. moral systems have their own, social normative system have their own, legal ONLY HAVE ONE what its content is ALL work towards measuring primary norms where law ends IMPORTANT relate to science science involves infinite regression from effect back to cause and so on and on Norms DO NOT go to infinity rather have beginning and end o Law is primary norm that stipulates the sanction o Coercive nature is absolutely essential to understanding of what law Coercion Start with basic then constitution norms dependent norms that somehow sit in middle of legal system THEN primary norms- which stipulate sanctions NOT that will be applied rather that under certain conditions OUGHT to be applied DISTINGUISH between orders Social rule systems Legal, moral and social HOW sanctions apply within this scheme PURE like mathematical sense everything fits together o Law stipulates sanctions WHAT are sanctions 2 types: Transcendental sanctions do something bad due in future psychic sanction Socially Imminent Sanctions if break criminal law sanction that is socially imminent organized way in which sanction might be applied KELSEN- primary norms are based on socially imminent sanctions NOT Hart which is on conscience HERE have all different motivations NOT the issue since psychological questions Law basic understanding of itself is that there are socially imminent sanctions that have form to be

imposed against life, liberties, property or health BTU take those form law authorizes socially imminent sanctions o Ie. breach court- judge authorize sanction against property o NO distinction between primary and secondary rules ALL lead from certain authorization all directed towards social imminent sanctions o NO normative system that is without sanctions law is specific social technique of organizing socially imminent sanctions -