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INTRODUCTION TO LAW

THE CONCEPT OF LAW HART


H.L.A. Harts The Concept of Law
Herbert Lionel Adolphus Hart - a British philosopher who was professor of jurisprudence at the
University of Oxford.
Other Writings include:
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5.

LAW

Causation in the Law (1959, with A.M. Honor)


The Concept of Law (1961)
Law, Liberty and Morality (1963)
Of Laws in General (1970
Essays on Bentham (1982).

is a Social Construction

Historical Contingent feature of Societies.


Contingent Depending on something else that might / might not happen.

Supersedes customs.
Supersedes To take the place of someone / something old.
System of Primary social rules that direct or appraise behavior together with
secondary social rules & identify changes & enforce primary rules.

DOWNSIDES:
May be beneficial to a certain group of people. Result: Risk of grave injustice.
Pretends to be an objectivity that will wield political power.
Objectivity Based on facts.
Wield to Hold.
LEGAL THEORY Neither the sole preserves nor the natural habitat of lawyers / law professors.
It is one part of general, social political theory.

LAW AS SOCIAL CONSTRUCTION:


Constructivism Refers to any antirealist, antiessentialist, ant determinist, view of social life.
KEY POINTS:
- Arguments are substantially idle because it challenges no descriptive / normative
thesis about its object.
- Social Construction may refer to Race, Racism, Poverty.
- Constructivism sometimes imply amount to the thesis that an object in question has
a history.
- Most potent forms of constructivism are those that promise to surprise us with the
news that a certain object of attention owes its existence to social history.
- Harts theory places law firmly in history. It follows wholly from the development of
human society.
- Social Construction understood Peoples actions and their critical reaction to the
behavior of others.
- Hart Theorizes Social Construction as a fact in emerging a field of unconstructed
reality including even certain unconstructed constraints of human conditions.
- Harts constructivism reflects his positivism. He defines legal positivism as the theory
that there is no logically necessary connection between law and morality. However,
he describes his own viewpoint as a "soft positivism," because he admits that rules
of recognition may consider the compatibility or incompatibility of a rule with moral
values as a criterion of the rules legal validity.
- According to Hart, Law is a Social Construction with 2 senses of Terms. This are:
- LAW HAS A HISTORY. It is an intuition that did not always exist and emerges for
special reasons and take the forms it does, including normative character as a result
of human action.
- CONCEPT OF LAW IS ANTIESSENTIALIST. There is no essence to the phenomena
called Law.
The Concept of Law - is an analysis of the relation between law, coercion, and morality, and it is
an attempt to clarify the question of whether all laws may be properly conceptualized as
coercive orders or as moral commands.
Coercive - the practice of persuading someone to do something by using force or
threats.

KEY POINTS ON THE CONCEPT OF LAW:


-

There is no logically necessary connection between law and coercion or between law
and morality. He explains that to classify all laws as coercive orders or as moral
commands is to oversimplify the relation between law, coercion, and morality.
Conceptualize all laws as coercive orders or as moral commands is to impose a
misleading appearance of uniformity on different kinds of laws and on different
kinds of social functions which laws may perform.
Argues that to describe all laws as coercive orders is to mischaracterize the purpose
and function of some laws and is to misunderstand their content, mode of origin,
and range of application.
Laws are rules that may forbid individuals to perform various kinds of actions or that
may impose various obligations on individuals and if necessary, a punishment has to
be imposed for injuring others.
They may also specify how contracts are to be arranged and how official documents
are to be created.
They may also specify how legislatures are to be assembled and how courts are to
function
They may specify how new laws are to be enacted and how old laws are to be
changed.
They may exert coercive power over individuals by imposing penalties on those
individuals who do not comply with various kinds of duties or obligations. However,
not all laws may be regarded as coercive orders, because some laws may confer
powers or privileges on individuals without imposing duties or obligations on them.
According to Hart, Laws that impose duties or obligations on individuals are
described as "primary rules of obligation." In order for a system of primary rules to
function effectively, "secondary rules" may also be necessary in order to provide an
authoritative statement of all the primary rules. Secondary rules may be necessary
in order to allow legislators to make changes in the primary rules if the primary rules
are found to be defective or inadequate. Secondary rules may also be necessary in
order to enable courts to resolve disputes over the interpretation and application of
the primary rules. The secondary rules of a legal system may thus include 1) rules of
recognition, 2) rules of change, and 3) rules of adjudication.
In order for the primary rules of a legal system to function effectively, the rules must
be sufficiently clear and intelligible to be understood by those individuals to whom
they apply. If the primary rules are not sufficiently clear or intelligible, then there
may be uncertainty about the obligations which have been imposed on individuals.
Vagueness or ambiguity in the secondary rules of a legal system may also cause
uncertainty as to whether powers have been conferred on individuals in accordance
with statutory requirements or may cause uncertainty as to whether legislators have
the authority to change laws. Vagueness or ambiguity in the secondary rules of a
legal system may also cause uncertainty as to whether courts have jurisdiction over
disputes concerning the interpretation and application of laws.

Primary rules of obligation are not in themselves sufficient to establish a system of


laws that can be formally recognized, changed, or adjudicated. Primary rules must
be combined with secondary rules in order to advance from the pre-legal to the
legal stage of determination.
A legal system may thus be established by a union of primary and secondary rules.
(although Hart does not claim that this union is the only valid criterion of a legal
system or that a legal system must be described in these terms in order to be
properly defined).

HARTS EXTERNAL ASPECTS OF RULES:


-

An observer who does not necessarily have to accept the rules of the legal system.
The external observer may be able to evaluate the extent to which the rules of the
legal system produce a regular pattern of conduct on the part of individuals to
whom the rules apply. The internal point of view, on the other hand, is that of
individuals who are governed by the rules of the legal system and who accept these
rules as standards of conduct.
The "external" aspect of rules may be evident in the regular pattern of conduct
which may occur among a group of individuals.
The external aspect of rules may in some cases enable us to predict the conduct of
individuals, but we may have to consider the 'internal' aspect of rules in order to
interpret or explain the conduct of individuals.

HARTS INTERNAL ASPECTS OF RULES:


-

The "internal" aspect of rules distinguishes rules from habits.


Habits - viewed as regular patterns of conduct but are not usually viewed as
standards of conduct.

KEY POINTS ON LEGAL SYSTEM:


-

Legal System - consist of an adherence to or acceptance of an ultimate rule of


recognition by which the validity of any primary or secondary rule may be evaluated.
If a primary or secondary rule satisfies the criteria which are provided by the
ultimate rule of recognition, then that rule is legally valid.

2 MINIMUM REQUIREMENTS TO SATIFY ORDER OF LEGAL SYSTEM


1. Private citizens must generally obey the primary rules of obligation.
2. Public officials must accept the secondary rules of recognition, change, and adjudication
as standards of official conduct.
Note: If both of these requirements are not satisfied, then primary rules may only be sufficent to
establish a pre-legal form of government.

MORAL / LEGAL RULES MAY APPLY to similar aspects of conduct such as obligation
to be honest and truthful or the obligation to respect the rights of other individuals.
There is no necessary logical connection between the content of law and morality,
and that the existence of legal rights and duties may be devoid of any moral
justification.

LEGAL POSITIVISM
- A theory that there is no logically necessary connection between law and morality.
- Hart describes his own viewpoint as a "soft positivism," because he admits that rules of
recognition may consider the compatibility or incompatibility of a rule with moral values as a
criterion of the rules legal validity.
- disagree with theories of natural law, which assert that civil laws must be based on moral laws
in order for society to be properly governed.
THEORIES OF NATURAL LAW - asserts moral laws which are universal and which are
discoverable by reason. Thus, they may fail to recognize the difference between descriptive and
prescriptive laws. Laws that describe physical or social phenomena may differ in form and
content from laws which prescribe proper moral conduct.
FORMALISM / RULE SCEPTICISM - as methods of evaluating the importance of rules as
structural elements of a legal system which is criticized by Hart.
DOWNSIDE:
-

Adheres to the general rule of conduct in order to decide what actions are to be
performed in a particular situation.
May produce inflexibility in the rules of legal system which is not adaptable to other
particular cases.
May produce uncertainty in the application of the rules of a legal system that every
case has to be adjudicated.

KEYPOINTS ON INTERNATIONAL LAW:


-

According to Hart, INTERNATIONAL LAW lacks elements of a fully developed legal


system.
They also lack secondary rules of recognition, change and adjudication and as such,
International legislators are unable to enforce sanctions against nations who
disobeys the Intl law.
Do not have jurisdiction over nations with legal disputes.

SOURCES OF LAW by DJ HARRIS


Domestic Laws found in statutes of books and in collections of court decision.
SOURCES ARE CLASSIFIED INTO:
FORMAL SOURCES Refers various processes by which rules comes into existence.
MATERIAL SOURCES Not concerned with how rules come into existence, identifies the what
obligations are. Based on Evidence.
DOCTRINE OF SOURCES Lays down conditions for verifying an ascertaining the existing
principles.
PROCESS OF VERIFICATION may either be INDUCTIVE or POSITIVISTIC.
CUSTOM OR CUSTOMARY INTERNATIONAL LAW general and consistent practice of states
followed by them from a sense of legal obligation. (OPINIO JURIS)
CONTAINS 2 BASIC ELEMENTS:
Material Factor How states behave
-

Determines the actual behavior of states.


Elements include Duration, Consistency, and generality of the practice of states.
Duration may not be the most important element but rather the consistency and
generality of the practice.
Basic rules of consistency; Continuity and Repetition.

Opino Juris Belief that a certain form of behavior is obligatory that makes a practice and
international rule ang w/o it, practice is not law.
-

Existence of Opinio Juris is a matter of proof.

Psychological / Subjective factor Why they behave the way they do.
Treaties determine the rights and duties of states just as individual rights are determined by
contracts.
-

Their binding force comes from the voluntary decision of sovereign states to obligate
themselves to a mode of behavior.
All treaties must be observed by the parties under the principle of Pacta Sunt
Servanda.

Pacta Sunt Servanda - An expression signifying that the agreements and stipulations of the
parties to a contract must be observed.
-

If treaty is intended to be declaratory of customary law, it may be seen as evidence


of customary law.
Treaties and customs can be complimentary.
Treaties can be indicative of adherence to practice Opinio Juris.
Manifest a deliberate choice of the parties and the principle of Pacta Sunt Servanda
is being followed.

The General Principle of law recognized by civilized nations Third Source cited.
-

Referred by the Restatement as General Principles of Law recognized by or


common to the worlds major legal systems
Reference not only on the principles of international law but also to the principles of
municipal law common to the legal systems of the world.
These principles essentially provide a mechanism to address international issues not
already subject either to treaty provisions or to binding customary rules. Such
general principles may arise either through municipal law or through international
law, and many are in fact procedural or evidential principles or those that deal with
the machinery of the judicial process.
Perhaps the most important principle of international law is that of good faith. It
governs the creation and performance of legal obligations and is the foundation of
treaty law. Another important general principle is that of equity, which permits
international law to have a degree of flexibility in its application and enforcement.

Restatement Refers to as Supplementary rules of international law found in judicial


decisions and the teachings of the most highly qualified publicists of the various nations which
the statutes refers to as subsidiary means of determination of rules of law
Equity - permits international law to have a degree of flexibility in its application and
enforcement.
HOW TO DISTINGUISH MUNICIPAL LAW FROM INTERNATIONAL LAW
1. Take note of the basic difference between the two types of law:

Municipal law regulates relations within a country (intra-state).


International law regulates relations between countries (inter-state).

2. Understand that there are key substantive differences between international law and
municipal law in the following areas:

the processes used to make law

the basis of obligation on parties


the way in which obligations are enforced
the way in which law interplays with politics

3. Recognise that the principal feature of municipal law is the existence of a legislature and
a court system that can settle legal disputes and enforce the law. At the international
level, however, there is no legislature in existence and it is by way of agreements
between countries (treaties) that international law is made. This can also be described
in the following way:

Municipal law is hierarchical or vertical - the legislature is in a position of supremacy and


enacts binding legislation
International law is horizontal - all states are sovereign and equal

4. Understand that the lack of an enforcement mechanism akin to a police force at the
international level impedes coercive enforcement. The court system at the international
level is one that relies on the acquiescence of the countries to both its jurisdiction and
to carrying out the decisions of the court. The court system is well-established at the
international level and respected but it lacks the ability to compel a country to come
before it, unlike courts in a municipal system which can require a government, company
or individual to appear before it.
5. Notice that the role of politics in international law influences the character of
international law profoundly and is more likely to reflect the political interests of the
countries than might be the case at the municipal level. International law is made by
way of political agreements (treaties) and will be supported or ignored according to the
political interests of a country.

SOFT LAW Not included among the sources is what a growing literature refers to as Soft
Law
-

Others refer to as non-treaty agreements.


International agreements not considered as treaties and are not covered by Vienna
Convention on the Law of Treaties.
Vienna Convention on the Law of Treaties.
The Convention was adopted on 22 May 1969 and opened for signature on 23 May
1969 by the United Nations Conference on the Law of Treaties.
Soft Law plays an important role in international relations because often the states
prefer non-treaty obligations as s simpler and more flexible foundation for their
future relations.

COURT AS INHERENT / CONSTITUTIONAL


Inherent jurisdiction - is a doctrine of the English common law that a superior court has the
jurisdiction to hear any matter that comes before it, unless a statute or rule limits that authority
or grants exclusive jurisdiction to some other court or tribunal. The term is also used when a
governmental institution derives its jurisdiction from a fundamental governing instrument such
as a constitution.
Constitutional court - is a high court that deals primarily with constitutional law. Its main
authority is to rule on whether or not laws that are challenged are in fact unconstitutional, i.e.
whether or not they conflict with constitutionally established rights and freedoms.