Hart’s Criticism of Older Postivists (especially Austin)
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Transcript of Hart’s Criticism of Older Postivists (especially Austin)
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Hart’s Criticism of Older Postivists
(especially Austin)
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Today’s Outline
• 1. Austin’s Definition of Law
• 2. H.L.A. Hart’s Criticisms of Austin and Bentham on the Content of Laws: ie What They Say
• 3. Hart’s Criticisms of Austin on the Status of Laws: ie What They Are
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Austin’s Definition of Law
• A law is a general command of a sovereign• A command is an intimation of a will backed up
by the threat of a sanction• A sanction is an evil of some sort - however mild• A sovereign is a person or body:
– to whom the bulk of a given community are in a habit of obedience (for whatever reason), and
– Who does not owe a like obedience to any other
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Austin’s Definition of Law
• A legal system is a set of such commands together with permissive laws that cancel, or make exceptions to, such commands
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H L A Hart: 1907-1992
English jurist, taught at Oxford from 1945,professor of Jurisprudence 1952-1969• Much influenced by post-war linguisticphilosophy - friend of philosopher J L Austin• Wrote:– The Concept of Law (1961)– Many essays on punishment, liberty, Bentham, etc.• Positivist, but did not rely on a sovereign.• The laws of a system are identified by a basic rule- the rule of recognition of the system
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Hart on the Content of Laws
• Hart argues that the command theory cannot account for the variety of laws in a legal system:
• – In particular, legal systems contain “power-conferring” rules as well as “duty-imposing” and “liberty conferring” rules
• – He argues that the command theory cannot account for these distinct power-conferring rules ..
• – And criticizes arguments of Austin, Bentham and Kelsen that attempt to assimilate them into the model of commands or coercive norms
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Power-conferring rules explained:
• A “power”, as Hart uses the term, is:– an ability to bring about a legal change intentionally– Examples are: abilities to make a will, to enter a
contract, to make a by-law, to enter a judgment• Note:
– Rules can confer powers: eg the power to make a will– Rules can also restrict an existing power:– By limiting the persons who can exercise it– By limiting the manner in which it must be exercised– By limiting the circumstances under which it can be
exercised
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Hart’s criticism of Austin’snullity argument
• Austin attempted to explain rules that limit
powers by saying nullity is a “sanction”
• Hart points out nullity is merely a logical consequence of failure to exercise a power:– It is automatic, not a sanction imposed
thereafter– The person who fails is not a wrongdoer– The nullity may not be unwelcome