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Hart and Natural Law Harts Minimum content what legal systems have in common Ch.

Ch. 1 Concept of Law people ask persistently what is law STRANGE qs since assumes that simple answer may be given ie. in form of definition Issues with Austin intl law, where is the sanction, why habitually obey, constitutional law o Is constitutional law, law? NO more like morality than law self imposed Austin said to say that sovereign can bind him is a contradiction in terms definitional problem Austin has a self producing/reinforcing definition HART strange to think that can simply DEFINE something like law WHY b/c commonly use word to apply to #s of different things ie. scientific laws, intl law, EC Law, Regional laws, Constitutional law o To apply to such a range which part of family of use of word BUT do not all emphasize the same definitional elements that Austin suggested are NECESSARY part of law o Hart says search for definition is hopeless mistake o Linguistic Philosophy Hart is such words gain meaning in how used in different contexts words change meaning by given different uses in different contexts Applied this to many legal words AND the concept of law Intl law correct use will give different emphasis on different elements RATHER than how used in context of municipal law THUS no point searching for 1 off definition MUST elucidate on the word law link together different conceptual elements that MAP the geography of concepts that law appropriately is engaged in using o IF can find main concepts and show how link together THEN elucidate and show how law means THROUGH how it is used

How the separation thesis applies Harts positivism Apart from what ought to be FIRST need to know what the law is question is how to do conceptually RATHER than purely empirically by saying what is law in fact what goes on in the name of law assess legal officials, police, and describe what law is in certain practices AUSTIN in defining tried to do so conceptually through notion of definition IF wanted to relate to facts was the facts associated with WHO sovereign is habits of obedience HART IF words have meaning appropriate meanings b/c conventionally used in different contexts THEN if you can describe conventional use, DESCRIBE appropriately when law used in intl law and show how linked together in context THEN sort of empirical test for concept of law

o TEST: if people actually use the word law commonly/conventionally and apply it in area of intl law THEN all you need is see what concepts are being linked to get to that use o HART: (1) engaged in legal positivism conceptual jurisprudence (2) engaged in descriptive sociology he claimed what ACTUALLY goes on description of facts BUT nothing more than facts of how people used the word law ACTUAL uses didnt ACTUALLY study behavior based on some suggestion that if find how people appropriately use and others accept THEN elucidate conceptual arrangement that make the meaning Separation thesis sounds good humanely created without speculation about nature, coexistence BUT problematic b/c surely in MOST societies law IS somehow influenced by moral background culture that exists within society o Inappropriate to link laws to particular society change in moral/cultural society SURELY link of law and SOME notion of morality operating in particular society o ODD to build SO much out of trying to define what law is APART from what law ought to be o Positivists do NOT deny that MIGHT be relationship between what law is in society and common culture/morals/public morality What he DOES deny that these things necessarily linked rather than always contingent o Minimum Content whenever you got something in world that people identify and call law FIND that there are rules about arbitrary use of force on what person against other ALWAYS some rules about arbitrary use of force o ALL have SOME rules about the arbitrary use of force against other free person o Similar idea to resource allocation ie. property laws o Similar to idea of legal rules about being nice to other people some societies have rules about being nice WHY look to all societies because we are all humanely vulnerable because always be some resources that thought to be limited work out how to allocate because always be some sense that some people need support and help because of these factors that seem to operate from conditions of human existence always get some rules such as above minimum content of law derive from early Natural Law thinking BUT for Hart does NOT mean that a necessary link between law and moral s- THIS IS JUST factual background o Any sort of rules does NOT interfere what actual rules are in any given society o There is a sort of reasoning to do with human coexistence relevant as background to law Separation thesis applies even though some rules and somehow linked to moral/cultural background Positivist do NOT ignore these questions RATHER deal with as separate questions -

Harts Method and whats wrong with Austins Method From definitions to elucidations to linguistic philosophy Dealing with analytic jurisprudence analyst of language claims that descriptive sociologists language use RATHER than peoples behavior Analytical jurisprudence and descriptive sociology THROUGH this technique able to comment on many things CERTAINLY on what was wrong with Austins definition ALSO what was wrong with other peoples analyses and their odd definitions of law The central case technique: the core and the penumbra Clear uses of word the core Penumbra around the edge fuzzy around the edge what law is often closely associated with SOME moral rules SOME social norms SOME customary practices and trying to define whether is or is not law PROBLEM with fuzziness around edge Argues in intl law that appropriate use BUT closer to penumbra MORE difficult as a use LESS of core use Substantive Critique of Austins imperative theory the elements set out of which the theory was constructed, namely, the ideas of orders, obedience, habits and threats, do not include, and cannot by their combination yield, the idea of a rule, without which we cannot hope to elucidate even the most elementary forms of law. It is true that the idea of a rule is by no means a simple one Harts concept of law based on the idea that the KEY concept around which we can elucidate what law is is idea of a rule law for him becomes a system of rules and where Austin goes WRONG since concentrates on ONE sort of rule which he makes KEY to define namely the command law For Hart THIS is mistake FIRSTLY ignores fact that different sorts of rules that operate in legal systems Contract Law Sanction of Nullity THIS IS STRAINING the definition MISSING the point what get with system of rules is DIFFERENT rules for DIFFERENT purposes much more appropriate to think of these CIVIL laws as FACILITATING social interaction o Ie. Wills, Devolve property, Contract, Family, Idea of rule get closer to variety of things in name of law RATHER than notion of orders/sanction/obedience for Austin TOO NARROW WHY is it too narrow law NOT a simple idea rather complex with rules o Have moral rules (10 commandments), Social Rules, Legal rules o NEED to distinguish since positivist BUT cannot deny how close these things are OFTEN moral rules that are also legal rules

distinguish analytically WHILE accept that same rule may operate in others Austins exercise got NOWHERE near this

Notion of Rule Argued Austin completely missed

Internal vs. external aspect of rule The internal aspect of rules may be simply illustrated from the rules of any game. Chess players do not simply have similar habits of moving the Queen in the same way which an external observer, who knew nothing about their attitudes to the moves which they make, could record. In addition, they have a reflective critical attitude to this pattern of behavior: they regard as a standard for all who play the game. Each not only moves the Queen in a certain way himself but has views about the propriety of all moving the Queen in that way. These views are manifested in the criticism of others and demands for conformity made upon others when deviation is actual or threatened, and in the acknowledgement of the legitimacy of such criticism and demands when received from others. For the expression of such criticisms, demands, and acknowledgements a wide range of normative language is used. I (you) ought not to have moved the Queen like that, I (you) must do so, That is right, That is wrong Game rules HARTS point if you play the game you know the rules, then know how to describe when people deviate, thus liable to sanction (wrong move lose game), penalty is appropriate in relation to the rule the internal aspect anybody who plays KNOWS that game has rules which if people break liable to sanctions o IF according to rules could say poor players BUT not liable to sanctions external aspect -