Austins COMMAND THEORY

- command from a sovereign backed by threats

- like Bentham, he wanted to do away with obscure/metaphysical thinking (Aquinas)
- classical legal positivist
- elucidates a factual scenario
-

Kelsens PURE THEORY OF LAW

- divorced from morals and social facts
- distilled norms and their arrangement of these norms (similar to Langdells theory)
- more abstract, finds the ought from observing the legal system
-

HLA Hart = The Concept Of Law

Chapter V: Law as the Union between Primary and Secondary Rules
- four criticisms agains Austin
- missing piece is the idea of a rule (presupposes the internal view)
- obligation v. be obliged (gunman situation)
- Internal v. External views
> you have an obligation if you feel like/believe you have an obligation (not just
based on social pressure, etc.)
>
- union of primary & secondary rules is necessary, but not sufficient to establish a legal
system

Chapter VI: The Foundations of a Legal System

what is in a legal system? (minimum conditions)
i) people obey the law (no need for internal view)
ii) officials applies the internal view

Chapter VII: Formalism and Rule-scepticism

-open texture of law

whatever device is used (precedent/legislation) to communicate rules, at some
point their application will be in question
two handicaps:
i) relative ignorance of fact
ii) relative indeterminacy of aim
formalism: relies on rigid adherence to general rules of conduct in order to decide which
action should be performed
creates inflexibility in application
rule-scepticism: may not rely on any general rule to decide which action should be
performed
creates uncertainty in application
- varieties of rule-scepticism

Chapter VIII: Justice and Morality

is there a necessary connection between law and morality?
Thomas tradition of Natural Law:
principles of justice discoverable by reason, man-made laws which conflict with
these principles are not valid laws
two issues:
i) distinction within the sphere of morality of the specific idea of justice and the
special features which account for its peculiarity intimate connection with law
Justice is important, but it is not morality
criticism in terms of justice and injustice has a different point compared to general moral
criticism (good/bad law, just/unjust law)
Just/unjust - more specific forms of moral criticism, similar to fair/unfair
- concerned with ones share or compensation in society
ii) characteristics of moral rules that distinguish them from other rules
Four cardinal features of morality (distinguish from legal rules and other norms)
i) importance
regarded as something of great importance to maintain
manifested in many ways:
> simple fact that moral standards are maintained against the drive of strong

passions which they restrict, at the cost of sacrificing personal interest

> serious forms of social pressure exerted to secure that moral standards are
taught to all society
> recognition that far-reaching distasteful change would occur
legal rules may be unimportant, but all moral rules must be important
ii) immunity from deliberate change
new legal rules can be enacted, old ones may be changed/repealed by deliberate
action
moral rules are not brought into being/changed in this way
standards of conduct cannot be endowed with or deprived of moral status be mere
human fiat
morality is something there to be recognized, not made deliberate by choice
however, morals may still be changed
iii) voluntary character of moral offenses
iv) form of moral pressure

Chapter IX: Laws and Morals

MDA Freeman = Modern Trends in Analytical

Jurisprudence
From Robert Summer
Jurists now are performing a wider variety of analytical activities than their
predecessors. 4 main categories:
- analysis of the existing conceptual framework
- construction of new conceptual frameworks
- rational justification of institutions and practices
- purposive implication, the tracing out of what the acceptance of social purposes
implies

From Neil MacCormick

- rediscovery of practical reason
reasons we address when contemplating an actual or supposed obligation.
From Raz
- separating law from morality and other norms
- difference between conduct being legally obligatory and its actually being obligatory
- distinction within practical reasoning between what has already been decided and
what reasons there are for deciding one way or the other (best defence for the
separability thesis)
but what is an authoritative decision?
What separates law from other norms is a positivist project, but it had its inadequacies
(e.g. when it ran out of rules)
Dworkin thus constructed a theory of law out of a theory of adjudication [judges do use,
and must use, moral considerations as well as rules in legislation and case law] Moral
considerations are integral to the moral theory justifying the application of statute and
precedent.
Hart applies philosophy to substantive legal issues (causation, punishment, legitimacy
of legal intervention of private morality)
Positivism has two central tenets:
(1) social thesis [what counts as law in a given society is a social fact]
(2) separability thesis [no necessary connection between law and morality]
two types of positivists:
(a) inclusive legal positivism [incorporationists] - allows that substantive moral
principles count as part of a communitys law
(b) exclusive legal positivism - refuses to allow legal status to be determined by
moral argument

Harts Concept of Law

- skips trying to define law (b/c growth of theory on the back of definition sucks), instead
elucidates the conditions to which true statements are made in legal contexts.
- the aim is elucidation of concepts like rule and obligation [use a sharpened awareness
of words to sharpen our awareness of phenomena]

- essay in analytical jurisprudence, not descriptive sociology (skips questions about

power, conflicts of interest, law <-> culture/class, etc.)
An Outline of Harts Jurisprudence
- Legal system is a system of social rules (regulate the conduct of members of
societies; derive from human social practices
- they are not the only social rules (also morality)
- law hinges on the inter-relationship of primary and secondary rules
- Objected to Austins command theory because it failed to encompass the variety
of laws
Skeleton of the legal system
\ primary rules: impose duty (criminal law, tort law, etc.)
\ secondary rules: power conferring rules, relate in various ways to the primary
rules
a) rules of adjudication = confer competence on officials to pass judgment in
cases; enforce the law
b) rules of change = regulate/allow the process of change (e.g. legislation)
c) rules of recognition = determines the criteria which governs the validity of
the rules of the system
- two minimum conditions for the existence of a legal system:
1) rules of behaviour which are valid according to the systems ultimate
criteria of validity must be generally obeyed
2) rules of recognition specifying the criteria of legal validity and its rules of
change and adjudication must be effectively accepted as common public standards of
official behaviour by its officials (observe the rule of recognition from the internal POV)
Hart tries to show the parallels b/w the mature legal system and existing ones
- primitive forms of social community [primary rules are observed, secondary rules
are not developed] thus concepts such as power, official, and legislature are missing
- international law is similar because it lacks a central organ of adjudication; no
method of changing rules (other than treaties); no rule of recognition either
- for simpler societies, we have to wait and see whether the rule gets accepted as
a rule; mature systems, we can say a rule will be valid before it is made
- Hart sees good sense in natural law, and concedes that there is an overlap
between law and morality.
- However, there are four cardinal features of morality:
a) importance

b) immunity
c) voluntary
d) form of moral pressure
- As a positivist, Hart does not believe that law is derived from morality, but the
ultimate basis for preferring positivism is a moral one.

The Internal Aspect of Law

- differentiates Hart from Austin and Kelsen
- normatively hinges on human attitudes to human action. Thus, law depends on
the inner pov that people take towards rules
- for pre-legal society, it is necessary for citizens not only to obey rules, but also to
view them as standards of behaviour
- in a legal system, the internal pov is not required of citizens, but of officials
- concerned with understanding significance of human action, how they interpret
the actions of others
- Hart (unlike Austin) is denying the possibility of explaining rules simply by
referring to external patterns of behaviour
- critical reflective attitude to certain patterns of behaviour; displayed in criticism,
demands for conformity.
Two types of statement:
1) committed = made by persons who accept the rules
2) detached = made by persons who speak as if they accepted the rules but
do not commit themselves

The Rule of Recognition

- mere habit of obedience (in Austins theory) cannot explain the CONTINUITY of
law
> habits are to normative, they do not confer rights/authority on anyone
> habits of obedience to one person cannot refer to a class of future
legislators, or render obedience to them likely
- habit cannot also answer for the PERSISTENCE of law
> why do we obey a sovereign long since dead?
> substitute habits of obedience for currently accepted fundamental rules
specifying a class or line of persons whose word is to constitute a standard of behaviour
for the society

- Austins theory cannot accommodate legal LIMITATIONS on the sovereign

> limits are not legal duties, not disabilities [absence of legal power]
> restrictions are part of the rule conferring authority
- rule of recognition = provides authoritative criteria for identifying valid law within a
legal system
how do we ascertain it? such a rule is NOT EXPRESSLY STATED, but can be
shown in the way particular rules are identified by officials (but what do we expect to
observe in a court? the rule has an internal aspect, but can we see this?)
Hart says that the rule of recognition is ultimate, thus neither valid nor invalid (a la
metre bar in Paris)
- the only point is whether the rule of recognition is accepted as such
- as a secondary rule, it should be power-conferring, but it doesnt do this. or
maybe its just about primary rules
- MAYBE its actually a duty-imposing rule! or maybe its a third type of rule?
whatever no one really knows.
two positions on the rule of recognition
1) only one rule (what the Queen in Parliament enacts is law)
2) specifying various criteria, and ranking them (similar to Kelsens hierarchy
of norms)
Postscript additions:
> rule of recognition may incorporate criteria of legal validity conformity with moral
principles/substantive values
> the criteria may consist in constraints on the content of legislation
> rule of recognition may have a debatable penumbra of uncertainty
The Rule of Recognition is a luxury to be found in mature legal systems, not a
necessity. (not like the Grundnorm of Kelsen)
- there is no reason to insist that there is a basic norm in the international legal
order

Is Law a System of Rules?

- open texture recognises that legal rules cannot be expected to provide for every
situation that may arise, b/c of 2 handicaps:
a) relative ignorance of fact
b) relative indeterminacy of aim
- judges must use their discretion and make new law in penumbral situations

- using moral standards to fill in gaps in rules, but such standards are not in the
rules
Dworkin and Hart fight over rules and principles
principles:
> state a reason that argues in one direction, but do not necessitate a
particular decision
> officials must take into account if it is relevant
> dimension of weight or importance
> can conflict
> force may become eroded over time
- Dworkin says that Harts model cannot accommodate principles, but MacCormick
shows that positivism can incorporate principles, not just rules.
- main difference is in the projects the judges pursue (dworkin=constructive
interpretation; law in its best moral light)
Hart is sees legal theory as general, descriptive, and morally neutral, and locates
Dworkins theory in a particular culture (Anglo-American)

Raz and Reasons for Action

- the social thesis is the core of legal positivism, as law is a social institution
- tests for identity and existence of a legal system have three elements
a) efficacy
b) institutional character
c) sources***
- focusing on sources (existence and content of law is determined by social sources) is
not about pursuing certainty, but finality
- takes no view on whether judges should make new law, simply separates the
application of law from the making of new law
- while law is autonomous, legal reasoning is not autonomous
- the very nature of law and legal system is to claim justified practical authority over a
population
- legal directives provide first order reasons and second order reasons to do what they
specify
- we accept authority because we understand its directives yield benefits that do not
arise when relying on our own judgement
- differs from Hart because rules may not be social practices (lacking a critical reflective

attitude)
- substitutes the internal pov for detached normative statement (jew asking catholic
about bacon)

Rights
The Nature of Rights
- two competing theories (will/choice vs. interest/benefit)
WILL THEORY [Hart] = purpose of the law is to grant the widest possible means of
self-expression to the individual; maximum degree of individual self-assertion (similar to
moral individualism, sovereignty, etc.)
- the right-bearer has power of the duty in question (waiver, extinguish, enforce,
leave it); decision is his choice
problems:
> seems to allow all rights to be waived
> childrens rights v. parental/guardian rights
> rights of animals, trees, etc.
INTEREST THEORY [MacCormick] = purpose of rights is to protect certain
interests; rights are benefits secured for persons by rules regulating relationships
- X has a right whenever he stands to benefit from the performance of a duty
- X has a right whenever the protection or advancement of an interest of his is
recognised as a reason for imposing obligations
- actually covers all kinds of rights as well as liberties
> does not explain why rights should be tied to benefits
Hohfelds Analysis of Rights
- X has a right to R may be used to depict a number of ideas that are easily
confused.
- relates concepts to their correlatives and opposites
Right <-> Duty

right

is the opposite of

correlates with

no-right
correlates with

duty

is the opposite of

privilege

power

is the opposite of

disability

correlates with

liability

"P has the right to

do A"
"P has the duty to

do A"
"P has the power to

change S"
"P has immunity

from changes to S"

"P has the right to

do A"

"P has the duty to

do A"

"P has the no-right

to do A"

"P has the privilege

to do A"

"P has the power to

correlates with
is the opposite of

immunity

"P fails to have the

no-right to do A".
"P fails to have the
privilege to not do
A".
"P fails to have the
disability to
change S".
"P fails to have the
liability to changes
to S".

"Every Q other
than P has the
duty to allow P to
do A".
"Some Q other
than P has a right
that depends on P
doing A".
"Some Q other
than P has the
privilege to
prevent P from
doing A".
"Every Q other
than P has the noright to do
anything
prevented by P
doing A".
"Some Q other

change S"

"P has the liability

to changes in S"
"P has the
disability to change
S"
"P has immunity to

changes in S"

than P has a
liability to changes
in S".
"Some Q other
than P has a
power to change
S".
"Every Q other
than P has
immunity to
changes in S".
"Every Q other
than P has the
disability to
change S".

Human Rights
- Amartya Sens questions:
1) what kind of statement does a declaration of human rights make?
- human aghast can be seen as primarily ethical demands (not legal, porto-legal,
or ideal-legal) They do inspire legislation, but this is not a constitutive characteristic of
human rights
2) what is it that makes human rights important?
- relates to the significance of the freedoms that form the subject matter of these
rights; the freedom to be defended/advanced must satisfy threshold conditions of
special importance and social influenceability
3) as rights what obligations are entailed?
- generate reasons for action for agents who are in a position to help in the
promoting or safeguarding of the underlying freedoms. obligations involve the duty to
give reasonable consideration to the reasons for action and their practical implications
4) how are human rights best promoted? must legislation be the primary way of
implementing human rights? indeed is it a necessary pre-condition?
- implementation goes beyond legislation, a theory of human rights cannot be
sensibly confined within the juridical model. some human rights are not ideally
legislated, but better promoted thru other means

5) is it reasonable to argue that the second generation rights are human rights?
human rights include significant and influenceable economic and social freedoms.
cannot be realised?-> work for institutional expansion/reform
6) how can arguments for human rights be defended? given cultural diversity and
pluralism in practice, can it really be said that human rights are universal? or are they
invoked to impose western values on the rest of the world?
unversability= ideas of survivability; partisanship is avoided by interactive process
of discussion.
- concept of enlarged mentality from Arendt
> subjectivity does not mean arbitrariness
> ability to see things not only from ones POV but in the perspective of all who are
present
> expanding the base of ones common sense is important, but effort must be
made to consider the standpoints of others

The Obligation to Obey the Law

- should immoral laws be followed? (Hart-Fuller debate)
-