How good is Hart's theory

It is important to understand that every rule or law that we follow is fair and reasonable and it does not put any individual in a situation that would be unjust to them through the laws that they followed. To discuss the matter of what makes law lawful, this essay will examine and evaluate John Hart’s account of his intake on the relationship between law and morality. This essay will also look at other thinker’s account on the relationship of law and morality to evaluate how well or not so well Hart’s theory is.

Hart’s theory on law has been broken down to several element to explain what his take is. But, before explaining that in detail, Hart’s overall theory on the relationship between law and morality is that he believed that ‘there is no necessary connection between law and morality’ . Now, examining the theory of Law, Hart concentrated on the concept of social rules in where a legal system is a particular set of social rules that is supposed to be impartial in various ways in which communities may put themselves by such as politically, culturally, and so on. But, however they do this, there need to be social rule for there to be a balance. Furthermore, Hart states that to know what social rule is, we must need to understand what internal point of view is, Hart explains that this is basically the way in which the member of the community that adopt the rule, see their own occurring conducts. Therefore, when understanding the internal point of view, it helps us to understand that the social rule element could only be understood if it meant looking at a person from the eye that they are being supervised and because of this Hart states that social rule is a normative standards of appraisal. This is when a person uses the social rule as a way to guide them for the conduct, they perform an example would be helping them to be aware that murdering someone is illegal meaning that the person is making themselves aware through the guidance of social rule that they should not put themselves in a situation that could make the other person say that the conduct they performed was murder. Another way standard appraisal could be used is to help an individual to make judgement about other person’s conduct. An example would be when you see an individual using his mobile phone while driving, you instantly become aware of that what he is doing is wrong and feel angry by their actions.

Furthermore, Hart explains that law is a unification of two various sets of rules, which tend to be 4 kinds of rule in a legal system but ultimately fall into two classifications. On the one hand there are primary rules that explain to you of the right and the wrong of law or explain to you of what you are allowed to do and what you aren’t allowed to do. On the other hand, there are secondary rules which have various sets. As primary rules are to do with the people’s action, people, and the organisation action of what is lawful and unlawful to do. Secondary rules deal with primary rules. There are 3 types of secondary rules: the rules of recognition, which recognises that specific primary rule as being lawfully valid and as part of the legal system, the rule of change, which indicates how those laws of the legal system can be altered or amended and lastly, the rule of judication, which states how violations of those rules of the legal system will be defended or handled with. Additionally, when all those 4 sorts of rules are joined together then it can establish the lawful validity through the rule of recognition which will lead to having a system of law. So overall, Hart has explained this concept that there are different sorts of primary social rules, legal rules, moral rules, tradition and so on but, every primary rule will be gone with the rule of recognition that will state its lawfulness in certain terms. Therefore, there will be certain rules that will have other sources of legality as they will be legal because of what the society views as its legal system, so when the rule of recognition choses the legal lawfulness then, the primary rule will be in the legal system. Moreover, Hart stated that secondary rules are for primary rules but, secondary rules are for secondary rule as well, an example to explain this would be an individual that would that calls himself the parliament and makes altercation to the law, but his decree would not be supported by the relevant rules of recognition,

Moving on, as Hart states that the law is a system of primary and secondary rules, it is key to now identify what makes that law lawful. Well, the validity of primary rule in a legal system can be determined if the necessary criteria are met that are defined within the legality of the system of rules of recognition, if this is met then there is a system of rule which is obtained as law. Moreover, primary rules are obeyed then there is a legal system but if there is a situation which causes the public to not obey then, it will result in a legal system not being present, an example would the Nazi Germany, as it has been rejected by the public of Germany. There is situation where people still follow primary rules, but the secondary rules are not approved by the government, an example of this would be colonial cases.

Overall, when we look at Hart’s theory, we need to ask ourselves on why we should agree with Hart. Well, all the rules that are presented by Hart are presented in all humans in some ways. As humans need some kind of laws that will help them guide themselves to understand of things that are right and wrong. But also guide them to become aware of the things that they can do and cannot do in the world to be able to survive to certain extent. Therefore, all the elements that are mentioned by Hart’s link to the legal system as humans need arrangement of primary rules that will help them organise themselves, they also need these rules to be updated with the current situations as things don’t stay the same and because of this the law will become outdated. Moreover, with primary rules and rules of change, there needs to some presence of rule of judication as this will allow the rules to be in a working manner, as if this was not present then it would be unclear of how the rules were to be managed by. Additionally, the rule of recognition is also required to identify whether the rules that are presented are part of the legal system or not. Without, the rule of recognition it would be difficult for the whole system to work. Therefore, to understand the lawfulness of a law, we need the elements presented by Hart as we see how all of these elements mentioned above has defined in a way that allows us to see why these elements are important in making the legal system and how it works when we use all the rules and principles mentioned by Hart.

However, despite seeing all how well Hart’s contribution has helped the legal system, there are other thinkers that criticise Hart’s theory. Ronald Dworkin, an American legal philosopher, puts himself in the position where he does not accept the idea of law by Positivist, like Hart. Dworkin’s theory of law was based on looking at other thinkers, more especially John Hart’s theory of law and criticising that theory and stating an adapting these theories into what he believed were aspects that should be included to create a proper legal system and understanding how these legal systems are the way they are. Unlike Hart, Dworkin’s take on the relationship between law and morality was that there was a “necessary connection” between the two Dworkin’s criticises Hart’s theory of law as he does not accept Hart’s theory of primary and secondary rules. Dworkin explains the Hart fails to bring up about the legal principles as he believes that the law is a system of rules and principles. Dworkin also highlights that Hart has missed the extra element to a legal system, however, this is only what Dworkin feels as other thinkers do not think this at all. Dworkin’s concept of rules and principle tend to different when going deeper as he thinks that a legal rule is something that needs an explicit decision meaning when you see the rule that is relevant then you must obey it. Whilst, when you see that a principle relevant then this will provide you a cause to do what the principle is needing but, it does not need that this is applied automatically as there could be substitute thought that outweighs it. This is the aspect of morality that is brought up by Dworkin in his theory, in which Hart fails to mention. An example of this concept can be seen in the 1989 marital rape law in which it was made clearly illegal in Scotland. Before this law, it was viewed lawful that intercourse that was performed within the marriage without consent would not be deemed unnatural as the definition of rape legally did not contravene. However, with time, as Scotland’s law principle was about equality and fairness, the definition of rape contradicted the principles. Due to this, that law removed not because the judges own moral were like that but, because there was unbalance in law not between two rules that state different things, but it is between the meaning to that law and the values that are present in the legal system that contradicted the whole thing.

Dworkin has disagreed with Hart’s theory of law in various ways and in the matter of dealing with difficult cases Hart states that when a difficult case arises then the job of the judge is not to apply the law as he believes that difficult cases indicate breaks in the legal system, and it is the judges’ duties to close those gaps. So, what Hart explains is that judges can therefore have the option of either appealing to a higher court to make the decision on that case, if the judges feel that the law is not up to date then have the power to use the doctrine of implied repeal in which they can remove this law if it has not been done so before. Hart feels these option can only reach a certain point as at the end of the day, judges have to make a decision that will be reasonable to the current situation of that case. He also expresses that we should not think that judges are just applying the law but go in the direction that the judges are using the law to guide themselves but, overall, in a difficult case the judges have a strong choice to make a logical decision to put an end to the difficult situation that has come about as he ultimately states that the judges are making the law in these circumstances. This is what Dworkin strongly disagrees on and is someway is attacking Harts, as Dworkin’s whole theory is based on the facts that judges do not create laws, they simply take what it is there and apply it because if the judges did create laws then it would be that they are not adequately under the legal system as he feels that those create law can also remove them as well. Due to this Dworkin wants that the legal system to be supreme, which leads to his theory of stating that the judges create laws in hard cases. Dworkin feels that Hart has only led to this thinking because he thinks Hart has left out the main aspect of the legal system of principles.

In conclusion, it can be seen that whilst Hart’s theory has given a huge contribution to the legal system, almost like the foundation to the legal system. There has been criticism by other thinkers that state Hart did not go deeper to explain many other aspects of the legal system and that maybe there was links between the law and morality as whole like Dworkins who sees that there is connection between law and morality. But, nonetheless, Hart’s insight into the law has created pathways to take his theory further and discuss it on why this is a good theory as whole. Hart does explain the theory of law well as he links with way in which he feels the law should be followed and why. Despite having criticism of not including morality to some extent he impressed other positivist that also agree with his work.