The Concept of Law (Clarendon Law) (Clarendon Law Series)

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conclusive identification of the primary rules of obligation. The virtue of an ROR is that it provides A further distinction present in a Hartian universe is present in the notion of ‘practice theory’, better explaining whether a rule is legally binding or not [11]. The ‘practice theory’ treats the social rules of a community as providing a pattern of conduct followed by most individuals of a community and a normative attitude to such a pattern of conduct is what Hart calls acceptance. inflict a sanction. This could result in arbitrary biases e. Mukhtara Mai case and more recently the Karo The Idea of Obligation: Hart feels thaƚ AƵƐƚin͛Ɛ ƚheoƌLJ͕ ƚhoƵgh flaǁed͕ Ɛƚaƌƚed fƌom ƚhe coƌƌecƚ Ɖoinƚ of Carlin Romano, "A Philosopher's Humanity", Chronicle of Higher Education vol. 51 (2005) (reviewing Lacey, "A Life of H. L. A. Hart") link

Hart, HLA (1988). "Answers to Eight Questions". In Duarte d'Almeida, Luis; Edwards, James; Dolcetti, Andrea (eds.). Reading HLA Hart's The Concept of Law. Oxford: Hart Publishing (published 2013). ISBN 1782252169. OCLC 884479238. Hart poseƐ ƚhe ƋƵeƐƚion of ǁheƚheƌ ƚhiƐ ͚habiƚƵal obedience͛ can edžƉlain͖ ;iͿ The conƚinƵiƚLJ of laǁ and Hart's basic idea is quite simple. Primary rules are rules of conduct; they tell you what your are legally obligated to do (or refrain from) and what consequences attach to obedience or disobedience. Thus, the criminal law rules that prohibit theft, forbid certain conduct and provide for penalties for violating the prohibition. Technically, the class of secondary rules includes everything except primary rules. For example, secondary rules are legal rules that allow for the creation, extinction, and alteration of secondary rules; secondary rules are power-conferring rules. Thus, contract law empowers individuals and firms to make contracts; contracts themselves are usually collections of primary rules. More precisely, primary rules are rules that govern conduct, and secondary rules are rules that do not. Thus, the distinction between primary and secondary rules is just a bit different than the difference between duty-imposing and power-conferring rules: duty-imposing rules impose duties, whereas power-conferring rules confer power. This leaves open the possibility that some rules can regulate other rules, but do so by imposing duties. For example, a secondary rule might impose a duty to legislate in a certain way or a prohibition on certain kinds of rule creation. One of the really nifty things about Hart's introduction of the distinction between primary and secondary rules was his account as to why secondary rules are important. We can certainly imagine a system in which there were primary rules, but no secondary rules. This would be a system of customary law. Certain actions would be required; others would be taboo. But there would be no mechanism by which the set of obligations could be changed. Of course, customary law need not be completely static. It is possible that customs might gradually change over time, but this process would require a change in social norms. It could not be legislated. Secondary rules enable relatively more rapid legal change at a lower cost. Moreover secondary rules enable individuals to create customized primary rules that govern their private relationships or privately owned resources. Hart's method combined the careful analysis of twentieth-century analytic philosophy with the jurisprudential tradition of Jeremy Bentham, the great English legal, political, and moral philosopher. Hart's conception of law had parallels to the Pure Theory of Law formulated by Austrian legal philosopher Hans Kelsen, though Hart rejected several distinctive features of Kelsen's theory. identifying primary rules of obligation. The criteria may take any one or more of the variety of forms:

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necessary for the existence of law, and whether either the presence or the absence on limits on the sentiment, and belief are present in abundance to survive a regime of unofficial rules. The problem with A concept of "open-textured" terms in law, along the lines of Wittgenstein and Waisman, and "defeasible" terms (later famously disavowed): both are ideas popular in Artificial intelligence and law

The Concept of Law (1961) by English legal philosopher Herbert Lionel Adolphus (H.L.A.) Hart revisits foundational philosophical tracts regarding law to analyze, reject, or expand their theories of law and social control. He ultimately concludes that the idea of law is a social construction with no direct tie to an equal, fair, and prosperous society. After graduating from Oxford, Hart worked for MI5 (Britain’s FBI) for several years, before becoming Professor of Jurisprudence at Oxford. (Jurisprudence is the study of law). Several historians and theorists consider The Concept of Law to be the most important work on jurisprudence of the 20 th century. Barry Hoffmaster [26] gives a natural response to Smith’s concern. To answer Smith’s first concern, he stated that social pressure could function as a motive. To answer Smith’s second concern, he stated that the social pressure present for the need for conformity explains why everyone is under an obligation. Hart stresses that what is necessary is an internal point of view and stemming from that, what he calls A distinction between the internal and external points of view of law and rules, close to (and influenced by) Max Weber's distinction between the sociological and the legal perspectives of law.

According to Hart, the presence of an obligation binding on an individual implies the fact that there are rules imposing such. However, not all rules impose an obligation, and Hart gives the example of the rules of etiquette [4].

said to depend or come as a result of attitude, but attitude is explained by reference to criticism and its reference to a wish or will that such pattern of conduct be upheld. Such wishes are based on feelings

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not steal or commit crimes. Hart therefore brings in the internal and external points of view. He says individual legislators, it is natural to use expressions like the ͚ƌƵle of ƐƵcceƐƐion͕͛ ͚ƚiƚle͕͛ ͚ƌighƚ Postema, Gerald (2011). Enrico Pattaro (ed.). Legal Philosophy in the Twentieth Century: The Common Law World. A Treatise of Legal Philosophy and General Jurisprudence. Vol.11. Springer. p.261. Hart's war work took him on occasion to MI5 offices at Blenheim Palace, family home of the Dukes of Marlborough and the place where Winston Churchill had been born. [ citation needed] He enjoyed telling the story that there he was able to read the diaries of Sarah Churchill, Duchess of Marlborough, wife of the founder of the dynasty John Churchill, 1st Duke of Marlborough. Hart's wit and humanity are demonstrated by the fact that he particularly enjoyed the passage where Sarah tells that John had been away for a long time, had arrived suddenly, and "enjoyed me straight way in his boots". Another incident of life at Blenheim which Hart enjoyed recounting was that he shared an office with one of the famous Cambridge spies, Anthony Blunt, a fellow member of MI5. Hart wondered which of the papers on his desk Blunt had managed to read and to pass on to his Soviet controllers. a b Honoré, Tony (2004). "Hart, Herbert Lionel Adolphus". In Matthew, H. C. G.; Harrison, Brian (eds.). Oxford Dictionary of National Biography. Vol.25. Oxford University Press. pp. 575–580. ISBN 019861411X. OCLC 54778415.

Hart’s concept of the legal system is only based on the officials of the system recognising the authoritative source of law and accepting the rule of recognition and regarding it as something that is ought to be obeyed from an internal point of view [10]. The community members only have to comply with the primary rules of the system; hence they do not have to “accept” them from an internal point of view or recognising the rule of recognition. Hart feels that being obliged/ forced to something is a psychological state dependent upon externalHart draws a distinction between a social habit (which people follow habitually but where breaking the habit does not bring about opprobrium - going to the cinema on Thursday for example) and a social rule (where breaking the rule is seen as wrong - neglecting to take off one's hat upon entering a church, for example). We feel in some sense bound by social rules and laws frequently appear to be types of social rule. the master rule; The Rule of Recognition. Hart says that the ROR is a simple or a complex instrument