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Analytical Jurisprudence: Hart's Theory
Analytical
Jurisprudence: legal theory that tries to understand nature of law and H.L.A
Hart is probably an influential person in this.
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It is the
analysis of existing conceptual framework of and about law. (law matters
discussion).
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Constructs new
conceptual framework and rational justifications of practices that are existing
and what to be proposed.
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Language based
analysis
§ Austin came up with his Theory of Command which was
later criticized by Hart as well as on the position of Austin’s laws properly
so called.
ü Theory
of Command:-
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Law is the
command of sovereign backed by sanctions for non compliance
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It is a
sovereign if the bulk of community would have the habit to obey and submit to
that law
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Austin insisted
command theory supports legal positivism
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Sovereign can
issue morally acceptable/wicked commands & moral is another thing to look
at
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Hart says can
suit in criminal and tort matter but may not be sufficient in the modern legal
system if merely back by threats.
ü Laws
Properly So called
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This involves
the discussion of what are laws properly so called and not properly so called.
Refers to the discussion of international law.
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Positive laws
set by political superiors who are sovereign
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Species of
command where it not complied can be punished when disobeyed.
ü Laws
Improperly So Called
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Austin claims
international laws are laws improperly so called because it doesn’t derive from
that sovereign and lacked of power to command compliance. Form of morality set
and mere opinion. It is law by analogy
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The criteria to
determine if they are laws properly so called or improperly so called is based
on:-
i.
Sovereign
ii.
Command
iii.
Sanction (need
to fulfill this to saw properly so called)
If they don’t have political
sovereign means no strict sense of positive law and therefore are laws
improperly so called. Other criticisms of Austin theories is that is does not
encompass variety of laws.
Back to HART
Legal system is a system of
social rules and they regulate the conduct of members in the society and social
rules can be divided into 2:-
A.
Primary rules à where it imposes rules such as criminal law and torts
law rules (substantive rules)
B.
Secondary rules à conferring the rules such as rules that facilitate or
regulate, governing composition of court etc (procedural rules and adjective
rules)
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Divided into 3
different types of rules here:-
·
Rules of
adjudication: example judges
have the authority to pass judgments to order damages and sentence.
·
Rules of
change: Allow the change by giving
parliament the power to enact legislations so that they can amend and enact
legislations accordingly based on the change of the social behavior and
development. Examples would be the enactment of Malaysia’s Law Reform Marriage
& Divorce Act as well amendment to the Penal Code.
·
Rules of
recognition: It is the rule
that is accepted by common standard of the public officials. (look into rule of
behavior as well where it is valid according to system and must generally be
obeyed by the people). To determine whether or not the rule is part of the
legal system. (1) Single rule or recognition, (2) various criteria of
validity where it is supreme and not necessarily the sole or ultimate.
§ Hart further went on to state that in primitive forms
they follow the common standard but no power conferring to secondary rules but
when the society has developed, concept of legislature should be introduced. (This is similar to what Jean Jacques
Rosseau stated)
§ Hart provides that primitive law and international
laws are laws.
§ Acknowledges overlap between law and morality but not
necessarily derive from morality
§ Both the primary and secondary rules have internal and
external aspects.
A.
Internal Aspect: not only
looking at the social pressure but also viewpoint of people from the inner on
the matter. For example Johovah witness on the issue of blood transfusion. What
would one from the inside compared to the outsider think. Rules of habits is
different from this. There is moral justification to it as well.
i.
Committed
statements: made by persons
who accept the rules
ii.
Detached
statement: made by person who accepts
but don’t commit themselves.
B. External
Aspect: What outsider would describe the law as.
CRITERIA FOR MATURE LEGAL SYSTEM
-
Legal system
officials must accept certain standards as part of rule of recognition
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Accepted and
practiced by the officials
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Do not need to
approve of it as morally good/justified rule
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Private citizens
also obey the rule generally
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