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SummaryOf Hart's Theories of Law & Adjudication
SUMMARY OF
H.L.A HART THEORIES OF LAW AND ADJUDICATION
§ Hart is a soft positivist: legal theory that believes
society may incorporate principles of morality.
§ Criticized on Austin’s command theory saying in the
modern legal system not sufficient of merely having it back by threats and
sanctions.
§ Being
Obliged: à forced to
obey the law by threats and punishments. Here, they will obey the law and to
allow prediction of what people would do.
§ Having
Obligation: à feeling for one reason or another that we ought to
obey the law. It is made out of habit as well, a sense that it is the right
moral thing to do.
§ Hart does not require sanction to have the matter
understood as law.
§ White Man’s Magic:à
It is to confound (confuse) dark powers of legislation. Besides that it is on
the matter on constitutionalism words that will not lead to anything and
therefore make known as the White Man’s version of Ghost Dance. It is also a
term used to describe sovereign ideologies which are misplaced.
§ For legal system to be effective; it must have
ü
There must be a
general adherence to the primary rules by the bulk of the operation
ü Officials must also accept though not necessarily
approved (see example of passing of our constitution where public might not be
aware but officials are)
Critique of Rule of Recognition
1.
John Finnis:
à Hart leaves insufficiently specified the most of
attitude towards the rule of recognition that the officials have. There must be
a central set of elements that constitutes official’s acceptance of rule or
recognition.
2.
Dworkin:
à does not
agree that allowing the judge’s discretion to make law than to enforce in
through cases.
Hart
v Fuller Debate on morality
v So now after the 2nd World War and
collapsed of Third Reich, focus was immediately given to the case which is
known as “grudge informer” case. Grudge cases are understood as for those who
lived under the Nazi jurisdiction to use the oppressive laws and procedures for
personal satisfaction or settlement, grudges and ambitions.
v This defendant here wants to get rid of her husband
who is a German soldier and she therefore went and made report to the
authorities that he had made unpleasant critics of Hitler. Upon this, he was
then convicted and condemned to death but was postponed.
v The woman here was held guilty because she made such a
report with bad intention and malice by the postwar (west) German Court. The
judgment was not made due to the invalid law on moral grounds.
-
There was
later some misunderstanding which had led to the debate between Hart v Fuller
when they had the impression that the postwar court had decided that the laws
in question were formally invalidated due to immoral substance, but the
judgment actually was not make based on the moral principles-
Argument on Grudge Informer Case
|
HART
|
FULLER
|
|
Hart admitted that actions
of grudge informers may have deserved punishment but if want to punish should
enact a retrospective law instead on bringing up the question of morality.
|
Formalistic conception of
duty to obey and in the past during Nazi’s time, they had no choice but to
consider moral question in their attempt to rebuild viable legal order.
|
|
Look at what existed in
the legal system at that time
|
He don’t embrace natural
law in religious sense but treats morality on par as international law
|
|
Whether rules was unjust
or irrational don’t affect legal status
|
Strong moral reason to
disobey the law can outweigh the morality of fidelity
|
|
Moral issues (positivist
view) should not be considered within legal system
|
If law is immoral it loses
its legitimacy and provides strong reasons for not enforcing it
|
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It should not invalidate
law on the basis of moral judgment
|
Linked to technical law
making process where for law to be legitimate, must be in accordance with
natural law principle
|
|
Nazi’s laws were
legitimately enacted and enforced
|
Suggested the law of
grudge informers operating are not likely valid in moral sense so it is not a
system of law but system of terror
|
|
Wife should not be
punished for the following law
|
Retrospective legislation
merely gives effect to illegitimacy of Nazi laws.
|
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Retrospective legislation enforced validly
|
|
·
In 1942, Hitler launched
operation Barbosa to attack Russia and its plan was to take Moscow by Christmas
·
German soldiers did not
prepare winter clotting thinking they can defeat on time
·
However, underestimated
Russian soldier and German soldiers were here trapped in Stalingrad without
enough food and winter clothing
·
Commander in Chief General
Paclus received instruction from Hitler to continue fighting
·
Commander in Chief General
Paclus was captured and sent to Russia as POW, they surrendered
·
That winter was the coldest in
12 years and Russia Front was the battle front
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