Hart
This paper will be an argumentative paper, criticizing Hart's theory of law including his thoughts on the internal aspect of it and their {his thoughts} applications within the legal system that Hart creates. Hart invests a great deal of his theory into explaining the role of law as a form of social control, and why people feel obligated to succumb to or obey as he prefers, these forms of manipulation. Hart questions things such as litigation and judicial discretion among many others and encourages society to do the same. Hart's theory of law has been very influential in the past century and we shall see why in the following analysis. His model and account of the nature of law has resolved many issues in question including accountancy for non-criminal statutes and majority attitude to law or how the populace reacts to laws administered; he explains how a valid rule can exist even is nobody obeys it and distinguishes between normative existence of rule from behavioral descriptions of it. Following this will be a discussion of a secondary treatment of the issue(s); in other words, Hart's theory of Law and the internal aspect of it; the piece in question will be Radbruch’s Five Minutes of Legal Philosophy.
The seriousness of social pressure to obey is the primary factor in determining whether something is an obligation. An obligation is a sense of ‘ought’, it exists without the implications of beliefs or motives. On the other hand, to be obliged by somebody rather then obligated by them, is one external and two, forcing someone to do something with regards to beliefs and motives. The internal feeling of obligation seems to be considered necessary to the maintenance of social life. Although, those you follow these ‘internal’ rules find them very binding. Following this, Hart parallels social rules and social habits when he says on page 55: “ There is certainly one point of similarity between social rules and habits: in both cases the behavior in question must be general though not necessarily invariable; this means that it is repeated when occasion arises by most of the group: so much is, as we have said, implied in the phrase, “They do it as a rule.”” This statement draws out another point in Hart’s nature of law, which is that law is general, in other words that it is a general type of conduct ‘ordered’ or ‘commanded’ to a general type of person. Law does not discriminate; it’s intent is to provide society with a sense of justice and equality. While discussing discrimination, one must consider the origin of law to be an important aspect of the nature of law. Origin implies custom but custom is not law and particular origins do not guarantee law. “Nothing can be law unless it has been ordered by someone; a statute has already been ’ordered’ whereas custom has not.” (Hart, p 47) A custom must be used for litigation purposes before it can obtain the status of law. As stated, customs are never viewed as law in the legal system but ironically enough, most law are fashioned after custom, it would be safe to assume that the reason for this is because society is habituated to those ’ways’ as rules and it would be very intelligent on the behalf of politicians to preemptively use that to their advantage when considering laws in which to pass. Law rises above all custom though and habitual social stagnancy, it applies to all as equals [democracy] in order to obtain social control governed by one individual it must reinvent existing customs as it’s ‘own’ law! y complex theory on the nature of law including many facets such as rules, habits and the different types of obedience merited to each. Without summarizing, it would seem that Hart's theory makes certain suggestions on obedience and the authority given to a sovereign. The general theory of legal system foundations is parallel to the doctrine of sovereignty, which states that regardless of type of law present in a society, in other words democracy, monarchy whatever.......subjects habitually obey a sovereign who in turn obeys no one. In order to understand this though, it must be clear what term obedience or to obey means and just what exactly fulfilling that act entails. According to Webster’s New World Dictionary, the word obedience is defined as “docility, submission, compliance” (1974, 303). According to Hart, obedience suggests acts done from will in accordance with that of the sovereign; not simply acts done out of fear of
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Approximate Word count = 2213
Approximate Pages = 9 (250 words per page double spaced)
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