SOCIOLOGICAL THEORY OF H.L.A HART

By: Joel Choo Xuein Wei (1142700043)Nora Enira (1142700041)Pavitra Jagathison (1142700040)Mohamad Syakir (1142700038)Henry Ho Yit Yao (1142700042)

Brief Background

Professor H.L.A Hart’s Theories

• The Concept of Law • Legal Positivism• Similar to The Pure Law Theory by Hans

Kelsen• A critique of Devlin• A critique of John Austin's theory• The Rule of Recognition• The Rule of Change• The Rule of Adjudication

H.L.A Hart critiques

• He is a critique of John Austin's theory that law is the command of the sovereign backed by the threat of punishment.

• He is also a critique of Devlin, and argued that Devlin’s case against liberty blurs the distinction between paternalist law.

The Concept of law H.L.A Hart analysed of the relation between law, coercion, and morality, and attempts to clarify the question of whether all laws may be properly conceptualized as coercive orders or as moral commands. Hart says that there is no logically necessary connection between law and coercion or between law and morality. He explains that to classify all laws as coercive orders or as moral commands is to oversimplify the relation between law, coercion, and morality. He also explains that to conceptualize all laws as coercive orders or as moral commands is to impose a misleading appearance of uniformity on different kinds of laws and on different kinds of social functions which laws may perform. He argues that to describe all laws as coercive orders is to mischaracterize the purpose and function of some laws and is to misunderstand their content, mode of origin, and range of application.

H.L.A Hart’s Legal Positivism

Hart restated the legal positivism by saying that the law should be looked at internally as a set of rules. These rules are divided into two categories: Primary and secondary, such that a primary rule governs conduct, such as criminal law and secondary rules govern the procedural methods by which primary rules are enforced, prosecuted and so on. Hart specifically enumerates three secondary rules; they are:

• The Rule of Recognition• The Rule of Change• The Rule of Adjudication

The Rule of Recognition

The Rule of Recognition, the rule by which any member of society may check to discover what the primary rules of the society are. In a simple society, Hart states, the recognition rule might only be what is written in a sacred book or what is said by a ruler. Hart claimed the concept of rule of recognition as an evolution from Hans Kelsen's “Grundnorm", or "basic norm."

The Rule of AdjudicationThe Rule of Adjudication, the rule by which the society might determine when a rule has been violated and prescribe a remedy

The Rule of ChangeThe rule by which existing primary rules might be created, altered or deleted.

law and rules

H.L.A Hart states that there is 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.

H.L.A Hart Sociological

Theories

The Rule of Change

The Rule of Adjudication

Criticizes Devlin and John Austin

Parallel to The Pure

Law Theory

The Concept of Law

Legal Positivism

The Rule of Recognition

Comments