HART CONCEPT - H L A HART CONCEPT OF LAW H.L.A Hart in his...

This preview shows page 1 - 3 out of 8 pages.

H. L. A HART CONCEPT OF LAW H.L.A Hart in his works ‘concept of law ‘is known to have objected to Austin’s command theory but still maintains that law should be separated from morals. Hart brings about the concept of an accepted rule. His view is that law is a social concept that can only be comprehended by observing the social practices of a community. Every society needs fundamental rules to govern it. These could be relating to morals, etiquette and obligations. The obligations in this sense can be either moral or legal rules. According to him law is a system of rules. The legal rules can be divided into 2; that is primary and secondary rules Primary rules tend to prescribe, prevent or regulate behaviour in every area with which the law is concerned. These are laws against theft, violence, fraud etc. They are essentially substantive laws which comprise of the biggest part of positive laws in a legal system. They tend to define rights and duties of citizens which is basically most of criminal and civil law. Mostly applies to a primitive society .it’s not legislated but comes up as a result of practice and acceptance. Its validity is determined by whether the rules are accepted by the members of the community which could be a tribe. These rules no longer apply to the modern society. In this kind of society, the only means of social control is the attitude of the group towards behavior that it will accept as permissible. Such society is one that lives by primary rules of obligations alone. They are certain features which make primary rules exist in a society. They are as follows: 1. They must include rules which contain restrictions on violence, theft, and deception. 2. The majority must accept them, though some minority might not agree with them. 3. The society must be a small one, with close ties of kinship, common sentiments and beliefs.
Image of page 1

Subscribe to view the full document.

4 There should be a stable environment. Defects of primary rules in a legal system 1) Uncertainty of determining what the primary rules are since they is no specific procedure of making them and neither are they contained in a text with authority to be referred from. 2) The rules would be rigid and static since there would be no law necessitating their change as times change. 3) There would be no dispute resolution mechanisms whenever a rule is broken. Hart considers this as the most serious defect. 4) There would be no body with the mandate to impose punishments for breaking the rules. Conformity with the rules would only be secured by defuse social pressure, or by punishments meted out by the group as a whole. This would be an inefficient way of ensuring that the rules were observed since there would be a lot of disorganization n hence wastage of time.
Image of page 2
Image of page 3
  • Spring '16
  • Law, primary rules, H.L.A Hart

What students are saying

  • Left Quote Icon

    As a current student on this bumpy collegiate pathway, I stumbled upon Course Hero, where I can find study resources for nearly all my courses, get online help from tutors 24/7, and even share my old projects, papers, and lecture notes with other students.

    Student Picture

    Kiran Temple University Fox School of Business ‘17, Course Hero Intern

  • Left Quote Icon

    I cannot even describe how much Course Hero helped me this summer. It’s truly become something I can always rely on and help me. In the end, I was not only able to survive summer classes, but I was able to thrive thanks to Course Hero.

    Student Picture

    Dana University of Pennsylvania ‘17, Course Hero Intern

  • Left Quote Icon

    The ability to access any university’s resources through Course Hero proved invaluable in my case. I was behind on Tulane coursework and actually used UCLA’s materials to help me move forward and get everything together on time.

    Student Picture

    Jill Tulane University ‘16, Course Hero Intern