3. Wednesday, January 26, 2011

3. Wednesday, January 26, 2011 - H.L.A Hart Why a legal...

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H.L.A. Hart Why a legal system needs secondary rules? If you are going to reject the command theory, you need your own positive theory. A. Hart’s own account of a legal system: law as the union of primary and secondary rules 1. Why a legal system needs secondary rules? - he does not suppose that such a society could really exist - it should sound amazing, but it couldnt exist unless it was a very small group of people - he asks us to imagine a society where: there are only rules telling people how to behave (don’t murder people, don’t ruin people’s property) there is no legislature, no courts, no officials, no police force or rules about how to interpret and apply and enforce these rules, as they are just the basic rules - what kind of problems would this society face? problem of the static character of rules: not that such a society could never evolve regarding beliefs or moral practices, but there is no deliberate way of doing this at a particular point in time where the society would recognize the changes made, they cannot eliminate old rules or change new onces, because the possibility of doing this presupposes the existence of rules of a different type from the primary rules of obligation by which alone the society lives problem of inefficiency: there is no authority to help resolve any sorts of disputes, or the police for to exert pressure on people to conform, there is no agency empowered to ascertain finally and authoritatively the fact of violation, punishments are left to individuals or the group at large, this causes both lack of punishment and smoldering vendettas problem of uncertainty: if doubt arises regarding the rules, there is no procedure for settling this doubt, for such a procedure and the acknowledgement of authoritative texts or persons involve the existence of rules of a different type than the rules of obligation/ duty which are all the group has 2. Three kinds of secondary rules *you will never be asked to classify a secondary rule on a test* - the remedy to these problems, and they provide the centralized official sanction of the system ways that primary rules can be assertained, changed, implemented, who will do this, who will have authoritative word when making or changing a rule, and how people are to go about doing this, and who is going to go about enforcing these rules and how secondary rules are how primary rules go in and our of existence and how they do this they define a group of important legal concepts A. rule of recognition: any rule or group of rules that lays down the features that primary rules have to have if they are to count as rules in the particular legal system that we are talking about (ex: properly acted by the legislature, laid down by a judge in a fair trial, conform to the constitution - if more than one of these characteristics are identifying criteria, provision may be made for their possibly conflict by their arrangement in an order of superiority), this fixes the problem of
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This note was uploaded on 11/18/2011 for the course PHL 271H1 taught by Professor Professormoreau during the Spring '11 term at University of Toronto.

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3. Wednesday, January 26, 2011 - H.L.A Hart Why a legal...

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