Jurisprudence

Only available on StudyMode
  • Topic: Law, Jurisprudence, Legal positivism
  • Pages : 20 (5865 words )
  • Download(s) : 20
  • Published : February 26, 2013
Open Document
Text Preview
6

A master rule for law: Hart’s rule of recognition

Contents
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .80 6.1 6.2 6.3 Identifying the rule of recognition . . . . . . . . . . . . . . . . . . . . .81 Criticism of the rule of recognition . . . . . . . . . . . . . . . . . . . . .83 The Postscript . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .85 Reflect and review . . . . . . . . . . . . . . . . . . . . . . . . . . . . .89

page 80

University of London International Programmes

Introduction
This chapter pays particular attention to what is probably the major focus of Hart’s theory: the set of criteria through which laws are identified. Hart is very specific about how we identify the rule of recognition, namely, that its existence is a question purely of empirical fact. It is therefore appropriate in this chapter to see what he says about legal method in his now well-known Postscript to The Concept of Law, because there he affirms that his aim all along in his work was just to give a factual account of law, one that did not import any moral judgment.

Learning outcomes
By the end of this chapter and the relevant readings you should be able to:  

describe the rule of recognition in detail describe what Hart calls ‘the necessary and sufficient conditions of the existence of a legal system’ explain the significance of the rule of recognition for Hart for establishing his particular form of legal positivism discuss critically Hart’s claim that the rule of recognition is identified as ‘a matter of fact’ outline the main arguments put by Dworkin in his criticism of the rule of recognition theory express your own opinion about the ‘ultimate’ criteria of legal validity, supported by reasons describe in general terms the position that Hart takes in the Postscript give an account of the significance of the Postscript (a) for interpreting the main doctrines of The Concept of Law and (b) for understanding law generally.









 

Essential reading
 

Hart, H. ‘Postscript’. Dworkin, R. Taking Rights Seriously. (London: Duckworth, 1978) [ISBN 0715611747] Chapter 2. Finnis, J. Natural Law and Natural Rights. (Oxford, Oxford University Press, 1980) [ISBN 0198761104] Chapter 1. Guest, S. ‘Two strands in Hart’s The Concept of Law in Positivism Today. (Aldershot: Dartmouth, 1996) [ISBN 1855216892] p. 29. Hart, H. Essays in Jurisprudence and Philosophy. (Oxford: Oxford University Press, 1983) [ISBN 0198253885] pp. 62–72 (on the ‘core’ and the ‘penumbra’ of legal rules). MacCormick, N. Legal Reasoning and Legal Theory. (Oxford: Oxford University Press, 1978) [ISBN 0198760809] Appendix, p. 275. Case: R. v Registrar of Births, ex parte Smith [1991] 2 QB 393; Riggs v Palmer 115 NY 506 (1889).











Jurisprudence and legal theory 6 A master rule for law: Hart’s rule of recognition

page 81

6.1 Identifying the rule of recognition
Essential reading


Hart, Chapter 6: ‘The Foundations of a Legal System’, pp.94–110; Chapter 7: ‘Formalism and Rule-Scepticism, pp.147–154, and Postscript, pp.246–268, 292–295.

While you are studying Hart, you should distinguish a narrower, professional question from the general question – ‘What is law?’ – that Hart sets himself at the very beginning of The Concept of Law. This narrower question is ‘What is the law?’ and it is narrower because it leads to a more precise specification of the issue on which knowledge of the law is required, and (most importantly) a specification of the legal system to which the question relates. Someone who asks, for example, ‘What is the law concerning mortgages in England?’ will be disappointed by the reply that ‘it is the union of primary and secondary rules’ (the answer to the ‘general question’), considering it to have no practical relevance. Hart’s reply would depend on his theory of legal validity. Briefly, his answer is that the law on a particular topic in a...
tracking img