Hart’s theory and legal system
One of the principal lessons of ‘The concept of law’ is that legal systems are not only comprised of rules, but founded on them as well. In contrast to Austin who had insisted that the sovereign makes all of the rules, Hart argued instead that the rules make the sovereign. In this essay, I would like to explain Hart’s theory and how the social rules are related to the legal system and rules of recognition. This essay has five parts. In the first part, I try to illustrate the practice theory of rules (social rules). And I will explain the three differences between social rules and habits. In part two, I will try to explain the internal aspect and how the social rules are related to the legal system and briefly introduce both the primary rules and secondary rules as well. In part three, I attempt to detail the rule of recognition and the relationship between social practices and rule of recognition. In part four, I address one objection about Hart’s theory, which is about under-inclusive and over-inclusive of Hart’s theory. And I give an example to support my objection. In the final part, I will make a conclusion about my paper and give a briefly review to both the concepts and my opinions in this paper. Part One: Social rules (practice theory of rules)
For Hart, then, law is a matter of social rules. And there is certainly one point of similarity between social rules and habits. But in explaining a social rule, Hart first distinguishes a rule from a habit. In other words, he is concerned to explain when a habit becomes a rule. For example, members of a particular community engage in the habit of shaking hands as a form of greeting. Nobody told them to do so. Perhaps one person did it to another and the practice caught on. At that point, the practice was only a habit, and not yet a rule. It becomes a rule when it has acquired a certain degree of importance that the members feel it to be an obligation to shake hands upon meeting and consider people rude who refuse to do it. Prior to that point, it was merely a practice of custom that most people complied with; in short, merely a habit. There was no feeling or sense of obligation that they had to shake hands upon meeting people. From this view, Hart distinguishes a habit from a rule in three important ways. Firstly, habits are made possible by the fact that various patterns of behavior can, in fact, converge. Consider, for example, a pattern of regular customers to watch a movie on Friday nights. Actually, this practice is not quite ‘rule-governed’ follows from the fact that any failure by the people to go to the theatre at Friday evening would result in no serious criticism or some pressure to conform. In fact, these kinds of people are probably not even aware of their regular behavior or routine. To them, going to watch the movie at Friday to engage in some terrific relaxation is simply something they ‘happen to do’. In other words, it is converge of behavior. Secondly, where there are such rules, not only is such criticism in fact made but deviation from the standard is generally accepted as a good reason for making it. Criticism deviation is regarded as legitimate or justified in this sense, as are demands for compliance with the standard when a deviation is threatened. The third differences between social rules and habits are internal aspect of rules. It is this internal aspect of rules that distinguishes merely convergent, habitual behavior from genuinely rule-guided conduct. These rules are distinguishable from mere ‘habit’ by the fact that a significant portion of observers view these rules from an internal perspective. Furthermore, Hart argues that social rules possess both an internal and external aspect. A social rule has an internal aspect, in addition to the external aspect which it shares with a social habit and which consists in the regular uniform behavior which an observer could record. All in all, a rule exists...
Please join StudyMode to read the full document