The Concept of Law

Topics: Law / Pages: 8 (1950 words) / Published: Sep 26th, 2012
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

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