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hart's theory of law [dbe91307]

Tags: jurisprudence

  • Hart considers the law as conferring powers and imposing duties

  • Core focus on the soverign and soverign powers

    • States laws is a social rule

  • Counters austin's theory of law

    • Austen's theory of law has key issues

      • Duty imposing laws
      • Continuity of laws
      • Intelligbility of laws

1. 3 Problems Addressed by Hart

  • Assume a pre-legal society where "laws" are social customs

  • Problem of Uncertainty

    • What is a rule? When does a "rule" become a rule?

  • Problem of Stasis

    • How do we change rules? If a pandemic sweeps through the society, can we change it in response or do we need to wait for people to die out first?

  • Problem of Inefficiency

    • If I say a rule is interpreted one way and you say another, how do we resolve those disputes?

2. Solutions

  • Metarules -> Rules that guide what rules are

    • Could be "things written in stone are rules" or "things the shaman says are rules"

  • Rule of change

    • Have a rule conferring the authority and positions to change the rules

  • Rule of adjudication

    • Have a rule that adjudicates which rules are which