hart's theory of law

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

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?

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