February 10, 2015 Positivism and the Separation of Laws and Morals H.L.A. Hart Legal Positivism - Legal positivism can be summarized as follows o The Social Thesis  Whether a rule or principle counts as law in a given society is a matter of nothing but social convention- More specifically, the law for a given society is just whatever has been enacted by the lawmaking agent of that society o The Separability Thesis Law is completely separate from morality - More specifically, the question whether a principle is law is separate from the question of that principle/law’s morality - Legal positivism does not deny that laws can be evaluated from a moral point of view. - You can accept legal positivism and still think it makes sense to ask whether a law is morally good. H.L.A. Hart - As a legal positivist, Hart agreed with Austin that law and morality are conceptually separate. - But he thought that Austin’s definition of law was too narrowo It is accurate for some areas of the law, namely, the ones that threaten punishment, like criminal law o It is inaccurate for laws that facilitate action, e.g., contract law, which “describes conditions someone must fulfill in order to enter into a legally enforceable agreement” - In improving on Austin’s legal positivism, Hart provides us with a version of positivism that is not a command theory of law. - To improve on Austin’s version of legal positivism, Hart introduced the distinction between primary and secondary rules. o Primary rules (rules of obligation): rules that create obligations by saying what people must or must not do All societies, even primitive ones, must have this sort of rule. - At a minimum, they must have primary rules against “the free use of violence, theft, and deception”  Lying behind this idea is that there are some rules that every viable society must recognize in order to continue as a society at all.- In a society in which no one could depend on not being killed by his or her neighbor, people would not associate with others, and social living would be impossible. - In a society in which there was no rule requiring parents to take care of their children, the youngest generation would not survive, and so the society would, too.  If this is the only sort of rule the members of a group have, they are facedwith three problems: - They are in a state of uncertainty. o When there is disagreement about what exactly these rules say, or about whether a given principle is a rule, thereis no established way of settling the disagreement. - The rules will be static (relatively unchanging), since there is no way of deliberately altering them. o The only way they can change is by slow or natural evolution. o “There will be no means, in such a society, of deliberately adapting the rules to changing circumstances, either by eliminating old rules or introducing new ones…” - This sort of system will be inefficient, by which Austin means thereis no way to settle disputes about whether a given primary rule really has been violated o Secondary rules: rules that are about primary rules and that confer power related to those rules. o There are three types of secondary rule (each type corresponds to one of the problems listed above) Rules of Recognition: rules that specify the criteria for determining whether a given rule is a primary rule. - In Hart’s words, such rules “specify some feature or features possession of which by a suggested rule is taken as a conclusive affirmative indication that it is a rule of the group to be supported by the social pressure it exerts” - It is “whatever a legal system uses as its final authority for determining whether something is a law” o These help to remedy uncertainty.  Rules of Change: state procedures for making new laws and changing existing ones- These help to remedy the static character of primary rules  Rules of adjudication: “confer competence upon judicial officials to judge and enforce the law” - These help to remedy the inefficiency described by Austino In sum, secondary rules provide “ways in which the primary rules may be conclusively ascertained, introduced, eliminated, varied, and the fact of their violation conclusively determined” - Hart used the concepts of primary and secondary rules to define law. o Law (defined by Hart): a union of primary rules of obligation and secondary rules - The distinction between primary and secondary rules helps Hart avoid a problem faced by Austin’s view. - If Austin were correct, then the sovereign would be completely above the law. - But on Hart’s legal positivism, there need be no sovereign who is the source of law and therefore must stand outside the law. - Whether a given principle counts as a primary rule does not depend on the say-so of anysovereigno Rather, it depends on whether it meets the criteria set forth in the rules of recognition. - Two further details about Hart’s legal positivism: o He insisted that it makes sense to evaluate a system of law from a moral point of view.  “Hart considered himself to be a critical moralist and thought that the separation of law from morality should encourage unrelenting moral criticism of law”  “He believed the separation thesis should prevent the uncritical acceptance of a law as a moral simply because it was law.”Law As the Union of Primary and Secondary Rules H.L.A. Hart - Hart identifies the rules of tort and criminal law as “primary rules,” and the rules of contract law as “secondary rules” The Idea of Obligation - It will be recalled that the theory of law as coercive orders, notwithstanding its errors, started from the perfectly correct appreciation of the fact that where there is law, there human conduct is made in some sense non-optional or obligatory. - In a normal legal system, where sanctions are exacted for a high proportion of offences, an offender usually runs a risk of punishment. o Usually the statement that a person has an obligation and the statement that he is likely to suffer for disobedience will both be true together. - “He ought to have” and “he had an obligation to” are not always interchangeable expressions, even though they are alike in carrying and implicit reference to existing standards of conduct or are used in drawing conclusions in particular cases from a general rule.- One of the difficulties facing any legal theory anxious to do justice to the complexity of the facts is to