Hart's Views Research Articles

Use of Discretion in Criminal Acts by the Police in Hart's View

Use of Discretion in Criminal Acts by the Police in Hart's View

A challenge to Bix's interpretation of Kelsen and Hart's views on the normativity of law

Brian Bix discusses questions of legal normativity, arguing (1) that Hans Kelsen’s theory of the basic norm is best understood as saying that a person may choose to presuppose the basic norm in order to interpret the actions of legal officials normatively; (2) that H. L. A. Hart is best understood as espousing a sui generis view of legal normativity; and (3) that Hart’s view is preferable to the rather popular view that law makes some sort of moral claim. I accept (1) but think it is rather trivial. I find (2) plausible but the view itself problematic, and am therefore skeptical of (3).

Is the Concept of Obligation Moralized?

Conceptual jurisprudence is concerned to explicate the concept of law and other concepts central to core legal practices, as we understand them. The centrality of obligation-talk to legal practice is obvious, as the very point of litigation is to resolve disputes regarding the obligations of the various parties. As H.L.A. Hart puts it, “where there is law, there human conduct is made in some sense non-optional or obligatory.” Accordingly, no conceptual theory of law can be wholly successful without an adequate account of the nature of legal obligation that also explains whether and how law creates legal obligation.Neither Hart nor Austin has a successful account of legal obligation. Hart rejects John Austin’s command theory of obligation on the ground that coercive commands can oblige, but never obligate, compliance; a sovereign threat of a sanction is as purely coercive as a gunman’s orders. But Hart's view is vulnerable to the same problem: a conceptually possible system in which citizens do not accept law or view law as providing any reasons for action seems as coercive with respect to citizens as a gunman’s orders are with respect to victims. In this essay, I argue that the problems afflicting Hart’s theory of obligation gesture in the direction of thinking that the general concept of obligation – of which social, legal, and moral obligation are subtypes – includes a conceptual moral constraint. Just as only a very good person can count as a “saint,” only a system of norms that satisfies certain moral norms can count as giving rise to “obligations.” Accordingly, I argue, as a conceptual matter, that only those institutional systems of social norms that satisfy some threshold level of moral respectability have the capacity to create obligations.

Objectivity and the Law’s Assumptions About Human Behaviour

Do laws rely on ‘true’ or ‘adequate’ assumptions? Should they? How do these assumptions relate to 'objective' facts, discovered by empirical sciences? What is the role of legal theory with regard to these assumptions?This chapter analyses a hitherto neglected aspect of law’s objectivity: the epistemic and methodological character of the law’s assumptions about human behaviour. Taking H.L.A. Hart's views on legal epistemology as a starting point, I suggest that the assumptions behind legal doctrines typically combine common sense factual beliefs, moral intuitions, philosophical theories of earlier ages and scientific knowledge. The task of the legal theorist is to provide a rational and critical foundation for these doctrines. Legal philosophy thus does not only contribute to law’s objectivity through conceptual clarification but also involves the legal scholars into substantive empirical and moral argumentation. I also discuss the reasons for and challenges to integrating empirical knowledge on human behaviour into legal policy and legal doctrines and point out the limits set by epistemic, institutional, and normative features of law to this integration.

The Concept of International Law in the Jurisprudence of H.L.A. Hart

This article analyses H.L.A. Hart's concept of international law from the perspective of anaytical jurisprudence and in light of the state of contemporary international law. The article challenges Hart's view that international law is �law� but not a �legal system�. Hart arrives at this conclusion on the basis of a comparison of the international legal order with the municipal legal system. This comparison is distorted by Hart's general focus on private law and criminal law and becomes less convincing when constitutional law is added to the equation. As a consequence, Hart's methodological approach is inconsistent and should be modified. Rather than asking whether international law resembles municipal law in form, it should be asked whether international law encompasses legislative, executive, and judicative structures which are able to perform the same functions as the legal order of a nation state, and which thereby overcome the defects of a primitive social order. Against the background of this modified analytical framework, Hart's analysis is revisited in light of recent developments and changes in the structure of international law at the beginning of the 21st century.

Jurisprudence and Judicial Ethics

The fundamental value in judicial ethics is impartiality. This means that a judge is duty-bound to decide cases on their merits, be open to persuasion, and not influenced by improper considerations. The paradigm case of unethical behavior by a judge is taking a bribe to decide a case in favor of one of the parties. This kind of corruption, which is fortunately rare in many developed countries, is also relatively uninteresting from an intellectual point of view. A more difficult case of failure of impartiality, conceptually speaking, involves a judge who relies on extra-legal factors as the basis for a judicial decision. Making sense of judicial ethics therefore requires a distinction between factors a judge may take into account when rendering a decision, and those which are excluded from consideration. In American legal discourse, this distinction is often stated in terms of law vs. politics, where politics is used to mean any normative view that is not incorporated into the law. In contrast with legal decisions made by actors within the executive branch of government, in which policy and ideological factors may play a role, judicial decisions are supposed to be justified solely on the basis of legal reasons. The general theme of this paper is that the role of the judge, and the subject of judicial ethics, cannot be discussed in the abstract; the analysis must have a foundation in some view about the nature of law. Talking about legal reasons and criticizing judges for relying on non-legal reasons presupposes a tenable distinction between the legal and non-legal domains. This, of course, is one of the principal points of contention between legal positivists and their critics. On the other hand, if some kind of moral or political argument is required to differentiate between law and non-law, it is not simply an empirical matter to draw a boundary separating inside from outside. The distinction between law and non-law would be evaluative and contestable, and would make reference to the very sorts of political, ideological, and policy reasons that may or may not be part of the law. The claim that the possibility of a value-free distinction between law and non-law is untenable is at the heart of Ronald Dworkin's theory of law. More specifically, the paper will discuss two aspects of the law-politics distinction. First, principles of judicial impartiality must take a position on the existence of judicial discretion and the problem of legal interpretation. The second area of discussion is the justification for certain restrictions imposed on judges by positive law (rules of judicial conduct, statutes, and court rules) often misleadingly referred to as rules of judicial ethics. At least in the United States, many of these restrictions purport to regulate bias and the risk that judges will not be impartial. Courts applying the rules governing judicial conduct often regulate prophylactically, by disqualifying judges from presiding over certain types of cases, based on conduct that is taken to be evidence of bias. However, the discussion of the Hart/Dworkin debate shows that the political viewpoints of judges may necessarily influence the outcomes of cases. In Dworkin's view, judging is inherently a political practice, because ascertaining the content of law is impossible without resort to normative political argument. In Hart's view, by contrast, it is possible to ascertain the content of law empirically, but there may be a further normative question about the best way to prioritize or balance competing legal considerations. I believe the right approach to judicial ethics is to focus on the application side of the distinction between the content of law (which may or may not be susceptible of determination on the basis of social facts) and standards for its application. Where there are multiple plausible interpretations of existing cases, statutes, and other applicable legal norms, all we can reasonably expect is that a judge deliberate in good faith and reach the conclusion she believes represents the best reading of the governing law. The subject of judicial ethics is essentially an attempt to flesh out the idea of judging in good faith. That, I suggest, is fundamentally about being prepared to give reasons in justification of a judicial decision.

Is the Rule of Recognition Really a Conventional Rule?

In this article I examine the view, common amongst several contemporary legal positivists, that rules of recognition are to be understood as conventional rules of some kind. The article opens with a discussion of H.L.A. Hart's original account of the rule of recognition in the 1st edn of The Concept of Law and argues that Hart did not view the rule of recognition as a conventional rule in that account. I then discuss Hart's apparent turn towards a conventionalist understanding of the rule of recognition in the ‘Postscript’ to the 2nd edn of The Concept of Law, and attempt to cast doubt on the strength of Hart's commitment to such a turn, and on the reasons prompting him to make it. Finally, I consider one of the most interesting contemporary conventionalist accounts of rules of recognition, namely Andrei Marmor's view that such rules should be understood as the constitutive conventions of partly autonomous social practices. My aim in this part of the article is to compare Marmor's account with my earlier interpretation of Hart's views, and to consider whether Marmor's account truly is conventionalist in character and whether it provides us with a persuasive conventionalist understanding of rules of recognition.

Spotlight on Stuart L. Hart

PurposeThis paper seeks to provide an interview with Professor Stuart Hart discussing how multinational corporations can be a catalyst for a truly sustainable form of global development, solving social and environmental problems while prospering in the process.Design/methodology/approachThis paper uses an interview technique to reveal Stuart L. Hart's views on how multinational corporations can be a catalyst for a truly sustainable form of global development.FindingsExplains the focus of the base of the pyramid or BOP protocol which emphasizes the need for multinational corporations (MNCs) to acquire a “native capability” in order to understand developing markets and identify and respond to local needs and requirements. Puts forward an argument for forging unconventional partnerships in developing countries and stresses the importance of finding the right local partners and building businesses from the ground up.Originality/valueThis paper provides some useful views on multinational corporations.

HOW LAW IS LIKE CHESS

This article strives to articulate some of the conventional foundations of law. The article consists of three main arguments. First, between H. L. A. Hart's conception of the rules of recognition and H. Kelsen's theory of the basic norm, Hart's view is more compelling. Second, the paper argues that the rules of recognition are social conventions but not of the familiar coordinative type, as some commentators have claimed. Finally, the article draws a distinction between deep and surface conventions, arguing that there are some deep conventions about what law is, and surface conventions that determine what counts as law in a particular community. This distinction between deep and surface conventions is employed to solve some of the puzzles about the nature of the rules of recognition.

How Law is Like Chess

This is an essay on the conventional foundations of law. The paper consists of three main arguments: first, that between HLA Hart's view on the rules of recognition and Kelsen's view on the basic norm, Hart's account is more plausible. Second, it argues that the rules of recognition are not coordination conventions, as some commentators have claimed, but conventions of a different kind. Finally, the paper draws a distinction between deep and surface conventions, arguing that there are deep conventions determining what law is, and surface conventions of recognition determining what counts as law in a particular community. This distinction between deep and surface conventions is employed to solve some of the puzzles about the conventional foundations of law.

Legal Obligation and Aesthetic Ideals: A Renewed Legal Positivist Theory of Law's Normativity

This article supports H. L. A. Hart's “any reasons” thesis (defended consistently from the first edition of The Concept of Law in 1961 to the Postscript to the second edition of 1994) that legal officials may accept law for any reasons, including non‐moral reasons. I develop a conception of non‐moral aesthetic ideals of official conduct which may provide legal officials with reasons to accept and apply even morally iniquitous law. I use this conception in order to rebut Gerald Postema's and Joseph Raz's criticisms of Hart's view, and suggest that my revisions offer reasons for renewed confidence in Hart's account of law's normativity.

A Postmodern's Hart: Taking Rules Sceptically

The Modern Law ReviewVolume 58, Issue 6 p. 788-819 Free Access A Postmodern's Hart: Taking Rules Sceptically Allan C. Hutchinson, Allan C. Hutchinson Professor and Associate Dean, Osgoode Hall Law School, York University, Toronto.Search for more papers by this authorOscar Wilde, Oscar WildeSearch for more papers by this author Allan C. Hutchinson, Allan C. Hutchinson Professor and Associate Dean, Osgoode Hall Law School, York University, Toronto.Search for more papers by this authorOscar Wilde, Oscar WildeSearch for more papers by this author First published: November 1995 https://doi.org/10.1111/j.1468-2230.1995.tb02053.xCitations: 2 AboutPDF ToolsRequest permissionExport citationAdd to favoritesTrack citation ShareShare Give accessShare full text accessShare full-text accessPlease review our Terms and Conditions of Use and check box below to share full-text version of article.I have read and accept the Wiley Online Library Terms and Conditions of UseShareable LinkUse the link below to share a full-text version of this article with your friends and colleagues. Learn more.Copy URL Share a linkShare onFacebookTwitterLinked InRedditWechat Citing Literature Volume58, Issue6November 1995Pages 788-819 RelatedInformation

Sanction and Obligation

H. L. A. Hart's criticism Austin's theory law is that it is essential ly false to facts. Austin asserts that Every positive law simply and strictly so called, is set by a sovereign person, or sovereign body persons, to a . . . person or persons in a state subjection to its author.1 Laws get their force from threat sanction. This view, which we may call the gunman theory law, is what Hart criticizes.2 Too many laws, he argues, do not look like commands backed by sanctions for us to find this theory compelling. I wish to defend Austin's theory against Hart's objections. In large part defense will be that Austin would accept virtually all Hart's views on structure actual laws and would fit them easily to gun man theory. As Kelsen wittily remarked his own dispute with Hart, Austin might find his dispute with Hart of a wholly novel kind because, though Austin would agree with Hart, Hart does not agree with Austin.3 My central thesis is that categories law that, it is often argued, do not fit gunman theory are either necessary to exercise law under that theory or are parasitic upon it. Those that are necessary are necessary for essentially either formal or strategic reasons. For example, laws that em power judges to act are formally necessary. Laws such as those under which judges declare contracts and other promises null are generally required for strategic reasons: they are necessary for giving judges and other actors under law a clear sense when law applies and when it does not. One way to put case for Austin is to say that his theory is motivated by concern with explanation how law works. Therefore he writes province jurisprudence. Hart's later concern is with definition. Therefore he writes concept Since Austin does not explicit ly avow his purpose as one giving an explanatory theory, one may sup pose that I tendentiously wish to do something with his project that is not his purpose. But I think that an effort to see how Austin's categories are related to distinctions that fit his apparent explanation how law works clarifies Hart's debate with him and suggests that much debate is a matter definitional quibbles that do not cut to central features Austin's theory. In particular, in an explanatory theory we would need to be centrally concerned with strategic nature many aspects law. It is a striking feature Austin's work that he seems generally alert to

LEVELS OF RULES AND HART'S CONCEPT OF LAW

In his note 'Levels of Rules and Hart's Concept of Law' (Mind, vol. lxxxi, January, I972) Professor D. Gerber argues against Hart's view that in the union of primary and secondary rules can be found the key to the science of jurisprudence. Gerber asks us to imagine that all of the rules of adjudication in a community are changed in 'non-systematic' ways-that is, in ways not provided for by the rules of change of the system (e.g. by mistake in transcription), and that these changes are accepted by the officials and citizens of the community. In such a case, Gerber maintains, Hart has a dilemma: he must hold either (i) that the new rule is a rule of the system and hence that a legal system exists, which is false; or (2) that the new rule is prevented from being a rule of the system by the existence of some tertiary rule, and hence that there is a hierarchy of higher levels of rules whose existence must be inferred or assumed, which Hart denies. In either case, Gerber concludes, 'Hart is wrong in thinking that he can account for the existence of a legal system in terms of primary and secondary rules alone'

“The Bearing of Myers v. United States upon the Independence of Federal Administrative Tribunals”—A Criticism

In a recent issue of the Review, Professor James Hart, of Johns Hopkins University, has advocated a limitation upon the doctrine announced in the Myers case so that Congress may prescribe the terms of office of the members of the various quasi-judicial administrative tribunals, and incidentally that of the Comptroller-General.The present writer's views on the status of the Comptroller-General are expressed elsewhere. He also dissents from Professor Hart's views on the expediency of granting to the various administrative tribunals any different terms of office from those which the Chief Justice indicated in the Myers case that they already have. This dissent is not a little supported by the practical suggestion of Dr. Hart. He indicates that “constitutional mores” are alone not enough to regulate the President's actions in exercising his power to remove, but that a definite term and formula should be prescribed and “constitutional mores” then depended upon to keep the President within the bounds of the formula. The limited experience of the present writer indicates that it is easier to satisfy a formula which is presumed to prescribe justice than to satisfy the dictates of justice on the facts of each case.Expediency, however, is a matter of opinion. One who attempts to criticize the logic and technique of another must accept the other's views of expediency.

“The Bearing of Myers v. United States upon the Independence of Federal Administrative Tribunals”—A Criticism

In a recent issue of the Review, Professor James Hart, of Johns Hopkins University, has advocated a limitation upon the doctrine announced in the Myers case so that Congress may prescribe the terms of office of the members of the various quasi-judicial administrative tribunals, and incidentally that of the Comptroller-General.The present writer's views on the status of the Comptroller-General are expressed elsewhere. He also dissents from Professor Hart's views on the expediency of granting to the various administrative tribunals any different terms of office from those which the Chief Justice indicated in the Myers case that they already have. This dissent is not a little supported by the practical suggestion of Dr. Hart. He indicates that “constitutional mores” are alone not enough to regulate the President's actions in exercising his power to remove, but that a definite term and formula should be prescribed and “constitutional mores” then depended upon to keep the President within the bounds of the formula. The limited experience of the present writer indicates that it is easier to satisfy a formula which is presumed to prescribe justice than to satisfy the dictates of justice on the facts of each case.Expediency, however, is a matter of opinion. One who attempts to criticize the logic and technique of another must accept the other's views of expediency.

As Others See Us.

The following correspondence which appears in the British Medieal Journal for July 1, gives Mr. Hart's views on our Association. <h3>MEDICAL NOTES FROM AMERICA.</h3> BY ERNEST HART. (From the British Medical Journal.) <h3>The American Medical Association.</h3> —<i>The Annual Meeting at Milwaukee</i>.—<i>The Constitution of the American Medical Association</i>.—<i>Suggestions for its Amendment</i>.—<i>The City of Milwaukee</i>.—<i>Address on Epidemic Cholera</i>.—<i>The British Medical Journal</i>.—<i>The American Medical Editors' Association</i>.—<i>The British and the American Medical Association</i>. The Milwaukee meeting of the American Medical Association was a very interesting, well-ordered, and lively meeting; the attendance was over a thousand, and from every part of the States. New York, which is heretical on the question of consultations with homœopaths, still holds aloof, but the Association is strong enough in the support of the most active-minded professional men in the States to dispense easily with