HLA Hart Chapters 5-7 Summary

Hart: minimum conditions for a legal system 1. Austin  general obedience to primary rules! 2. The officials must obey secondary rules! 5: Law as the union of primary and secondary rules 1. Failures of Austin a. Essentially defines criminal statutes – applies just as well to those who enact it (upon the sovereign) b. Other varieties of law! – Conferring powers, creating relations c. Laws differ in their mode of origin – not always given by the sovereign (explicit prescription) prescription) d. Did not account for continuity of legislative authority i. Sovereignty Sovereignty is not always contained in a single being ii. Separation of powers e. Sought to remedy with ancillary devices i. Made things overly complicated f. Hinging effectiveness of rules only on chance of punishment i. Makes it overly-empirical 2. Problem with the Predictive Theory  laws should have reason! a. Does not account for instances of evasion of punishment 3. Why it failed  elements used cannot express the idea of a RULE a. 2 types of rules (imposing duties [primary] [primary] and conferring powers [secondary]) [secondary]) b. Working together, they give the key to the science of jurisprudence 4. Obliged to do v. Obligation to do a. Gunman situation  the gunman obliges you, not a rule! b. Obliged to do i. Renders an alternative less attractive/eligible ii. Hinges on belief of the person iii. Implies actual doing c. Having an obligation to do (what a rule actually does) i. Beliefs not necessary ii. Allows for choice of obedience or disobedience

5. Source of Obligations  necessary root of legal forms a. Establishing a socially accepted standard i. Regular conduct + attitude treating the conduct as standard b. Showing how certain actions fall within the standard 6. How rules are established/impose obligations  insistent general demand for conformity + means of imposing social pressure on deviants a. Demand for conformity b. Social Pressure i. Need not be systematized but must be serious! ii. Binds those who are obliged to act in a certain way, to act in said way iii. Not same as feeling pressured (internal aspect and external aspect) c. Internal Point of View  gives reason regarding the social pressure d. External Point of View  only exposes observer to results and not the reasons (law becomes a system of signs leading to reactions and not law as a system of rules)