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DUTY IMPOSING AUSTINIAN rules regulating behavior, while secondary rules regulate other rules, i.e. the primary rules-Stepping back in time, beginning with primary rules, they involve a “minimum content” of behavior necessary for the survival of a primitive society e.g., no killing no stealing. Each member lives to their own individual creed or morals. Violators may be dealt with, vigilante style. However, for its continued survival the REQUIREMENTS ARE STRINGENT. It must be a small society sharing common interests, the rules must be accepted by the majority and, they must live in a stable environment. If any of these variables change, certain defects of being static, inefficient and uncertain may be exposed. According to Hart, the most basic remedy for such a society is to write down these primary rules, which then becomes a rudimentary rule of recognition.
- These rules are parasitic of the primary rules and are designed to remedy the defects of primary rules in three ways:
- a- To remedy the defect of lack of progress, there are rules of change that introduce powers of legislation and repeal or create rules
- b- To remedy the defect of inefficiency there are rules of adjudication that decide whether a primary rule has been broken by introducing the courts and law enforcement
- c- To remedy the defect of uncertainty there is the rule of recognition that CONFERS POWER on people to id the law, making it publicly ascertainable, the criteria of legal validity.Examples of these power conferring rules can be found in making wills and valid contracts, marriage, etc. Unlike the primary rules, there is no duty imposed, or threat of evil to be suffered if one doesn't engage in the above activities.
Hart: CONDITIONS NECESSARY FOR A LEGAL SYSTEM
- 2 minimum conditions necessary & sufficient for the existence of a legal system.
- 1. Those rules of behavior which are valid according to the system’s ULTIMATE CRITERIA of VALIDITY must be generally obeyed, and
- 2. Its officials must effectively accept its rules or recognition specifying the criteria of legal validity and its rules of change and adjudication as common public standards of official behavior.
- Building a legal system requires a critical knowledge of why citizens obey the law from their point of view, and how officials and judges not only obey the law, but also how they monitor the primary laws through secondary rules of recognition.
Criticism of ROR w/ respect to guidance
- Simmonds, existing ROR may give UNCERTAIN guidance or even no guidance at all-when the UK first joined the EU & parl sovereignty was threatened, where was the ROR for that time? Officials could give no answer.
- Hart dismisses the situation as political, not legal until the judge’s rule on the situation.
Critical Hypo of ROR-Dworkin
Non-rule of recognition-every primitive society has a secondary rule of recognition, that the rule that whatever is accepted as binding is binding, the master rule becomes a non-rule of recognition-eg, if the master rule says that whatever other rules the society accepts as legally binding are legally binding, then it provides no test at all, beyond the test we should use if there were no master rule.
Criticism-general concept of a rule by Dworkin
it lacks the dimension of weight/importance of a principle. A rule imposes an all or nothing situation because it is either valid or invalid. If it is not valid, it does not advance the law at all. Hard cases may cause a conflict between rule and principle. Rules can function like principles from the use of the widely popular UK legal lingo of (un)reasonable, justifiable, significant etc.In the postscript of Concept of Law, Hart replied that there is no sharp contrast between a rule and a principle and, that the all or nothing rules principles, like non-conclusive principles, are cured if it is admitted that the distinction is a matter of degree.
- Penner-Legal Positivists are not a BREED that sees things more clearly but rather, people who wish to focus on clear things. They seek to ID ESSENTIAL ELEMENTS of legal systems “posited” by men.
- Jurisprudence and Legal Theory: Commentary and Materials
Austin, legal positivism is law existing by position through an aggregate of the rules established by political superiors, i.e. men. Also, he believed law should be an object of ‘scientific’ study, not determined by prescription or by moral evaluation.
UTILITARIANISM v LEGAL POSITIVISM disagreement
Perreau-Saussine-argues that this interpretative disagreement is rooted in a fundamental tension within Bentham's rationalism, a tension between his utilitarian account of PRACTICAL REASONING & his insistence on the NEUTRALITY of analysis: the tension becomes particularly apparent in Bentham's approach to legal exposition.(Cambridge Law Journal 2004-Bentham and the boot-strappers of jurisprudence: the moral commitments of a rationalist legal positivist)
Hart reply to Dworkin rules v principles
In the postscript of Concept of Law, Hart replied that there is no sharp contrast between a rule and a principle and, that the all or nothing rules principles, like non-conclusive principles, are cured if it is admitted that the distinction is a matter of degree.