HART'S CHARACTERISATION OF LAW

Hart's Characterisation of Law



Hart's Characterisation of Law

Introduction

This paper intends to discuss the Hart's characterisation of law as a model of rules with respect to jurisprudence. H. L. A. Hart provided his theory of law for which internal view point was considered to be the most crucial element. Hart basically worked for notions within social groups and suggested all social groups must be concerned about the 'rules' and 'laws'; both individually and also as a member of the social group. Hart provided his concept which was basically dependent on the state law ultimately neglecting the basic principles of law. Law and justice in societies are assumed to provide opportunities to restrict the role of custom. The purpose of this paper is to assess the accuracy of Hart's characterisation of law as a model of rules. Moreover, the basis of Hart's characterisation will also be provided and explored within the paper.

H. L. A. Hart was one of the most recognized legal philosophers and published his most important work with the name of 'The Concept of Law' in 1961. This book laid the foundation of Hart's theory which today is known as the legal positivism. This concept of legal positivism was used to characterize the law as rules which were human made. Moreover, Hart depicted that there is no significant relationship between the rules and mortality. Hart basically worked within the framework of analytic philosophy. Hart gain popularity mainly because of his 'essay of descriptive sociology and analytical jurisprudence.' Hart's work meant to explain the basic questions which human beings come across during their course of lives like 'what is law?' and 'what is the relation between mortality and law?' Hart tried to clear all such confusions by keeping the law into a social context (Hart, 1961 Pp. 1-25).

Discussion

Hart's capability to bring law in to the social context made him able to analyze the legal terms more rigorously. This ability made the Hart's viewpoint to become one of the most important and significant in the field of jurisprudence. Hart suggested that the theory of command is biased towards the definition of law; making it completely one sided. According to Hart's description, law are the 'rules' provided by a power which is sovereign. Rules are made to threaten people for punishments. Hart argued that when the ultimate sovereign power does not submit itself to anyone than how must his trial of others is justified out of general orders passed as laws (Joseph, 1979 Pp. 27-38).

Challenging Austin's Theory

Hart challenged the Austin's theory of law by claiming it to be incomplete at its core. The Austin's theory of law has several elements which are considered to be important and accurate; however, Hart found it somewhat incomplete fundamentally. Hart did agree to some of the observations made by Austin regarding the law like Austin's argument that law is capable to make 'mode of conducts' compulsory and obligatory to perform and obey. Moreover, Hart also believed that Austin is correct in stating that ...