VI. The Foundations of a Legal System
VI. The Foundations of a Legal System
- H. L. A. HartH. L. A. Hartlate Professor of Jurisprudence, Principal of Brasenose College, and Fellow of University College, University of Oxford
Abstract
Celebrated for their conceptual clarity, titles in the Clarendon Law Series offer concise, accessible overviews of major fields of law and legal thought. According to the theory criticized in Chapter IV, the foundations of a legal system consist of a situation in which the majority of a social group habitually obey the orders backed by threats of the sovereign person or persons, who themselves habitually obey no one. While this theory fails to account for some of the salient features of a modern municipal legal system, it does contain, though in a blurred and misleading form, certain truths about certain important aspects of law. These truths can, however, only be clearly presented, and their importance rightly assessed, in terms of the more complex social situation where a secondary rule of recognition is accepted and used for the identification of primary rules of obligation. It is this situation which deserves to be called the foundations of a legal system. This chapter discusses various elements of this situation which have received only partial or misleading expression in the theory of sovereignty and elsewhere.
