This chapter examines the philosophical issues raised by the law’s use of norms, i.e. things that require a standard of behaviour, such as orders, rules, and duties. The discussions cover norms as exclusionary reasons; the variety of norms; and the Hohfeldian characterisation of legal norms.
Chapter
J. E. Penner and E. Melissaris
This chapter explores how the philosophy of law meshes with political philosophy more generally, and considers three questions. First, is there a duty on those who have the power to govern, to do so, and if so, what sort of duty is it? Second, for those who take up the position of governors, what gives them the right to rule over others? Finally, the chapter asks whether the subjects of the law have a general moral obligation to obey the law.
Chapter
H. L. A. Hart
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.
Chapter
J. E. Penner and E. Melissaris
This chapter explores the legal and philosophy of Hobbes. It covers foundational assumptions; ‘man’s natural condition’ or the state of nature; exit from the state of nature and entry into the civil condition; the social contract; the sovereign’s powers and the form and content of government and law; and whether Hobbes’s political philosophy is liberal and suitable for our times.
Chapter
H. L. A. Hart
Celebrated for their conceptual clarity, titles in the Clarendon Law Series offer concise, accessible overviews of major fields of law and legal thought. This chapter examines objections to the simple model of law as general orders backed by threats. These objections fall into three main groups. Some of them concern the content of laws, others their mode of origin, and others again their range of application. All legal systems, at any rate, seem to contain laws which in respect of one or more of these three matters diverge from the model of general orders.
Chapter
H. L. A. Hart
Celebrated for their conceptual clarity, titles in the Clarendon Law Series offer concise, accessible overviews of major fields of law and legal thought. This chapter begins by identifying two types of rules. The first, which may be considered the basic or primary type, requires human beings to do or abstain from certain actions, whether they wish to or not. The second type of rules are in a sense parasitic upon or secondary to the first; for they provide that human beings may by doing or saying certain things introduce new rules of the primary type, extinguish or modify old ones, or in various ways determine their incidence or control their operations. The chapter then argues that in the combination of these two types of rule there lies what Austin wrongly claimed to have found in the notion of coercive orders, namely, ‘the key to the science of jurisprudence’. It attempts to show that most of the features of law which have proved most perplexing and have both provoked and eluded the search for definition can best be rendered clear, if these two types of rule and the interplay between them are understood. This union of elements is accorded a central place because of their explanatory power in elucidating the concepts that constitute the framework of legal thought.
Chapter
J. E. Penner and E. Melissaris
This chapter provides an overview of the four parts of the book. Part I covers the theories of the nature of law. Part II considers particular philosophical issues in law. Part III explores the intellectual foundations of the liberal social contract tradition in political and legal philosophy. Part IV turns to radically different ways of viewing society, politics, the state, and law.
Chapter
H. L. A. Hart
Celebrated for their conceptual clarity, titles in the Clarendon Law Series offer concise, accessible overviews of major fields of law and legal thought. This chapter examines three recurrent issues about the nature of law. The issues are: How does law differ from and how is it related to orders backed by threats? How does legal obligation differ from, and how is it related to, moral obligation? What are rules and to what extent is law an affair of rules? To dispel doubt and any perplexity on these three issues has been the chief aim of most speculation about the ‘nature’ of law. The chapter discusses why this speculation has usually been conceived as a search for the definition of law, and why the familiar forms of definition have done so little to resolve the persistent difficulties and doubts.
Chapter
H. L. A. Hart
Celebrated for their conceptual clarity, titles in the Clarendon Law Series offer concise, accessible overviews of major fields of law and legal thought. This chapter considers two principal sources of doubt concerning the legal character of international law and, with them, the steps which theorists have taken to meet these doubts. Both forms of doubt arise from an adverse comparison of international law with municipal law, which is taken as the clear, standard example of what law is. The first has its roots deep in the conception of law as fundamentally a matter of orders backed by threats and contrasts the character of the rules of international law with those of municipal law. The second form of doubt springs from the obscure belief that states are fundamentally incapable of being the subjects of legal obligation, and contrasts the character of the subjects of international law with those of municipal law.
Chapter
J. E. Penner and E. Melissaris
This chapter explores the main currents in legal philosophy following Hart, focusing on the work of Dworkin and Raz. It begins with overviews of the philosophies of law of Dworkin and Raz. The chapter then discusses Dworkin and Raz on rules and principles; Dworkin’s theory of law; whether lawyers are moral philosophers; Raz and the authority of law; and the impact of the work of Dworkin and Raz.
Book
Celebrated for their conceptual clarity, titles in the Clarendon Law Series offer concise, accessible overviews of major fields of law and legal thought. The Concept of Law is an important work of legal philosophy. It was first published fifty years ago. This book includes a new introduction that sets the book in the context of subsequent developments in social and political philosophy, clarifying misunderstandings of Hart's project and highlighting central tensions and problems in the work. Topics covered include: sovereign and subject, the law as the unions of primary and secondary rules, formalism, rule-scepticism, justice, morality, and international law.
Chapter
H. L. A. Hart
Celebrated for their conceptual clarity, titles in the Clarendon Law Series offer concise, accessible overviews of major fields of law and legal thought. This chapter examines the relations between law and morals. It analyses what lies between Natural Law and Legal Positivism. It considers, in the form of five truisms, the salient characteristics of human nature upon which the minimum content of Natural Law rests. These truisms are: human vulnerability, approximate equality, limited altruism, limited resources, and limited understanding and strength of will. The chapter concludes by examining six forms of the claim that there is some further way in which law must conform to morals beyond that which has been exhibited as the minimum content of Natural Law.
Chapter
J. E. Penner and E. Melissaris
This chapter explores the legal and philosophy of Kant. It discusses the foundations of Kant’s political and legal philosophy from innate right to private right and public right; the original contract, the State, and law; and Kant on revolution.
Chapter
This chapter discusses the relationship between the ancient classical theory of natural law and its application to contemporary moral questions. It considers the role of natural law in political philosophy, the decline of the theory of natural law, and its revival in the twentieth century. The principal focus is on John Finnis’s natural law theory based largely on the works of St Thomas Aquinas. The chapter posits a distinction between ‘hard’ and ‘soft’ natural law, examines the notion of moral realism, and examines the tension between law and morality; and the subject of the moral dilemmas facing judges in unjust societies.
