Celebrated for their conceptual clarity, titles in the Clarendon Law Series offer concise, accessible overviews of major fields of law and legal thought. This Postscript attempts to reply to some of the criticisms urged by R. M. Dworkin in many of the seminal articles collected in his Taking Rights Seriously (1977) and A Matter of Principle (1985) and in his book Law's Empire (1986). The focus is on Dworkin's criticisms because he has not only argued that nearly all the distinctive theses of this book are radically mistaken, but he has called in question the whole conception of legal theory and of what it should do which is implicit in the book. The first part of the Postscript is concerned with Dworkin's arguments. The second part considers the claims of a number of other critics that, in the author's exposition of some of his theses, there are not only obscurities and inaccuracies but at certain points actual incoherence and contradiction.
Chapter
Postscript
H. L. A. Hart
Chapter
1. Introduction to law
Scott Slorach, Judith Embley, Peter Goodchild, and Catherine Shephard
This chapter considers law as a concept and in its context. It examines key legal concepts such as law and morality, jurisprudence, the legitimacy of laws, the rule of law, and the separation of powers, looking at these in both theory and practice. It includes consideration of the virtue, duty, and consequentialist ethical theories, and legal theories including natural law, legal positivism, realism, and critical legal studies.
Chapter
1. Introduction to law
Scott Slorach, Judith Embley, Peter Goodchild, and Catherine Shephard
This chapter considers law as a concept and in its context. It examines key legal concepts such as law and morality, jurisprudence, the legitimacy of laws, the rule of law, and the separation of powers, looking at these in both theory and practice. It includes consideration of the virtue, duty, and consequentialist ethical theories, and legal theories including natural law, legal positivism, realism, and critical legal studies. Consideration is given to UK and international factors to give the broadest possible context, including identifying interdisciplinary perspectives. Real life examples are provided and discussed to aid deeper understanding of the concepts referred to.
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.
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X. International Law
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.
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VIII. Justice and Morality
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 claim that, between law and morality there is a connection which is in some sense ‘necessary’, and that it is this which deserves to be taken as central, in any attempt to analyse or elucidate the notion of law. The chapter attempts to separate and identify some long-entangled issues. The first of these issues concerns the distinction within the general sphere of morality of the specific idea of justice and the special features which account for its peculiarly intimate connection with law. The second concerns the characteristics which distinguish moral rules and principles not only from legal rules but from all other forms of social rule or standards of conduct.
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26. Subject Matter: The Requirement that there be a Design
L. Bently, B. Sherman, D. Gangjee, and P. Johnson
This chapter considers the requirements for a design to be protected, with particular reference to the requirement that there be a design. It begins by outlining the requirements for validity before turning to the definition of ‘design’ with respect to registered designs in the UK as well as unregistered designs, citing three key elements of this definition: appearance, features, and product. It also examines three types of design that are excluded from the very broad definition of design: designs dictated solely by technical function; designs for products that must be produced in a specific way to enable them to connect to another product; and designs that are contrary to morality or public policy.
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37. Absolute Grounds for Refusal
L. Bently, B. Sherman, D. Gangjee, and P. Johnson
This chapter examines the ‘absolute’ grounds for refusing to register a trade mark as set out in section 3 of the Trade Marks Act 1994. It first looks at the reasons for denying an application for trade mark registration before analysing the absolute grounds for refusal, which can be grouped into three general categories: whether the sign falls within the statutory definition of a trade mark found in sections 1(1) and 3(1)(a) and (2) of the Trade Marks Act 1994; whether trade marks are non-distinctive, descriptive, and generic; and whether trade marks are contrary to public policy or morality, likely to deceive the public, or prohibited by law, or if the application was made in bad faith. Provisions for specially protected emblems are also considered.
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1. An introduction to the criminal law
David Ormerod and Karl Laird
It is neither easy to define crime nor identify the aims of criminal law but some characteristics may be universal to every crime, including that it involves public wrongs and moral wrongs. ‘Public wrongs’ reflect the important role of the public in punishing crimes. A crime incorporating a moral wrong implies that a ‘wrong’ is done or harm to others is involved but experience suggests that morality and criminal law are not coextensive. The chapter introduces students to thinking about criminalization and the need to guard against overcriminalization. It also examines the principal sources of criminal law: common law, statute, EU law, international law and the European Convention on Human Rights (ECHR). Problematically, important and serious offences and most defences in English law derive from common law rather than statute, and some offences—from public nuisance to gross negligence manslaughter—have been challenged recently on grounds of certainty and retrospectivity.
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1. Introduction to equity and trusts
Without assuming prior legal knowledge, books in the Directions series introduce and guide readers through key points of law and legal debate. Questions, diagrams and exercises help readers to engage fully with each subject and check their understanding as they progress. The trust is an important invention of equity, a branch of English law compatible with common law. The history of equity oscillates between compatibility and competition with common law. This chapter serves as an introduction to equity and trusts. It outlines the major stages in the historical development of equity and trusts, examines the theoretical distinction between equity and the common law, explains how to correctly use the maxims and doctrines of equity, and discusses the distinction between equity as an inventive, flexible, remedial branch of law, and equitable institutions that are now settled and established, including the trust and the mortgage. The chapter also considers equity in relation to morality, co-operative remedies in equity and common law, equity and crime, and equity and restitution, before concluding with an assessment of the place of equity in the modern world and its possible future development.
