Hart - The Concept of Law Practice Guide Questions And Well Elaborated Answers.

The Seperability Thesis - correct answer That there is no necessary connection between law and morality, or law and what it ought to be. Primary and Secondary rules - correct answer Primitive societies only have primary rules - these are uncertain (where is the authority), unclear (how do we know when someone has breached them) and static (how do we amend/change law) in order to resolve these issues we implement secondary rules - rules of change, rules of adjudication and rule of recognition. Rule of Recognition - correct answer The rule of recognition determines the criteria by which the validity of the legal system is decided - it is duty imposing. The rule of adjudication and the rule of change are encompassed and validated by the rule of recognition - the RoR is the ultimate rule of a legal system. The RoR's validity cannot be questioned and its existence depends solely on the fact Internal/External perspective - correct answer Hart says Austin's command theory doesn't distinguish between obligations and being obliged - the difference is obvious when we consider law from the external or internal point of view. External - we recognise we have obligations to certain laws - fulfil due to threat of sanction Internal - we have obligations but also feel obliged by social pressure to fulfil the laws - fulfil even without threat of sanction - Better than Austin's account as it provides differentiation - Simmonds - Hart never tells us who the legal official is Law - correct answer Law is a social fact, with its validity stemming from the Rule of Recognition. It must be explained within its context with reference to the actual social practices of a community. The Minimum Content of Law - correct answer In order to survive as a community certain rules must exist. The nature of the human condition means these rules are necessary to protect us. ALTHOUGH THESE RULES ARE INHERENT THEY ARE NOT NECESSARILY DERIVED FROM MORALS OR MAKE SOCIETY MORE JUST. Law and Language - correct answer We cannot properly understand law without understanding the language, within its working context. There are clear meanings and penumbras therefore there may not be clear answers to every legal problem Criticism 1 - Law and morality - correct answer - Hart seems to suggest there is some allowance for morals because leaders of pre-legal systems WANT to not be self-serving, they want to implement secondary laws. - Dworkin points out that Hart says Judges should be 'creative' when filling in the penumbra - they turn to morals and principles Criticism 2 - Primary and Secondary Rules - correct answer - Hart is evaluating primitive societies and suggests development to make the society less defective - this is normative. - Finnis - secondary laws must have some moral concern because they're are trying to make society better