Hart and the Problem With Legal Positivism, Essay Example

In his quest to defend the commonly held perception on legal validity, Herbert Hart published a seminal legal document entitled The Concept of Law aimed at poking weak areas of Austin’s theory. According to Austin, legal validity is intertwined in what he referred to as social facts. His theory deducts that, one of the major legal validity problems emanates from the supreme body that makes laws. The subjects undoubtedly obey the sovereign, but in return, it disobeys the determinate human superiority. Controversially, Austin asserts that, a rule is deemed valid in a given society, only if the sovereign commands it, with an obvious sanction threat in place. The aforementioned theory of command is problematic, considering that most democratic societies lack identifiable sovereignty. For instance, in the United States, the ultimate power in the political arena belongs to the people, who make the decision on who to elect as a representative of their interests. Even so, it is confusing that even after being elected as representative of people; the elected lawmakers become sovereign power repositories. Hart also gives linguistic analysis of command as used by Austin in order to give explanations on the weakness of the theory. According to Hart, to command refers to exercise authority over men, but not power to inflict any kind of harm. From Austin’s point of view, command is always ultimate and may lead to undesirable and sometimes inhuman consequences whenever violated. In essence, it is possible to have an individual undergoing serious brutalities ‘legally’ based on the concept of law as defined by Austin (Candace 45). This is against the human right, which guarantees every individual on earth right to life. Notably, brutalities mostly lead to death .

Dworkin’s analysis of law is based on the accentuation of normatively judicial decisions being reached through the interpretation of the community political structure by trying to get the best or most appropriate justification using the principles and concepts of political morality for the entire structure from the most reflective constitutional rules and the arrangement of relevant details. From his point of view, the law has its integrity based on adjudication as well as the application of law in conjunction with constructive and interpretative principles (Scott 23). He states that proposition of law is always true only if it follows from the basic or common principles of fairness, justice and the necessary procedural due process, which ensures the provision of the most appropriate and constructive interpretation of the law stipulated in the constitution. He gives the basis of interpretations based on the legal and moral justification of the law. His theory typically makes judges a section of a society that acts as a caretaker via thoughtful analyses and interpretation of the law. With the understanding that the judges remain part of the society and citizens of the same society, it is deductively rational that they normally end up making some decisions that sometimes seem to obey the two stated basis of judgments. In this case, law always poses a serious problem especially to the subjects such as the complainants or the respondents in a court.

In order to give appropriate explanation of a legal proposition, it is necessary to provide some of the basic principles of law and relate them to the provisions in legal books such as the constitution of a society. Based on the Hart theory, it is usually proves challenging and confusing. Command in the first place may be ambiguously defined and this is always troublesome especially to the users or recipients of the command as per the law. In this case, comprehension of what makes a legal proposition true or false always proves challenging in many society. This is a similar case with Dworkin’s assertion, which aims at the provision of the right judgment by one person who is also a subject to the law (Scott 48).

In order to provide the solutions to the problems, we analyze Hart’s assertion on the role of determining morality in a society. He talks of a shared morality, which aids in building a society by binding and supplementing the law acts that do not cause harm to other people. In this case, Hart proposes a possible way of approaching the problems affecting the legal system in most societies. Changes should be made based on the morality of a society. Morality implies the principles of humanity that ensures that all decisions made by individuals are in accordance to the comprehension of human behaviors and roles. In other words, judgments will be made based on the available information and the interpretation of the law with morality as the major determining factor of the judgment. With this, it is obvious that both parties will immensely benefit. The questions necessary for the adequate theory of legal validity to be adequate is: What is the main factor considered when applying the law? To what extent should be morality concept used in law?

Work Cited

Scott, Shapiro. The Hart-Dworkin Debate: A short guide to the perplexed. Michigan: The University of Michigan Publishers, 2007. Print.

Candace, Graudine.  Authority: H.L.A. Hart and the problem with Legal Positivism. Columbia: Columbia University Press, 2006. Print.