Hart the Concept of Law, Essay Example

In The Concept of Law, H.L.A. Hart rejects law based solely on power and law which is accepted as morally binding, and he attempts to base law on accepted authority. There are many theorist who feel Hart fails In a previous essay, Many argue that in The Concept of Law, Hart fails to provide an acceptable alternative to this dichotomy and that his theory may be reduced to one of law based merely on power.

On the topic of law being a social construction Green states that, “some think law is a social construction because they think everything is…When I say law is a social construction, I mean that it is one in the way that some things are not. Law is made up of institutional facts like orders and rules, and those are made by people thinking and acting. But law exists in a physical world that is constructed by social factors of a society as a whole, and it is also created by and for people who are not socially constructed. To explain where Hart’s theory went wrong in explaining  the authoritative nature of legal systems, Green cites Dworkin who breaks down how Hart’s theory of law pairs up against Austin, and he says, “The true nature of law lie in the acceptance by the community. He further notes that the community is following a fundamental master “rule of recognition.” In distinguishing the difference between Austin and Hart, he notes that “for Austin the proposition that the speed limit in California is 55 is true just because the legislators who enacted that rule happen to be in control there; for Hart it is true because the people of California have accepted, and continue to accepts, the scheme of authority in the state and national constitutions” (Hart: xvii). In a way both Austin and Hart are correct which reveals the flaw in Hart’s argument. When Austin states that the speed limit is 55 due to the fact that the legislators who made it 55 happen to be in control there, it acknowledges that those legislators can enforce the law in that area and he rejects the notion that Hart proposes it’s 55 because the California citizens are accepting some scheme of authority. An example, of how Hart’s perspective is flaw4ed can be seen with California marijuana law and how the people of California voted the to legalize the medical distribution of Marijuana, but the Federal government still does not acknowledge the people’s right to choose the laws that regulate their lives. Many marijuana dispensaries which are legal by state standards have been shut down by federal officers, or raided only to be reopened over night, this conflict that is occurring is a prime example of how law is not distinctly followed based on recognition of authority alone, and power plays a significant role in the process. It also demonstrates how coercion actually is not a deterrent when it is implemented unjustly against the will of the people and in this regard Hart seems to be correct about the influence of community over force of law. Regardless, the will of the people still has had no impact on changing the laws complicating their lives in the pursuit of Marijuana use in California.

Hart also identifies sanctions or punishments as a natural deterrent to breaking the law. He argues it’s the only way to prevent those who would voluntarily follow the law form being sacrificed or taken advantage of by those who would not. He states that, ‘Sanctions’ are therefore required not as the normal motive for obedience, but as a guarantee that those who would voluntarily obey shall not be sacrificed to those who would not. To obey, without this, would be to risk going to the wall. Given this standing danger, what reason demands is voluntary cooperation m a coercion system” (Hart: 193). Another problem which Hart does not seem to acknowledge is that in addition to those members who might voluntarily cooperate there are also individuals who are not influenced by coercion. They feel no fear or obligation, or respect for the authority being imposed on them to abide by the law. This is largely due to the fact that the consequences are not the same for them as they are for others, maybe due to social connections, or financial status.

In sum, Hart’s theory of law presents the following problem: If he assesses a social rule in terms of a practice of acceptance, stating that laws are only as relevant as the communities willingness to abide by them,  then his theory of law can now be limited to just a law based on power alone and nothing else. This is due to the fact that practice of a social practice alone does not necessarily imply, or in any way suggest, obligation or authority. A social theory that can be adopted to account for alternatively, if Hart supports his theory of a normative rule with positions reinforcing the claim for, and validating, the grounds for obligation and authority, then his idea of a social rule constituted by the practice of acceptance becomes more than enough evidence that obligation and authority has been established. As Payne notes, “if the minimum content of natural law were employed as a foundation for a commitment to accept in advance the primary rules, there would be no need for an actual practice of acceptance. The problem that this dilemma creates for Hart’s theory of law is that the separation of the idea of a normative rule from the existence of the practice of acceptance threatens Hart’s legal positivist claim that there is a factual criterion distinguishing law from morality (Payne: 527). He goes on to point out that the issue that arises is that Hart’s rule of recognition is a matter of fact but the belief that this recognition in some way requires obligation is not a fact. My criticisms imply, however, that acceptance of the rule of recognition does not necessarily establish obligation; consequently, it is false that legal  The social concept or theory that must be applied to Hart’s argument to better make it valid is some form of explanation describing why there is obligation or necessity to follow the law, specifically to respect the authority. He is essentially arguing that through recognizing authority, one must automatically conform to it or abide by it, and society shows us that this is not the case without even looking further into Hart’s argument.

Work Cited

Groudine, Candace J. “Authority: HLA Hart and the Problem with Legal Positivism.” The Journal of Libertarian Studies 4.3 (1980): 273-288.

Hart, Herbert Lionel Adolphus, and Herbert Lionel Adolphus Hart. The concept of law. Oxford University Press, 2012.