Law and morality
ought to be complied with, serving as the basis of evaluation and criticism of conduct. By introducing the ‘internal’ aspect, rules are treated not just as an observable regularity (as re ductionism argues), but as a prescription that guides our conduct. By extension, Hart argued that the basis of law-making authority also lies in the acceptance of a basic rule or standard that authorizes the enactment of new legal rules, and not in habits of obedience (as Austin argued). Moreover, Hart disputed Bentham and Austin’s claim that all laws are duty -imposing, arguing that this reduction ignores the differing social functions of different laws. For instance, Bentham believed that every law is a re striction on one’s liberty in one way or another; hence, every law is an evil which needs to be justified by reference to its utilitarian value (i.e. whether or not it maximizes the utility of a consequence). But not all laws restrict conduct by imposing duties. Some intend to provide facilities or confer power (like laws the confer the power tomake a will) without restricting our conduct in any way, and are thus fundamentally different to those that reductionismoffer. Hart offers a distinction between such rules : on the one hand, there are ‘primary rules’ about conduct (e.g. do not kill); on the other hand, ‘secondary rules’ confer powers (e.g. the right to make a will), or are rules about other rules – how to alter, interpret and enact other rules and recognize them as valid. Of the ‘secondary rules’ in a legal system, Hart argued that the most important one was the rule of recognition : a body of fixed rules which enable legislators to determine which laws are valid and can guide our conduct. For Hart, every legal system contains a basic rule of recognition by reference to which we can identify fundamental sources of law (such as statutes and precedents in the UK). He believes we can find the content of such a rule through empirical observation of the officials as they decide legal disputes: their regular patterns of conduct (the external aspect) in deciding disputes by reference to rules emanating from certain sources (e.g. statutes), in addition to their acceptance of this ‘method’ of deciding cases as a standard that should be complied with (the internal aspect). Through reference to this rule of recognition, we can thus factually determine the content of existing, valid laws without reference to morality (i.e. regardless of whether a law is perceived as morally ‘just’ or ‘right’). But despite Hart’s attempts at intellectual clarification, there is still much doubt over whether or not the authority of a law- making body might be a matter of the morally binding force of that body’s decrees, which legal positivism a ims to deny. Though Hart might dismiss Austin and Bentham’s reductionist attempts to explain law-making authority as facts of obedience, because they neglect the internal/normative aspect of law, the question still remains for Hart over how a legal positivist can conclude that legal propositions are a type of moral or normative judgement – without reducing them to predictive or fact-stating propositions. Legal positivist Hans Kelsen attempted to solve this by treating legal order as a body of ‘valid’ norms, and that we must adopt the ‘basic norm’ ( grundnorm ) that authorities in effective control must be obeyed. This answers the question of why rules like the rule of recognition are themselves valid; and because they are valid, they ought to be obeyed. Hart may criticize Kelsen’s theory: that it returns to a Kantian line of natural law theory, of a basic natural law establishing the authority of the legislator (which goes against legal positivism) – or that the rule of recognition need no ‘reason’ for validity as it is a criterion for validity. But while these are strong criticisms of Kelsen’s logically flawed argument, it misses the fundamental point of Kelsen’s theory. Hart continually advocates for the importance of the ‘internal point of view’ – accepting a law as a standard that we ought to comply with. Hart’s view also argues that a legal system’s existence requires at least the officials to regard the rule of recognition from such an internal point of view. Does it not, therefore, follow that propositions about legal rights, duties, and validity are about what ought to be
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