Hart-Fuller Debate Essay Example | Topics and Well Written Essays - 3000 words

Hart-Fuller Debate - Essay Example Introduction to Hart’s Concept of Law: Hart in his book addresses three critical issues. The questions which arise from these legal issues are (1) how does law differ from and how is it related to orders backed by threats? (2) How does legal obligation differ from, and how is it related to, moral obligation? (3) What are rules and to what extent is law an affair of rules?1 Laws, Commands and Orders: Hart argues in the first chapter of his book that laws are varieties of imperatives which differ in nature according to the tone of the individual. The acts of human beings to ask someone for help, to request someone for an act, or to order someone to do or to abstain from doing something, which might be backed by threat, or in other case where a man might be coerced to do something are all an indigenous part of the social nomenclature in which the society thrives and survives. Hart argues that law is a social construction backed by history. Law is an institution which always did n ot exist. It emerged for special reasons, and because of those reasons it has taken the form it takes. Law as the Union or Primary and Secondary Rules: Fundamental lawmaking power rests of the customary social rule, and it is through this rule that the sovereign authorises itself to make laws. Hart argued that law is nothing but a social construction of primary and secondary rules. In order to understand the effect of such rules, it is crucial to realise that Hart identified Rules of behaviour and rules of recognition as minimum standards for the existence of a legal system. We shall analyse the understanding of these rules later in the paper, but for now, it is important to draw a distinction to draw a parallel between these two rules and associate them with the primary and secondary rules. Primary rules may be defined as such ruled which guide behaviour of an individual by imposing duties on people, secondary rules provide for identification, change and enforcement of primary rule s. Both these rules are attached to the law of recognition and behaviour and the law works within this social pattern living in the society. Rules are present when there is a certain kind of social practice, regular behaviour together with the set of attitudes known as acceptance.2 Sovereign and Subject: Hart conceptualises that wherever there is a law, there is a sovereign, characterised negatively and positively by reference to the habit of obedience; a person or body of persons whose orders the great majority of the society habitually obey. This is the fundamental relationship between the subject and the sovereign.3 The most basic characteristic of democracy is the uninterrupted continuity of law making power by rules which bridge the transition from one lawgiver to another: these regulate the succession.4 Hart argues that in a sovereign State the laws are made through the acceptance of obedience of the majority of the people. The Constitution is the document which authorises the legislature to make laws for the people, but the legislature is not beyond the law since the power vested in him was granted by the Constitution itself. Therefore, it can be argued that the Constitution is the supreme law of the land and the law making bodies come under the purview of the Constitution. However, the lawmaker is not limited by the Constitution in order to enact laws, and he has the will to be obeyed by the