To: Hassan A.

Niazi
Professor, Jurisprudence
From: 22090097

Date: December 31, 2020

Re: Final Exam

Part I(i): The Theory of H.L.A Hart

Hart belongs to the positivist school of legal philosophy. He believes that law is derived from

facts rather than morality: the ultimate criteria of validity of a legal order is derived from social

facts. In other words, the law is, irrespective of justice and morality.

Ronald Dworkin identifies a crack in Hart’s theory. He uses the example of hard cases. He calls

them hard because such cases cannot be decided by any law: they exist in the grey or create a

contradiction in the law. One such case is Riggs v Palmer. What he wanted to illuminate is the

fact that a legal order is incomplete without morality. Hart’s positivist law would not be enough

to decide a hard case. Like in the case of Riggs v Palmer as per legal principles, a man’s killer

was allowed to inherit from his victim. The best possible, or most desirable, result was possible

only through the use of moral principles: justice, equity, fairness, and due process. Dworkin

makes it clear that law is not irrespective of morality and justice: it is simply incomplete without

it.

One other critique centers around what Hart believes is the reason for obeying the law: it should

be obeyed because of the mere fact that it is law i.e. backed by the rule of recognition. Similarly,
he believes that people obey because they think disobedience would be detrimental to society.

This justification in itself is a moral justification. So, if Hart asserts that law is law because of a

general obedience/acceptance by society, his theory cannot stand on its own in a vacuum of

morality. For obedience by people is due to moral reasons. Lon Fuller criticizes Hart on the

reason for obeying the law. He believes that people do not boy law because disobedience would

be detrimental for society, but because the law is morally right. Hart’s assertion is contradicting:

simply obeying the law cannot benefit society if the law being obeyed is inherently unjust.

Hart also claims that for a legal system to exist: the officials need to have an internal point of

view along with a commitment to secondary rules, or more importantly to the rule of recognition.

The rule of recognition is what Hart uses to justify laws. He also believes, unlike Austin, that

laws should be rules and not habits: because the latter can easily be done away with. This

assertion outlines a flaw/contradiction in the theory of the rule of recognition. The social fact of

officials obeying the rule of recognition to give it legitimacy is in itself a habit. A group of

officials can change the entire legal system if they collectively start disobeying the rule of

recognition or adopt a different social practice altogether. Hence, the rule of recognition is not a

rule but, in essence, just another type of habitual obedience. Regardless of Hart despising habits

as the basis for a legal system: he has done the same under a new name. This phenomenon also

demerits Hart's other assertion that law must not be disobeyed because a person believes it to be

against morality. Officials might decide that a rule of recognition is unjust/immoral and adopt an

altogether different social practice: this would imply that people follow law due to its internal

morality and would also, surprisingly, be justified under Hart’s theory.

(554 words)
 Part II

Why do we have laws? It should not be a mere tool for power. It should be something that

functions to the benefit of society; it should be equal for all. Men do not live in societies to be

powerful, but they do so to collectively increase standards of livings. There is no standard of

living without dignity. The question then arises: when is dignity realized? One thing is for sure:

segregation strips the marginalized of dignity. The notion of civil disobedience is as old as

government and laws. One is for sure liable to sanctions, if guilty of disobeying the law.

However, disobedience, as history has proven, not always wrong but is merely illegal. Law has a

special status in society, natural legal philosophers believe that this status comes with higher

standards: a law for all purposes should be morally right.

The Cordova Daily reports