Holla: = yg nomen i monty similar view Austin’ Denouncing. Au theory was later improved upon by consist a nti’ view that sovercign is the sole I and remarked ihe ee fa seid upon by law outs. Gr acting i what has been laid down as aru neudlences Bch fuicil organs ofthe State, Holand, i is lene of Jurist rule of human aetlon enforcad terparable element of law but defined it 3 gene fica Austinian three, PY, Superior authority on f subjects’. TRESS MS upsequent HLA. \eory later gave rise to the emergence of Vinenna sLe epee Contribution to Analytical Positivism Chancery Bar and, Tate Lionel Adolphus Hart was born in 1907 He practised at 1952-68. Then he Joined as Pri ¥. worked as a Professor of Jurisprudence in Oxford during of analytical positivism incipal of Brasnose College, Oxford. He rejected Austin s aveen law and rocieyiom and expounded his teal theory based on the relations er i, Thus Hares aca, favoured analytical approseh to wi for a better understaneiny ved that Tae, ction of law is altogether diferent from his predecessors Because MT cations, His cla y and morality are related social phenomena having sociologic® 1 ic work The Concept of Law was written in criticism ‘of Austin's theory: Hart's Conception of Law provides kevin iD Hart, law is a system of two types of rul “secondary: fl the science of jurisprudence. These rules, he ¢ HLL.A. Hart emphasis rales; Relecting Austin's view that tow is a command, Her and snehtased that primary rues are dty-imposing while seeonder rules confer Po inayat ee two is the essence oF law. The primary rules which impose duty WPM sentiments ere pang because of the popular acceptance such as rules of kinship, family Ci) uncon, Tess being unofficial rls, hey sue Fram three major defects namely, deciding about eee character; and (3) inefficiency. Besides, there is no agency for The . their policies sean, rules which are power conferring, enable the legislators modify OF the primers carding tothe needs of the society n Fact hey sek fo remedy the defects its bin? Besa 2d itis out of the union of these two types of rules that law takes Colvin, observed one, Out the distinction between primary ‘and secondary rules, Eric at under the primary rules, individuals are required to-do or abstain sy & Morality (1963); fe also wrote causation es the union of which caled as ‘primary’ and See er the pr 16. ‘The main works of Moratay of ne a8 HLA Hart include The Concept of Law (1961); Law, Libe . Hart HALA. The Concept of Law (1961) p.61. Scanned with CamSc~— ‘SCHOOLS OF JURISPRUDENCE (ANALYTICAL SCHOOL) 2 from doing certain acts, whether they wish to do so or not. The secondary rules are in a Conse dependent on primary rues themselves, for they provide that human beings may Dy doing oF saying certain things, introduce new rules of primary type, extinguish of Getegpine their incidence or control their operations. Thus the primary rules, which impose duties are concerned with actions involving physical movement or changes hocens the secondary rules which confer public or private powers provide for operations which lead to creation or variation of duties or obligation,!® Rule of Recognition Pyatessor Hart's positivism explains the existence of law with reference to the rule of recognition binding force of which depends upon its acceptance. ‘The validity of law is to be tested on the basis of rule of recognition which is similar to Austin’s conception of sovereign, Hart, however, insists that the rule of recognition is not an extra-jural hypothesis like Kelson’s “basic Grundnorm’. According to him, rule of recognition is the sole rule in a legal system whose binding force depends upon its acceptance. For example, whatever is enacted by British Queen in Parliament is rule of recognition. Again, the Various constitutional laws which constitute rule of recognition are rules of positive law Which ae binding on citizens, officials, legislatures, Courts and various other governmental agencies. Thus, it could be seen that H. L. A. Hart's conception of positivism centered round the following considerations :— (1) He accepted law as a command as advocated by Bentham and his disciple Austin @) He believed that analysis of legal conceptions are worth pursuing as distinguished from mere sociological and historical inquiries. @ the judicial decisions were to be deduced from pre-determined rules without recourse to social aims, objectives, policy or morality (4) Moral judgments cannot be defended by rational argument, evidence or proof; and (5). The law as it is actually laid town (positum) has to be kept separate from law as it ought to be. Hart's Views on Law and Morality HLL.A. Hart does not denounce’ the role of natural law in his positivism. Unlike ‘Austin and Kelson, Hart contends that it is necessary for law and morality to have ceviain clement of natural law as a logical necessity. Thus morality is implict in Hart's positive Iaw which he describes as union of primacy and secondary rules. As a member of society, individuals feel morally bound to abide by these rules both as a matter of duty and obligation. Hart, therefore, asserts that law and morality are complementary and supplementary to each other. In his view, there are four attributes of morality, namely, (ip importance, (2) immunity from deliberate change, (3) voluntary character of moral bGffeneee: and (4) forms of moral pressure which separate it from etiquette, custom and other social rules, The rules of sexual behaviour provide the best example of morality. Criticising Devlin’s view that law demands certain standards of behaviour or moral principles which society should observe and the breach of which should be made punishable 23 an offence, Hart observed that a balance has to be drawn between {he Freedom of individuals to have intellectual and artistic freedom and. the duty of the law t protect society from depravity and corruption. He accepted that morality is a necessa°y Condition of society and the law has a function to ensure that’ morality of society does not disintegrate. But he further added that “law's function is only the Jast line of defences 18. Colvin Ere : Sociology of Secondary Rules, Law Journal (1978) P-3- Ovdeu Will Ans:26 RY JURISPRUDENCE AND LEGAL THEO! | thin the society other atte , come from Wi itself cg. net’ © Preserve the accepted morality should fe, f 8» through education, the mass media, ef. riticised by Some juri mently Crier es view of law as a 4 uni i - 1 On of primary and secondary rules and exclusion o| ‘ta legal systern cannot be on between ‘rules’ and ‘principles’ and pointed out that a0 rig principles gouceived merely as an aggregate of rules but it has to be based once Tpereas rules are iciples are broad formulations of gener: ‘more specific than nga distinct and definite effect, ey te nara served Dworkin further observed, ne i 'a principle is standard ion of morality.” is a requirement of justice or faimess or some other Cimete ticheg For example, no one can take advantage of his own wrong!? is 3 Principle of law, sep; Rules, on the other hand, are applicable in an ‘all: distinguishing feature is ‘reason’. Dworkin points out that judges bi Creating new legal rules when the existing law is silent on a particul care necessary guidance in a particular case-situation. at ther ‘on Fuller has also criticised Hart's theory which holds that there than the rules of recognition. He believes that legal system being aM i tsument fo feRiate human conduct, must concer itself with both law as “it is” and “as M ought fo be". This, in other words means that law cannot be completely divorced from ie concent of morality. Fuller maintained that law is a product of sustained purpose and efforts whiel Contains its own implicit morality. He says laws may be of little service and aa both injustice and misery if they do not conform to the “internal morality”. According to Fuller, eight conditions which constitute the internal morality of law are— @ there must be rules, (ii) the rules must be published, (it) retractive legislation must not be used abusively, (iv) the rules must be understandable, () the rules must not be contradictory, (vi) the rules must not require the conduct beyond the power of the affected parties, (vii) the rules must not be changed so frequently that the subjects cannot guide their actions by them, (vili) there should be congruence between the rules as announced and their actual enforcement. As a modern naturalist, Lon Fuller believed that “law represents order simplicitier. Thus “good order is law that corresponds to demand of justice or morality or men’s notion of what ought to be".20 Therefore, both ‘is' and ‘ought’ seem to be inseparable or indissolubly fused.?! Distinction between Positive law & Morality It must be stated that positive law differs from natural law or morality. The former consists of rules for governance of the outward acts of the mankind while the latter consists of principles of natural rights or wrongs or principles of justice based on reason in the widest sense. The natural law or morality is unwritten law which are being Riggs v. Palmer, wherein defendant's rights to inherit under the will of a man whom he murdered ‘was challenged. 20. Fuller: “Positivism & Fidelity of Law A Reply to Professor Hart 71, Har L.R. 630 (1957-58). 21. Faller: Law tn Quest of liself (1940) p. 12. 1g fashion’ and their ave the discretion of Jar point or does not |-or-notl no law other 1D. ocdiilicu Wilil vainiS¢ a‘SCHOOLS OF JURISPRUDENCE (ANALYTICAL SCHOOL) 27 meticulously followed by mankind as eternal laws being of divine origin and immutable. Positive law, on the other hand, is made and enforced by the State. Taylor in his treatise “The Conception of Morality in Jurisprudence’ has stated that morality emanates from natural law whereas law emerges from absolute obligation, in abstract form whereas law exists in concrete form, though both have a morality exis Separate existence but they are components of a single phenomenon. Morals are modified and adjusted with changes in society, whereas law, which is characterised as an inert outside force of the state to be set in motion. When individual 1g norms of the society, it calls for enactment of a behaviour. Therefore, genetically morality and law normativity, nee Moralities begin to clash due to chan Jaw to lay down common standards of are complementary.22 Friedmann also observed that there cannot be and there never has been—a complete istinct interaction between separation of law and morality. According to him, there is a 'w and morality but this by itself does not permit a law to be rejected on the ground of its morality.23 Reconciling the is/ought controversy and positivist’s obsession with "law as it is", R. W. M, Dias observed that those who assert law as it is, and not as it ought to be, do not deny the value of the latter, that is moral aspect of law, but only contend that the two should be kept apart. Positivism flourished in the Benthamite and Austinian period in Britain when social conditions had become stable and the necessity of projecting a rigid separation between 'what law is' and what ‘law ought to be’ occasioned only when social tions were in turmoil.24 Thus positivism represents the intellectual reaction con against naturalism and need for respect for law to maintain order in society. Kelson (1881-1973) Hans Kelson was another jurist who has the credit of reviving the original analytical legal thought in the 20th century through his ‘Pure Theory of Law’. He was born at Prague in Austria in 1881 and was a Professor of Law at the Vienna University. He was also the Judge of the Supreme Constitutional Court of Austria for ten years during 1920-1930. Thereafter, he shifted to England. He came to United States and worked as Professor of Law in several American Universities and authored many books.25 He was Emeritus Professor of Political Science in the California University when he expounded his Pure Theory of Law which is considered to be Kelson’s unique contribution to legal theory. Kelson’‘s Theory of Pure Science of Law Kelson did not favour widening the scope of jurisprudence by co-relating it with all | social sciences and rigorously insisted on separation of law from politics, sociology, metaphysics and all other extra-legal disciplines. It is quite often said that Kelson’s pure theory of law tried to rescue jurisprudence from vague mysticism and thus it was in a way revival of John Austin’s 19th century analytical jurisprudence. Like Austin, Kelson divested moral, ideal or ethical elements from law and wished to create a ‘pure’ science of law devoid of all moral and sociological considerations, But he rejected Austin’s definition of law as a command because it introduces subjective considerations whereas he wanted 22. TW. Taylor: The Conception af Morality in Jurisprudence, (1896), P. 40. 23, Friedmann : Legal Theory (1960) p, 309: 24. Dias R, W. M : Jurisprudence (Sth Ed 1985) First Indian Reprint (1994) p. 331. 25. Kelson’s main works include Austrian Constitirion (1920; General Theory of Law and State (1945); The Pure Theory of Law (1934); What is Justice (1957); Principles of International Law (1952); Revised Version of Pure Theory of Law (1960), etc. OULAINIEU WILT Gal ot