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Herbert Lionel Adolphus Hart

BRIEF LIFE
BACKGROUND

He was born on July 18, 1907 in Harrogate, England


Educated at Cheltenham College, Bradford Grammar

School and New College


Admitted into the Chancery Bar in 1932
He practiced as a barrister in the Chancery courts of
London. He established a successful legal office handling
complex cases involving trusts, family settlements, and
taxes.
Philosopher of positive law
He was asked to serve in the MI5 (British Intelligence Unit)
during WWII where he worked with Oxford philosophers

Married Jenifer Fischer Williams; the couple

had one daughter and three sons.


He became a Fellow and Tutor in philosophy
at Oxford from 1946 to 1952.
Was elected to the Oxford Chair of
Jurisprudence in 1952
In 1972, Hart was named the principal of
Brasenose College in Oxford.
He died on Dec. 19, 1992

Herbert Lionel Adolpus Hart (1907-1992) was

an influential English speaking legal


philosopher of the 20th century. He is the
author of the Concept of Law and was
Professor of Jurisprudence at Oxford
University. Hart developed a sophisticated
theory of legal positivism within the
framework of analytic philosophy. Hart also
made major contributions to political
Philosophy.

Hart revolutionized the methods of

jurisprudence and the philosophy of law in the


english speaking world. Influenced by J.L.
Austin and Ludwig wittgenstein. Hart brought
the tools of analytic and especially linguistic,
philosophy to bear on the central problems of
legal theory. Harts method combined the
careful analysis of twentieth century analytic
philosophy with the jurisprudential tradition of
Jeremy Bentham. The great English legal,
political and moral philosopher.

The starting of our discussion.

is harts dissatifactions with John Austins


Command Theory.
a jurisprudential concept that holds
that law is command backed by threat and is
meant to be ubiquitous in its application.

Hart likens Austin theory to the role of a

gunman in a bank and tries to establish the


differences between the gunmans order and
those made of the law.

(For instance, the gunman forces us to obey but

we may not feel inclined to obey him.


Presumably, obedience to the law comes with a
different feeling.)

Hart identifies three such important

differences:

CONTENT
ORIGIN
RANGE

In Content.
Not all laws are imperative or

coercive. Some are facilitative,


allowing us to create contracts
and other legal relations.

Austin believed that every legal system had

to have a sovereign who creates the law


(origin) whilst remaining unaffected by it
(range).
Such as the bank scenes gunman whos the

only source of command and who is not subject


to others commands. Hart argues that this is an
inaccurate description of law, noting that laws
may have several sources and legislators are
very often subject to the laws they create.

HART was also influenced by Austian legal

philosopher Hans Kelsen. Though Hart


rejected two distinctive features of Kelsens
positivism:
The idea that law necessarily requires sanctions
The neo-Kantians idea that a normative social

phenomenon could not be explained purely in


terms of social facts.

In rejecting the purity of Kelsens pure

theory of law. Hart broke decisively with


Kelsen.

|
#THECONCEPTOFLAW|
Hart most famous work is

First publish in 1961.


The book emerged from a set of lectures that

harts began to deliver in 1952 and it is a


presaged of the work of HOLMES lecture.
Postivism and the seperation of laws and
morals delivered at HARVARD LAW SCHOOL.

The #ConceptofLaw developed a

sophisticated view of legal positivism. Among


the many ideas developed in this book are:
- being a critique of John Austins theory tha
law is the command of the sovereign backed
by the threat of punishment.
A distinction between primary and secondary

legal rules, where a primary rule governs


conduct and secondary rule allows of the
creation, alteration, or extinction of primary
rules.

There are two perspectives to this:

1.) the external aspect, which is the


independently observable facts that people do
tend to obey the rule with regularity, and the
2.)The internal aspect, which is the feeling by
the individual of being in some sense
obligated to follow the rule. Otherwise know
as the CRITICAL REFLECTIVE ATTITUDE.

It is from this internal sense that the law

acquires its normative quality.


Primary rules (rules of conduct) and
secondary rules (rules addressed to officials
and which set out to affect the operation of
primary rules).

Secondary rules deal with the three problems

1st the problem of uncertainty about what the law is (the


secondary rule for this dilemma is called the rule of
recognition and states the criteria of validity of a law).
the problem of rigidity of rules (which requires rules of
change allowing laws to varied).
2nd

the problem of how to resolve legal disputes (from


which rules of adjudication arise).
3rd

As a result of his famous debate with Lord

Patrick Devlin on the role of the criminal law in


enforcing moral norms.
Hart wrote LAW, LIBERTY and MORALITY
(1963) and THE MORALITY OF THE CRIMINAL
LAW (1965). Harts work on the relationship
between law and morality had a significant
effect on the law in the UK. Helping bring
about the descriminalization of the
homosexuality, among other things.

HART-FULLER DEBATE
An exchange between Lon Fuller and H.L.A

HART published in the HARVARD SCHOOL OF


LAW REVIEW.
In 1958 on morality and law which is
demonstrated the divide between the
positivist and natural law philosophy. Hart
took the positivst view in arguing that morality
and law were separate.

Fuller reply and argued that for morality as the

source of laws binding power.


Hart uses the problem of the core and the
penumbra to illustrate the idea that laws must
be related to the meaning of the words, not any
natural or moral belief. A Core case would be
one that the statute is intended to cover.
In the classic example a statute that bans

vehicles from a park obviously is intended to


cover cars.

A penumbra case would be one not

considered by the creators of the law.


A judge interpreting such a law from a
positivist viewpoint would look to a definition
of the words of the statute.

Laws are viewed based on a purpose, not on

meaning of the words. In the vehicle in the


park example above, Fuller would say that it
would depend on the purpose for banning
vehicles from the park. For ex., if the purpose
would not be vehicle purpose of the law.
Because of this focus on purpose instead of
meaning, a judge using a natural law
interpreting a statutes relies much more
heavily on legislative history.

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