ArtsAutosBooksBusinessEducationEntertainmentFamilyFashionFoodGamesGenderHealthHolidaysHomeHubPagesPersonal FinancePetsPoliticsReligionSportsTechnologyTravel

Hart's Core and Penumbra Meaning, Legal Positivism: Fairly Legal (2)

Updated on September 15, 2013
What kind of park is it?
What kind of park is it?

In my previous article, I examine Hart's positivism view that there is no necessary connection between law and morality. The main thing of legal positivism is to emphasize the way to separate the question of what law is and what law ought to be. Morality plays no role in the task of determining what law is because it only determines what law ought to be, what we like the law be, and what good law can be. In this perspective, one identifies the law without asking any question of legal morality.


So how the judges decides in the particular cases?


Hart's version of law interpretation

Hart's view on law interpretation is quite simple. When the judges decides any case, he believes that they only decide how the law apply to the particular cases.


Consider this case: There is a rule that no sausage allowed in the park. It is clear to think this rule that sausage cannot be brought in the park. It does not resist to lunch boxes, ice-cream, and baskets. However, some cases are not clear - how about corn dogs? There is a reason to think sausage and corn dog are the same things, and there is a reason to think that they are different. Suppose that there is a person who get charged by bringing a 20 foot long corn dog in the park. How does the judge decide the case?


Hart believes that the natural language has the core of determinate meanings. The word sausage has the core of meanings. In terms of natural language, the core of determinate meanings can apply all these kinds of things. There are cases surrounding in the central cases, which means these cases are indeterminate. Hart calls these cases are penumbra cases. Whether real sausage, hot dog, or corn dog, they are the cases belong penumbra because these are not part of determining meanings. We cannot obviously see the central cases that can apply.


Since there is a lack of clarity of natural language, it makes the penumbra cases difficult. Hart claims that law does not determine what the answer should be because of the lack of clarity of natural language. In his view, corn dogs are neither permitted to the park nor does it prohibited to the park. While the judge decides any case that there are some lack of clearly in language, existed law does not give a resource to determine whether or not corn dogs counts as sausages. So, the judge has to extend the law and make the law more specific in order to make the decision. When the judge decides any penumbra cases, he or she is making new laws. For example, if the judge said corn dog counted as sausages, new rule would be formed and more determinate.


According to Hart, the judge is free to decide rules that fit in the case. The judge has the description to decide what consideration should be made and should be valid for the case. Hart believes that any judge is legitimate to make new law. When he decides the case, the consideration that they appeal to is not any legal consideration, and he has to go outside the law. The reason is because the existed law does not give any guideline to determine penumbra cases. Since language cannot give a full interpretation of penumbra cases, Hart thinks that law has many gap areas. These penumbra cases show that law is not clear and has no clear answer for the decision, so the judges have to clarify the existence law by making new laws. At the same time, they fill in the gaps of these laws.


Baker v. Nelson, 291 Minn. 310 (1971)

In Baker case, two male students in University of Minnesota, Richard Baker and James Michael McConnell applied for a marriage license in Minneapolis. The Court denied the request on the ground that they both were the same sex. The trial court ruled that the respondent was not required to issue a marriage license and specifically directed that a marriage license not be issued to them.


However, Baker argues that the law is unconstitutional because first, it denies petitioners a fundamental right guaranteed by the 9th Amendment to the US Constitution and the argument can also applied to the states by the 14th Amendement. Second, petitioners have freedom and are deprived of liberty and property without due process and are denied the equal protection of the laws, both right in fact are guaranteed by the 14th Amendment.


Unfortunately, the court dismissed and held that state did not deprive a gay couple of liberty or property without due process or of equal protection when it prohibited them from obtaining a marriage license on the basis of their sex.


Core and Penumbral Meaning of Marriage

In terms of core meaning, Hart would say that marriage is procreative by definition with heterosexual married couples that are unable to procreate by reason of infertility. Gay marriage, therefore has a penumbral meaning in which surrounds by the core meaning of marriage. While there was no legal cases dealing with gay marriage before Baker, Hart believes that the judge has to extend the law and make the law more specific. When the trial judge decides the penumbra cases, he or she is making a new laws regarding marriage. In determining this case, the trial judge has to go outside the law because the law does not provide any guideline to determine the decision.


While the court dismissed the gay couple to legalize their marriage, in Hart's view the judge may make a bad decision, but making a bad decision is based on society policy. It has nothing to do with the law in itself. In a large extent, making a bad decision in a legal case is not related to what the law is. It is only related to what the law ought to be.


Gay marriage without a doubt is a hot debate topic in both political and philosophy, in terms of legal philosophy, gay marriage has been a queer because it deals with the questions regarding religion and morality. Before I move to the next part, here are some questions that should be considered:

  • While the judge decides whether the US constitutional right is violated or not, how does he make a decision to the difficult cases?
  • When the judge decided the Baker case, is there any kind of internal morality of law?


Update 2013 September

I did this article 1 year ago. Couple points I would like to modify. However, I decided to leave it and rewrote the new blog post about Hart's legal positivism. You can check it on my new blog, LegalElite. Thanks.

Comments

    0 of 8192 characters used
    Post Comment

    • beaddve1800 profile imageAUTHOR

      beaddve1800 

      6 years ago from Toronto

      The flawed is called gay of law, according to Hart. The judge has to full all these gaps by making new laws, but when are they going to do it?

    • profile image

      ahorseback 

      6 years ago

      Interesting stuff ! I know only one thing , our system of laws , justice , and jurisprudence in America is so flawed ! GHaving recently served on a jury ... I am only more concerned with the evolution of the system of law in America . Keep on keeepin on !

    working

    This website uses cookies

    As a user in the EEA, your approval is needed on a few things. To provide a better website experience, hubpages.com uses cookies (and other similar technologies) and may collect, process, and share personal data. Please choose which areas of our service you consent to our doing so.

    For more information on managing or withdrawing consents and how we handle data, visit our Privacy Policy at: https://hubpages.com/privacy-policy#gdpr

    Show Details
    Necessary
    HubPages Device IDThis is used to identify particular browsers or devices when the access the service, and is used for security reasons.
    LoginThis is necessary to sign in to the HubPages Service.
    Google RecaptchaThis is used to prevent bots and spam. (Privacy Policy)
    AkismetThis is used to detect comment spam. (Privacy Policy)
    HubPages Google AnalyticsThis is used to provide data on traffic to our website, all personally identifyable data is anonymized. (Privacy Policy)
    HubPages Traffic PixelThis is used to collect data on traffic to articles and other pages on our site. Unless you are signed in to a HubPages account, all personally identifiable information is anonymized.
    Amazon Web ServicesThis is a cloud services platform that we used to host our service. (Privacy Policy)
    CloudflareThis is a cloud CDN service that we use to efficiently deliver files required for our service to operate such as javascript, cascading style sheets, images, and videos. (Privacy Policy)
    Google Hosted LibrariesJavascript software libraries such as jQuery are loaded at endpoints on the googleapis.com or gstatic.com domains, for performance and efficiency reasons. (Privacy Policy)
    Features
    Google Custom SearchThis is feature allows you to search the site. (Privacy Policy)
    Google MapsSome articles have Google Maps embedded in them. (Privacy Policy)
    Google ChartsThis is used to display charts and graphs on articles and the author center. (Privacy Policy)
    Google AdSense Host APIThis service allows you to sign up for or associate a Google AdSense account with HubPages, so that you can earn money from ads on your articles. No data is shared unless you engage with this feature. (Privacy Policy)
    Google YouTubeSome articles have YouTube videos embedded in them. (Privacy Policy)
    VimeoSome articles have Vimeo videos embedded in them. (Privacy Policy)
    PaypalThis is used for a registered author who enrolls in the HubPages Earnings program and requests to be paid via PayPal. No data is shared with Paypal unless you engage with this feature. (Privacy Policy)
    Facebook LoginYou can use this to streamline signing up for, or signing in to your Hubpages account. No data is shared with Facebook unless you engage with this feature. (Privacy Policy)
    MavenThis supports the Maven widget and search functionality. (Privacy Policy)
    Marketing
    Google AdSenseThis is an ad network. (Privacy Policy)
    Google DoubleClickGoogle provides ad serving technology and runs an ad network. (Privacy Policy)
    Index ExchangeThis is an ad network. (Privacy Policy)
    SovrnThis is an ad network. (Privacy Policy)
    Facebook AdsThis is an ad network. (Privacy Policy)
    Amazon Unified Ad MarketplaceThis is an ad network. (Privacy Policy)
    AppNexusThis is an ad network. (Privacy Policy)
    OpenxThis is an ad network. (Privacy Policy)
    Rubicon ProjectThis is an ad network. (Privacy Policy)
    TripleLiftThis is an ad network. (Privacy Policy)
    Say MediaWe partner with Say Media to deliver ad campaigns on our sites. (Privacy Policy)
    Remarketing PixelsWe may use remarketing pixels from advertising networks such as Google AdWords, Bing Ads, and Facebook in order to advertise the HubPages Service to people that have visited our sites.
    Conversion Tracking PixelsWe may use conversion tracking pixels from advertising networks such as Google AdWords, Bing Ads, and Facebook in order to identify when an advertisement has successfully resulted in the desired action, such as signing up for the HubPages Service or publishing an article on the HubPages Service.
    Statistics
    Author Google AnalyticsThis is used to provide traffic data and reports to the authors of articles on the HubPages Service. (Privacy Policy)
    ComscoreComScore is a media measurement and analytics company providing marketing data and analytics to enterprises, media and advertising agencies, and publishers. Non-consent will result in ComScore only processing obfuscated personal data. (Privacy Policy)
    Amazon Tracking PixelSome articles display amazon products as part of the Amazon Affiliate program, this pixel provides traffic statistics for those products (Privacy Policy)