Summary of Legal Positivism Concept and Hart's Separation of Law and Morality: Fairly Legal (1)
One of the reasons why I watched Law & Order: Special Victims Unit is because of Christopher Meloni. He often investigates violent sex crimes and provides a surprising twist to his job. In fact, including the original format of Law & Order, all these series has a philosophically interesting plot regarding the relationship between law and morality.
In order to look at the relationship between law and morality, legal positivists hold that law and morality are two separated conditions. In other words, legal separation makes the distinction of what the law is and what the law ought to be totally.
Hobbes's Command Theory
Since this question regarding the relationship between law and morality has been asked for many years, this question often answer in term of social-political phenomenon. For example, in his Leviathan, Hobbes introduces his command theory while he believes that law is one kind of command from sovereign. Sovereign is the person who gives the command to people, and peopple have to obey his command.
In reality, there are something similar. Canadian government passed Chinese Head Tax law many years ago. Based on Hobbes's command theory, people has to listen to this law and obey it. This law nevertheless raises a question of what determines the conditions of legal validity. Is it based on the social-political phenomenon? Or is it based on the social practice?
The Condition of Legal Validity
Based on the Chinese Head Tax law in Canada, it shows the conditions of legal validity are determined by certain social facts. There are two separate claims in the social facts. First, the law is a social phenomenon. Second, there is a conceptual separation between law and morality. Legal positivists followed Hobbes's view that law is an instrument of political sovereignty. However, in twentieth century, so legal positivists modified this view. They claims that an act of legislation or a judicial decision is the main source of law.
The first kind of analysis, employed notably by H.L.A. Hart, is necessary to be into "the social acceptance of a rule or standard of authority." In other words, legal positivism is sort of sources thesis and is based on the source thesis. If one wants to know what the law is in particular society, then she should look at the fact of what the society needs.
The second thesis is an important one while it maintains the conceptual separation between law and morality. Which means, this separation thesis draws the line betweenwhat the law isandwhat the law ought to be.Since there is no necessary connection between law and morality, there is no role for morality to play in the task of determining what the law is.
Hart's Primary Rules and Secondary Rules
For Hart, he believes that people in the society generally obey rules. When a society has no court or police, it will have some sort of informal rule to organize the social life. Since people wants to secure their life, they have to follow the informal rule. Hart calls these rules as primary rules.The primary rules specify what the obligation are in the society and what they supposed to contribute to be good in the society. In other words, primary rules are a set of rules of conduct. For example, criminal prohibitions, tort rules, and individual right to freedom of speech are primary rules because these rules prohibit theft, forbid certain conduct, and provide for penalties for violating the prohibition.
Although primary rules tell us the rules of conduct, they do not tell us how they work. Hart claims that the secondary rules are the rules about primary rules, and they determine how primary rules work. The secondary rules contain three rules. (1) The rule of recognition - it is the rule to tell us how to identify which are the primary rules. This rule helps us to identify the uncertainty which rules are rules when a society has many primary rules. (2) The rule of change - it is the rule which specifies the procedure of changing the primary rules. It provides a guideline of what the procedure people have to follow when they want to either add or remove primary rules to the society. (3) The rules of adjudication - this rule establishes a way to determine how the primary rules can apply in particular cases.
In our current legal system, contract law rules that protect parties to form contracts and the constitutional rules that confer legislative powers on Congress are the example of secondary rules. For Hart, the secondary rules are important especially the rule of recognition because it is the matter of social fact. The rule of recognition does not need to be written down on the book. Instead, it is the rule that society accepts as the authority way to determine what the primary rules are.
In short: Hart believes that a legal system is not just a system of primary rules. He claims that a fundamental legal system should involve both primary rules and secondary rules. Rules are obligation from particular people what ought to do. Secondary rules allow us to identify what the rules in the system are. It can tell us what the procedures are. This view does not appeal any moral value in social fact.
Break for Thinking
So much legal information, eh? I am going to stop this discussion here.
Before I move to the argument, think about the following questions.
- If Hart's view of legal system is correct, what judges actually do? Do they just read and apply the law from the book?
- If law is only a matter of social fact, how do judges make the decision in difficult cases?
Here is the second part of Fairy Legal.
Update 2013 September
I did this article 1 year ago with another hub. I would like to modify couple points because they were not so clear. However, I decided to leave it because I could see my mistake. I rewrote the new blog post about Hart's legal positivism. You can check it on my new blog, LegalElite.