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Does Hart's theory differ to the 'gunman writ large' situation?

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Introduction

Mark Rose Group B Jurisprudence Essay 1 Does Hart's theory differ to the 'gunman writ large' situation? When Hart began forming his legal theory a dominant view in legal theory literature was that law is best understood as the command of a sovereign to its subjects. The 'command' theory most actively propounded by, and identified with Austin, explained law as a matter of commands by a sovereign who is habitually obeyed by others, but who does not habitually obey others. There are regular patterns of obedience to these commands, and legal obligations exist insofar as the failure to obey is regularly followed by the application of sanctions. Hart attacks this theory at almost every point. Crucially, he argues that to take the perspective that legal systems are made up of commands backed by threats, does not distinguish the orders of a terrorist or gangster from those of a legal system. The likelihood of suffering a sanction might oblige me to behave in a certain way, but it would not impose an obligation on me. 'Law is surely not the gunmen situation writ large' stresses Hart in his essay 'The separation of law and morality.' ...read more.

Middle

However, as will now be illustrated, Hart's approach has been the subject of much debate with some critics questioning whether or not Hart has even improved on Austin. The basis for this is that a closer examination of Hart reveals that while he has sought to offer an account of law that is something more than the gunman situation writ large, his argument consistently asserts that legal obligation is independent of any moral obligations. It is this attempt to steer a middle course between the command theory as propounded by the likes of Austin and Bentham, and natural law theory that has caused some to argue that Hart's account of the law is in fact but a variation of the 'orders backed by threats' analysis. In order to grasp this, it is first and foremost necessary to delve deeper into Hart's account of law. According to Hart, a legal system can be said to exist where two conditions are present. First, officials must accept and apply a basic rule of recognition. 'Accept,' in the sense that they should regard it from an internal point of view, i.e. as the standard that needs to be complied with. ...read more.

Conclusion

Thus, there are times when Hart would appear to have moved little from Austin's command theory such as when he writes that 'so long as the laws....are obeyed by the bulk of the population this is surely all the evidence we need that a legal system exists.' In conclusion, the problem for Hart is quite clear. How can a legal positivist avoid the idea that propositions of law involve moral judgements without reducing the propositions to mere statements of fact? At the same time can one really remain a legal positivist once one claims that those legal concepts derive from an internal point of view? Perhaps, a positivist reading Hart can find some solace by adopting the Kelsen theory which may at first sight appear to abandon positivism. Indeed Murphy and Coleman in 1990 (p.27) wrote that Hart is merely Kelsen in clearer prose! Kelsen too is of the view that law looks to the attitudes of citizens. Kelsen's model of a legal system consists of a hierarchy of norms where each 'norm' is validated by the norm before it until the 'Grundnorm' is reached. Those who presuppose this basic norm view those in power as legitimately so. ...read more.

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