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Lecture 3

Lecture Three Reading Ronald Dworkin's "Law's Ambitions for Itself" (1985) and H.L.A. Hart's "The Concept of Law" (1961). Notes taken from readings and summarized to what was directly related to lecture material.

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Sophia Moreau

Reading Lecture Three In Harts opinion the elements of law consist in primary and secondary rules Is a society without a legislature possible The only means of social control in such cases would be the general attitude of the group towards its own standard modes of behavior We our kinds of societies have simply made these rules obligatoryThese societies are called ones of custom but this implies that the rules are old and supported with less social pressure If a society like this is to happen there are certain conditions that must be clearly satisfied 1 Restriction on violence theft deception in order to coexist These sorts of rules are found in all primitive societies they are basically in our society rules of obligation to positive duties 2 Those that reject the rules must be no more than a minority If they wish to endure in other societies such as ours fear makes them conform But in these cases since there is no fear peer pressure should make them conform hence if there are more people rejecting the rules there will be no peer preassure This kind of community is only possible with a close tightknit people who share same ideals and have a safe environment It will be defective if all other situationscases In Harts view there are three issues with societies that only have these sorts of primary rules 1 Social standards the customs do not create a legal system but a set of standards If doubt arises in regards to what the rules are there will be no authoritative text or person to refer to For acknowledging authority in the first place requires rules of a different typethat is obligatory This is the problem of the groups uncertainty 2 The static character of the rules the only kind of change possible will be through slow growth There could be no deliberate adaptation of rules to changing circumstances because this act presupposes a type of rule that differs from theirs In extreme cases the rules are static in such a drastic sense that no one would the ability to change rules either by deliberate choice or by a change to the general rulesPeople would have fixed dutiesobligations Some may benefit from the performance of these duties but would have no way to release the people or role onto someone else since transfer and release imply change to rules and there is no deliberate way to do that3 Inefficiency of diffuse of social pressure by which rules are maintained If a question arises about a violation of law there is nothing authoritative to give an answer Also how would punishment for violation be decided In order to fix these 3 we must add onto the primary rules with secondary rules They have important features in common but are on a different level than primary rules Since they are all about and concerned with the primary rules Basically secondary rules can tell us how primary rules can vary when they are violated and the like The RemediesSecondary Rules 1 To remedy the uncertainty we create the Rule of Recognition This is about recognizing authority to the rules as in written tablets monuments and acknowledgement of the proper way to disposing doubt about the rules It is the conclusive identification of the primary rules of
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