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1st Test Study Guide! Hart & Dworkin

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PHL271H1 Study Guide
Test #1 - Hart & Dworkin
H.L.A. Hart
Legal positivist
Legal positivism distinguishes law as it is from law as it should be
Feels law and morality should be separate
Law only includes moral principles insofar as legislature has specifically included them
Critical of Austins Command Theor y
The command theory aff i r ms that law is a command issued by an uncommanded commander (a
sovereign). The sovereign is obeyed by the majority, who in turn obey these commands under
threat of sanction .
How do we determine if law is actually a law?
Depending on its pedigree (if the proper judicial and legislative procedures were utilized in the
enactment of the said law
Hart’s main aim is to rehabilitate how we define legal positivism
Whether something is law does not depend on its morality, but rather, on i ts pedigree. A moral duty is not
necessarily a legal duty
To consider morality as law risks falling into anarchism (the view that is law is immoral, it is unjust and
removes all obligation to comply) and/or quietism (the view that just because something is a law, it is
The law is not simply the gunman writ larger; not only does it have teeth, but it also attempts to impose
obligation on you
Law is a union of Primary and Secondary Rules
Primary r ules are rules t hat govern condu ct
(proven t hrough the thought experi ment)
Problem of the Static Character of Rules
There woul d be no way to change rules, and no one to let everyone
know they had been changed or enacted
Problem of Ineff i ciency
When disputes arise, there i s authorit y to enforce/regulate decisions
Problem of Uncer t ainty
When people are uncert ain in regards to a cert ain r ule, there is no
author itative force to clarify
Secondary rules are r ules that allow legislature to enact, modify and alter Primary r ules
Rule of Recognition
May state that a rule must be passed through legislature; must conform
to charter of rights etc
Rules of Change
Rules which empower us to introduce new primary and secondary r ules,
and change or appeal old ones
Rules of Adjudication
Solve the problem of inefficiency; identify who is to adjudicate and
what procedures they are to follow
In harts view, a legal system is a set of primary r ules which are valid according to a systems rule of
A defining feature of the legal system is that officials accept secondary rules as being cor rect (This is the
internal point of view; the command theor y does not take the itnernal point of view and this is the key
difference between command theory and legal positivism)
Problem of legitimacy?
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