Hart-Fuller Debate Essay Example | Topics and Well Written Essays - 3000 words

Hart-Fuller Debate - Essay ExampleIntroduction to Harts Concept of Law Hart in his book addresses 3 critical issues. The questions which arise from these legal issues are (1) how does law differ from and how is it related to orders backed by threats? (2) How does legal responsibility differ from, and how is it related to, moral obligation? (3) What are rules and to what extent is law an affair of rules?1 Laws, Commands and Orders Hart argues in the first chapter of his book that laws are varieties of imperatives which differ in nature according to the preeminence of the individual. The acts of human beings to ask someone for help, to request someone for an act, or to order someone to do or to abstain from doing something, which might be backed by threat, or in other case where a man might be coerced to do something are all an indigenous part of the social words in which the society thrives and survives. Hart argues that law is a social construction backed by history. Law is an ins titution which always did not exist. It emerged for special reasons, and because of those reasons it has taken the form it takes. Law as the Union or Primary and Secondary Rules Fundamental law reservation power rests of the customary social rule, and it is through this rule that the independent authorises itself to make laws. Hart argued that law is nothing but a social construction of uncomplicated and secondary rules. In order to understand the effect of such(prenominal) rules, it is crucial to realise that Hart identified Rules of behaviour and rules of recognition as minimum standards for the existence of a legal system. We shall analyse the understanding of these rules later in the paper, but for now, it is important to draw a distinction to draw a parallel between these two rules and associate them with the primary and secondary rules. Primary rules may be defined as such ruled which guide behaviour of an individual by imposing duties on people, secondary rules provide fo r identification, change and enforcement of primary rules. Both these rules are attached to the law of recognition and behaviour and the law works within this social pattern living in the society. Rules are play when there is a certain kind of social practice, regular behaviour together with the set of attitudes known as acceptance.2 Sovereign and Subject Hart conceptualises that wheresoever there is a law, there is a sovereign, characterised negatively and positively by reference to the habit of obedience a person or body of persons whose orders the with child(p) majority of the society habitually obey. This is the fundamental relationship between the subject and the sovereign.3 The most basic characteristic of democracy is the uninterrupted continuity of law making power by rules which bridge the transition from one lawgiver to another these regulate the succession.4 Hart argues that in a sovereign State the laws are do through the acceptance of obedience of the majority of the people. The Constitution is the document which authorises the legislature to make laws for the people, but the legislature is not beyond the law since the power vested in him was granted by the Constitution itself. Therefore, it can be argued that the Constitution is the supreme law of the land and the law making bodies come under the purview of the Constitution. However, the lawgiver is not limited by the Constitution in order to enact laws, and he has the will to be obeyed by the