Tuesday, May 5, 2020

Consider H.L.a Harts Critique of Austin Positivist Theory Essay Example For Students

Consider H.L.a Harts Critique of Austin Positivist Theory Essay The significance of the critical reflective attitude is then discussed and, finally, the sociology of secondary rules will be examined. This paper will conclude that, while Hart infused his theory with sociology in an attempt to circumvent what he saw as the restrictive nature of Justinian formalism, he remained true to the core tenets of positivism, and, ultimately, expounded a positivist theory, not a sociology, of law. Locating or formulating definitions of the concepts discussed herein, such as positivism or sociology of law, is difficult. For example, legal positivism Has been variously evolved and Hows signs of excessive pluralism and theoretical fragmentation So much so that nothing we can say about lit] can be agreed to by all positivists. 1 Yet such definitions are necessary in order to place Harts theory on the theoretical spectrum. Given that this paper is concerned with these concepts at a general level, determining where Harts theory lies in the broadest sense, general definitions Will suffice. Cottrell Offers such a definition-2 He suggests a distinction between normative and empirical theories of law, corresponding to jurisprudential theories and sociologist of law respectively. The former is a theory which seeks to explain the character of law solely in the terms of legal doctrine *and other legal the latter seeks to explain the character of law in terms of historical and social conditions and treats Law as Explicable in terms of their social origins and effects. 4 Razz5 definition of positivism is helpful as it seeks to identify the essence of traditional positivist theories, rather than a specific_ definition. 5 Razz notes that major theses have been traditionally associated with legal positivism the reductive semantic thesis, which proposes a reductive analysis of legal tenements according to which they are Nan-normative, descriptive 1 2 Lets, H. L_A Harts Conception of Law Clearinghouse Review 187-194, 187. Cottrell, The Sociological Concept of Law (1983) 1 CO of L Society 241-255, 241. However, note Moore, Description and Analysis in the Concept of Law: a Response to Stephen Perry (2002) 8 Legal Theory 91-114, 99 suggesting that even Cottrell general framework may be unhelpful. 34 S Ibid. Ibid. Razz, the Purity Of the Pure Theory in Opener, Shift and Nobles (des), Introduction to Jurisprudence and Legal Theory: Commentary and Materials (LIP, Oxford 2005) 202. tenements;6 the contingent connection thesis, which states that there is no necessary connection between law and moral the sources thesis, that the identification of the existence and content of law does not require resort to any moral argument. 8 Freeman suggests that sociological theories of law generally involve a rejection tot the uniqueness tot law and tot law as a closed logical order, a focus on the law in action and use of sociological methods. G Harts Descriptive Sociology Claim An obvious starting point for this assessment is Harts notorious 10 hope, expressed in the preface to The Concept of Law, 1 that his work may also be of use to those whose chief interests are in Sociology, rather than in Ian/ and that *notwithstanding its concern with analysis the book may also be regarded as an essay in descriptive sociology. 12 Adding to the definitional evokes outlined above, Hart fails to define what he meant by descriptive sociology. As Krieger notes, *a+ sympathetic critic can be skeptical about the claim Because the idea Of a descriptive sociology Of law is not developed, 13 suggesting that perhaps Harts failure to define descriptive sociology itself shows that he was not too concerned With this aspect Of his hurry. It is clear that Hart was referring to a subset of sociology generally and it is sufficient therefore to determine Whether Harts theory is sociological in the more general sense identified by Cottrell. There are three angles from which to approach Harts claim to descriptive sociology: the first is textual, analyzing the formulation of Harts claim; the second is biographical, looking to Harts background in an attempt to discern whether he was genuinely committed to his sociological claim; the third is an overview of the path that Harts theory took, ascertaining whether he followed through with his claim. As for the first approach, whilst remaining aware of the danger of putting too fine a point on Harts choice of words at the expense of understanding his overall project, it should be horn in mind that Hart said his work nay also14 he considered a work tot descriptive sociology, suggesting that it was 6 7 8 9 Ibid. Ibid. Ibid. Freeman, Law and Sociology « (2005) 8 Current Legal Issues I-IS, I _ Twining, Saucer on Hart (2006) I Gig Harvard L R Forum 122-130, 127. Hart, The Concept of Law (2nd Eden JPG, Oxford 1994). Ibid preface. Krieger, The Concept of Law and Social Theory (1982) 2(2) OILS 155-180, 157 Hart (n I I) emphasis added). 1011 121314 primarily intended to be a work Of jurisprudence that could be interpreted in a sociological light. He also stated that his theory may be of use15 to other disciplines, suggesting that, While sociologists and anthropologists could gain insights from his work, to paraphrase Krieger, he was not doing what they do . 16 Lacey has written extensively on Harts life, 17 and her observations Harts background illuminate the extent to which Hart intended to engage in sociology. She notes that, given the low status of the social sciences at the time, 8 that Hart was a philosopher by training as well as by deepest disposition, 19 and considering his criticism of sociological method,20 his claim is surprising. However, as Hart was never a man to use words lightly,21 Lacey concludes that we must assume that the Prefaces claim was a considered one. 22 Hart who harbored an Axon antipathy towards sociology23 (though he regretted this later)24 would not have made this unusual claim had he not fully intended to do so. Harts determination to move beyond the conceptually rigid positivists of Austin and Kelsey25 compellingly confirms that we should take Harts claim rigorously, Harts extensive attack on Austin was partly based on Harts assertion that Sustains formalism was unduly restrictive. It is in the context of solving this problem that the sociology in Harts account arises, as laws social being to reveal the inadequacy of the reigning positivist conception of that of Austin. In the preamble to The Concept of Law, Hart expresses his wish to break from Justinian linguistic analysis by referring to the social context of words. 27 Nevertheless, Hart still emphasizes, quoting Austin, using a sharpened awareness of words to sharpen our perception of the phenomena. 28 516 1718 19 2021 222324 Ibid (emphasis added). Krieger (n 13) 159. Lacey, A Life of HAL Hart: The Nightmare and the Noble Dream (POP, Oxford 2004). Lacey, Analytical jurisprudence versus descriptive sociology revisited (2006) 84(4) Texas L R 945-982, 948. Ibid 948. Ibid. Ibid. Ibid. Twining (n 10). See D Sugarcane, Hart Interviewed: H. L. A. Hart in Conversation with David sugarcane (2005) FL society 267-293, 25 26 27 28 Lacey (n 18) 949. Fitzpatrick. The Mythology of Modern Law (Rutledge, London 1992) 6. Hart (n 11). Ibid. Harts intention appears both confused and confusing, but, overall his intention id not appear to be to offer a sociology of law: he was not intending to explain the character of law in terms of historical and social conditions. 29 Hart states that his work is primarily designed for the student of jurisprudence30 and emphasizes the importance of analysis and linguistic philosophy. Harts philosophical background and initial contempt for sociology further emphasis this. Nevertheless, it is clear that Hart would not have referred to sociology had he not intended to use it in some way. Finally in relation to the preamble, it must be considered Whether Hart actually attended to this claim. In this regard Fitzpatrick dra ws Hart along a sociological drift,32 arguing that a commitment to sociology would have led Hart along a different path. Fitzpatrick argues that the theory is with desperate metaphor rather than sociolinguistic or sociological observation. 83 Weight is added by Lets, who laments the hypothetical linguistic convergence34 employed by Hart, who assumes that there is some linguistic convergence about the use of legal rather than adducing evidence, Cottrell agrees that this is not descriptive sociology, speculative philosophy. 36 Lets goes further by asserting that the very act that Hart is attempting to answer such persistent questions37 as What are rules? Is already a step away trot the descriptive approach Because are not constituted by virtue of something that can be described but by something that puzzles us for non-empirical reasons. 38 Lacey agrees, arguing that the structural features of Harts theory, prevented him from building upon his %sociological claim+ . 39 From this brief selection of criticisms of Harts sociological claim it can be seen that he had much to elaborate on if he was to meet the expectations created by his statement in the preface. Women's Role in Society: D. H. Lawrence EssayHart maintains the positivist sources thesis, as the existence and content of his natural law emanating from human nines, and the contingent connection thesis, as Hart does not acknowledge a necessary connection between law and morality, only that some moral content is inevitable in any legal system with the social function remains one of facilitating human survival, The Sociology of Secondary Rules Harts conception of a legal system as the union of primary and secondary rules is yet another example of a sociological thread in his theory. Harts discussion is rooted in the social context that he thought necessary tort explaining the law and he discusses this notion with reference to the social situations of the human beings and societies that ales apply to. He starts by asserting that only a small community closely knit by ties of kinship. Could live successfully by, a regime of unofficial rules and that larger societies require secondary rules to cure the defects that arise from such a regime_63 The sociological implications of Harts conception of secondary rules have been most thoroughly explored by Calvin and Fallers. 4 Calvin has used Harts conception of the union of primary and secondary rules as a conceptual framework for analyzing primitive legal systems, illustrating how this union is sociological in nature and, in the process, gathering the kind of empirical sociological evidence that Fitzpatrick thought to be missing from The Concept of Law. Poor instance, he analyses Hovels observations of Eskimo Ian, specif ically the way that the Eskimo deal with a two-time murderer by executing him following interviews With the community. 5 Calvin views this, rather than through the lens of coercion, as Hovels work is often viewed,66 but through the Hartman lens Of primary and secondary rules. He notes that the procedure is socially recognized privilege of applying physical a rudimentary secondary rule Of enforcement. 67 Furthermore, Calvin notes the sociological origin of what seems to be a rule of recognition based on custom. 68 What is most interesting about Collies idea that Harts union of primary and secondary rules can be 6354 Hart (n 11) 92. Calvin, The Sociology of Secondary Rules (1978) 28 University of Toronto Law Journal 196-214. Fallers, Law without Precedent (University tot Chicago Press, Chicago 1969) using Harts conception of law as the union of primary and secondary rules to highlight distinctions between different societies. 65 66 67 68 Hobble, The Law of Primitive Man (Harvard University Press, Hard »award 1954) 25-6. Calvin (n 63) 206. Ibid. Ibid. Seed as a conceptual framework to organize information about different legal systems is that this, rather than being a stretching of Harts theory,69 appears to be the use Hart intended to be made Of his theory. Hart suggested that this union constitutes a most powerful tool for the analysis of much that has puzzled both the jurist and the political theories, 70 and, having accepted that his claim to have produced a descriptive sociology, as opposed to a model which could be used by sociologists, had been renaissance, 71 thought that a better formulation of his theory would be that it provides the normative incepts required for a descriptive sociology. 72 This appears to suggest Hart had the broader aim of facilitating complementarily between jurisprudence and sociology, and an aspiration that jurisprudence be of use to social scientists and sociological scholars. 73 Calvin and Fallers, in utilizing Harts theory as a conceptual framework to better describe and understand primitive societies and legal teemed, used Harts normative concepts in order to expound a descriptive sociology, a use tot Harts theory that Hart himself would surely have advocated. Harts Concept of Law: Positivist Theory or Sociology? To return to the definitions at the beginning fifths paper, Harts theory is difficult to place at one of the distinct positions in Storytellers framework: it is not wholly internal, because it does contain strands of sociology and looks to inform an understanding of law with social context, yet neither is it a sociology of law, seeking to explain law in terms of social origins and effects. In any case, it is arguable that such a clear distinction between conceptual and empirical accounts in unhelpful at the level of concept formation, as that level we are always in the intermediate sections of examining phenomena and trying to capture their substantial differences in our definitions;74 this certainly seems to be the case here. Indeed, Harts theory Of law, as discussed, contains elements that tan rightly be characterized as sociological and these elements do distinguish Harts theory from those Of positivists generally, Who, like Austin and Kelsey, reject sociology altogether. 5 Both the acclaim and criticism that Harts theory attracted is partly a consequence Of this position: a positivist jurisprudential theory, Which nonetheless attempted to incorporate elements of sociology and acknowledge he rigidity and failings of prior positivists in eliminating all extra. Legal elements 69 70 71 72 73 74 75 As Calvin himself suggests that it may be. Ibid 196. Hart (n 11) 98, Lac ey (n 17) 233. Written in a notebook of Harts. Lacey (n 18) 949. Ibid. Moore (n 2). In Kelseys view a science of law Resents legal reasoning as a realm of thought and understanding wholly apart from sociological observation, Freeman (n 9) 8. From jurisprudence. The protracted, inconclusive and sometimes unedifying debate76 that Harts theory caused is a testament to its unusual position, which s well illustrated by now returning to Raise definition of positivism. 77 Harts theory fits squarely within the latter two tenets of positivism enumerated by Razz, While at the Same time infusing these theses with sociological elements. For instance, Harts gesture toward natural law is a positivistic one, yet at the same time it is sociological, deriving natural law from the social context Of the human beings that use it. Hart also maintained the contingent connection thesis in holding that the existence and content Of law does not require resort to any moral argument. 8 but instead can be objectively ascertained by reference to social facts. 79 The reductive semantic thesis is not followed, but, as Razz himself notes, the three theses are logically independent and one is free to accept any one of them while rejecting the others. 80 Far from suggesting Hart was offering a sociology of law,81 this rejection is simply a manifestation of Harts wish to break free of the confines of reductive semantic statements, used by other positivists,82 appealing instead to social facts and context. While showing that Hart incorporated elements of sociology, it is important not to overstate hem and to bear in mind the limited extent to which Hart followed up on his descriptive sociology claim. Considering Harts theory in light tot Freemans tenets of sociological theories of law further illuminates the fact that Harts theory did not move particularly far toward becoming a sociology of law. Hart did not reject the uniqueness of law,83 nor did he focus on the law in action, but instead the concept of law itself, and he did not use sociological methods. Hart did seem to suggest he was aiming to make a greater move toward sociology when he insisted on the descriptive nature of his project in answering natural law critiques. However, the finches nature84 of this sociology and his realization that his reference to descriptive sociology was deficient, as it overstated the extent to which his theory involved sociology and did not properly 76 77 78 79 80 Lacey (n 18) 946. Razz (n 5). Ibid. Ibid 203. Ibid. In this connection it is worth noting that Kelsey also rejected the reductive semantic thesis, though for different reasons, yet Shekels theory is most definitely a positivistic one. Ibid 202-3. 2 83 84 Ibid. See Hart (n IIS 1, commenting on laws uniqueness. Lacey (n 18) 355. Reflect his intentions and, further confirms that Harts was a positivist residential theory of law, seeking only to be informed by social context. Hart himself, with hindsight, thought that a better formulation would have been to say that the book provided the normative concepts required for a descriptive a formulation more in line with his theory being of use to sociologists than being sociology itself. Conclusion Harts theory has undoubtedly been the catalyst for an unprecedented level of interdisciplinary dialogue, inspiring new theories involving jurisprudential and sociological thought. 86 However, it is clear that Hart visas not offering such a interdisciplinary theory myself: he was merely weaving some sociological threads into an essentially positivist theory, intending to place law in its social context and break free, with a fresh from the excessive formalism of the past.

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