Herbert Lionel adolphus heart was born in 1907. His famous work is the Concept of Law was published in the year 1960. He is the supporter of analytical positivism. Though he is a supporter of analytical positivism but there is a reflection of natural school of jurisprudence in his work. He is regarded as 20th century's positivist.
Hart's Conception of Law:-
According to Hart, law is a system of two types of rules, the union of which provides key to the science of jurisprudence. These rules, he called as 'primary' and 'secondary' rules. Rejecting Austin's, view that law is a command, H.L.A. Hart emphasised that primary rules are duty-imposing while secondary rules confer power and the union of the two is the essence of law. The primary rules which impose duty upon individuals are binding because of the popular acceptance such as rules of kinship, family sentiments etc. These binding unofficial rules, they suffer from three major defects, namely, (1) uncertainty, (2) static character; and (3) inefficiency. Besides, there is no agency for deciding about these rules.
The secondary rules which are power conferring, enable the legislatures to modify their policies according to the needs of the society. In fact they seek to remedy the defects of the primary rules and it is out of the union of these two types of rules that law takes its birth.
According to Hart, law is a system of two types of rules, the union of which provides key to the science of jurisprudence. These rules, he called as 'primary' and 'secondary' rules. Rejecting Austin's, view that law is a command, H.L.A. Hart emphasised that primary rules are duty-imposing while secondary rules confer power and the union of the two is the essence of law. The primary rules which impose duty upon individuals are binding because of the popular acceptance such as rules of kinship, family sentiments etc. These binding unofficial rules, they suffer from three major defects, namely, (1) uncertainty, (2) static character; and (3) inefficiency. Besides, there is no agency for deciding about these rules.
The secondary rules which are power conferring, enable the legislatures to modify their policies according to the needs of the society. In fact they seek to remedy the defects of the primary rules and it is out of the union of these two types of rules that law takes its birth.
◆Hart's Fundamental Aspect of Law:- Professor Hart in his concept of law elaborately discussed the fundamental aspect of analytical positivism. In his analysis he found two aspect which are of special importance__
Firstly, he abridges the age old conflict between the theories of law emphasising on recognition and social obedience as the essential characteristics of legal norms. Secondly the distinction in the characteristics of law in its co-related elements i.e., authority, command and sanction.
◆ Rule of Recognition:- Law is a dynamic concept and it should be changed according to the changing needs of the time, example the Constitution of India it has been amended more than hundred times; and it indicates that people of this country wants change according to the changing needs of the time. Therefore law has to be keep pack with the society. To regulate the society and the dynamism of law depend upon certain rules according to Hart. Therefore Hart evolved two kind of rules that is primary rule and secondary rule and these rules are known as rule of recognition. Accordingly these two rules have been discussed below:-
1. Primary rules :- Primary rules lays down the standard of behaviour and rules of obligation. They exist in a free Legal State of community without a legislature, Court or official of any kind. These primary rules are non changeable. Under the primary rules human beings are required to do or abstain from doing certain actions whether they wish or not, because these rules impose duties upon the individual and are binding e.g., rule of the law of tort.
2. Secondary rule:- The secondary rules are power conferring. The secondary rules ancillary to and concerned with the primary rules in various ways. These secondary rules are mainly procedural and remedial. These rules are governed by sanction only.
Firstly, he abridges the age old conflict between the theories of law emphasising on recognition and social obedience as the essential characteristics of legal norms. Secondly the distinction in the characteristics of law in its co-related elements i.e., authority, command and sanction.
◆ Rule of Recognition:- Law is a dynamic concept and it should be changed according to the changing needs of the time, example the Constitution of India it has been amended more than hundred times; and it indicates that people of this country wants change according to the changing needs of the time. Therefore law has to be keep pack with the society. To regulate the society and the dynamism of law depend upon certain rules according to Hart. Therefore Hart evolved two kind of rules that is primary rule and secondary rule and these rules are known as rule of recognition. Accordingly these two rules have been discussed below:-
1. Primary rules :- Primary rules lays down the standard of behaviour and rules of obligation. They exist in a free Legal State of community without a legislature, Court or official of any kind. These primary rules are non changeable. Under the primary rules human beings are required to do or abstain from doing certain actions whether they wish or not, because these rules impose duties upon the individual and are binding e.g., rule of the law of tort.
2. Secondary rule:- The secondary rules are power conferring. The secondary rules ancillary to and concerned with the primary rules in various ways. These secondary rules are mainly procedural and remedial. These rules are governed by sanction only.
◆ Hart's view on Law and Morality:- H.L.A. Hart does not denounce the role of natural law in his positivism. Unlike Austin and kelson, Hart contends that it is necessary for law and morality to have certain element of natural law as a logical necessity. Thus morality is implicit in hearts positive law, which he describes as union of primary and secondary rules. Hart asserts that law and morality are complementary and supplementary to each other. In this view, there are four attributes of morality namely, 1. importance, 2. immunity from deliberate change, 3.voluntary character of moral defence, and 4. forms of moral pressure which separate it from etiquette custom and other social rules. The rules of sexual behaviour provides the best example of morality.
No comments:
Post a Comment