Answer (soccer) must you win the game think about sanctions is there one if you do NOT win

win the game Are you subject to duty NOT to lose game What is the POINT of the game? How to win? How to score? Facilitated to score rules of the game constitute the game at least to extent HOW you understand how to win by knowing about scoring rules know little if know duty imposing rules In all games duty imposing rules CANNOT hit opponent VERY little information provided about games THUS Hart as soon as think of games with rules and social, legal and system of rules learn a lot about rules NOT only about duty imposing BUT from a different variety rules Secondary Power Conferring Rules vs. primary duty imposing function of PCR is to facilitate in terms of games and in terms of law to facilitate BOTH the ability of ordinary citizens to USE the law to get out of it what they want o Ie. make will devolve property USE rules associated with Wills NOT under duty to do so KNOW difference between critical reflective attitude difference between someone who does something stupid and someone who does something against rules whereby liable to sanction and understand WHY use language that expresses that liability Harts Concept of Law Elucidate on few concepts and see how link together for understanding of law START with primary rules of obligation and secondary power conferring rules (give facilities to make contract, make wills) o Difference in law with difference between Penal Laws and most Civil Code o CAN as Austin states that nullity as a sanction put together o BUT Hart beginning to make sense that different types of rules carry out different functions Duty imposing rules tell about OUTER limits what NOT allowed to do Power conferring rules tell MORE about what the game is all about SIMPLE difference PROBLEM with only primary (coercive) rules do NOT understand variety of rules that exist BUT do not understand what is constructed out of rules LEGAL SYSTEM constructed NOT only of coercion o What is constructed IF you live in society that ONLY had primary rules of obligation like game NOT told how to score RATHER state not allowed to handle football unless goalkeeper THUS certain basic lacks things that were missing like missing in games o KEY THINGS MISSING (i) system of rules would be static b/c how do you know when rule changes KNOW according to Hart b/c rule that will describe the conditions UNDER which rules change rule of change facilitative rule allows legal system to determine HOW rules change NOT what Austin states as positive morality MOST what Hart states lacking from Austins coercive model in terms

of basic rules needed are about constitutionalising legal system giving structure/status o ALSO need to know WHEN rule applied IF only primary rules Harts answer must have a rule of adjudication determining who within jurisdictional rule who broke rule under what circumstances NEED rules about application of rules, judges, courts, etc THESE are complex rules NOT simple of adjudication create general framework rule/rules of change and rule of adjudication THIRD to move from pre-legal world into a legal world every society MUST have (a key rule) a rule of recognition need a rule that determines WHICH rules recognized as legal rules as opposed to rules of games/moral rules/social rules or rules of clubs - in ALL systems with legal rules will have rule of recognition is a source BUT in form of rule that determined which rules count as legal rules o Ie. rule of adjudication who has authority WHO has broken rules o AND rule of change avoid rules being static, inefficient by not having rule of adjudication, and unclear with rule of recognition o LINK THIS with internal and external attitude

Internal and External Attitude Reflected in the difference between 2 phrases The phrases apply to thinking about rules MIGHT say in relation to a rule I feel bound by that rule I am being obliged to obey that rule use that phrase WHEN use phrase? Obliged by particular rule Hart USE when you KNOW that if you do not comply you WILL be sanctioned SOMETIMES I feel I have an obligation to that rule o Even when MIGHT not be a sanction BECAUSE might recognize ie. with game IF constituted by rules and that you didnt comply with particular rule that you would be spoiling the game taking advantage might state I committed a professional foul stopped someone from scoring goal - obligation NOT to do so not only b/c subject to penalty (ie. sent off) BUT b/c understand that there is rule game constituted rules obligation to them o Hart quote #5 the internal aspect of rules is often misrepresented as matter of feelings in contract to external observable behavior Internal how respond to rules Accept rules EVEN if do not like them not that necessarily like rules BUT obligation obliged NO contradiction that people accept rules BUT experience NO feelings of compulsion accept and THAT is the internal attitude Rules of Recognition Primary/Secondary

Legal system made up of concepts rules of obligation ie. Austins commands Secondary power conferring private party conferring rules individuals relying on rules of K create own legal relationships where those rules facilitate them EVEN if may not succeed and may have sanction of nullity Thirdly ALWAYS move from pre legal to legal rule public power conferring rules that facilitate the constitution of legal system rules of change, adjudication and in particular rules of recognition ie. know that Parliament makes rules because rule that recognizes that Rule of recognition recognizes SOURCES of law Harts Source Based Theory there is a rule which is a recognition rule that says and internally people can understand this whether have obligation how judges might be criticized if do not comply RULE OF RECOGNITION o What it does: (i) sets out criteria for what counts as legal rule thereby unifies ALL legal rules from 1 source does so by criteria of validity what counts as a VALID legal rule rule of recognition Hart claims it is a complex social fact (move from pre legal to legal) when you have legal system recognized by rule of recognition is a complex social fact A FACT how do we know it? (ii) WHO needs to recognize which rules count as legal rules? ALL of us in term of law are citizens do WE all need to know what rule of recognition is? IF there is a unifying rule behind UK law something like Statute law passed by UK parliament, precedents are law, EU regulations are law, international law, custom (recognized by Court lex mercatoria seems to bind certain commercial courts) With Austin all about hierarchy and the State BUT with rules LITTLE idea about WHO makes the rules BUT as soon as game played with degree of structure (moving from pre legal to legal) shout foul asking for adjudication WHO needs to know rules referee as soon as have developed structure NEED officials to apply/enforce AND to determine WHICH rules count as rules (iii) Hart suggests that we can ALL

Harts claim is that rule of recognition complex social fact represented by: (i) what officials actually do for legal system probably judges Hart does NOT do this sociologically rather logically so assume called judges look at actual behavior look at their internal attitude critical reflective attitude out of that derive rule of recognition it is a fact it exists whenever you have law (Harts minimum) able to find whenever legal system a rule of recognition which represents complex social fact of how officials of system ACTUALLY behave and what they ought to do THIS internal attitude is neutral not ought in terms of sense of morally right indeed many judges will often state apply rule EVEN IF UNFAIR/UNJUST BUT this is the rule

 NOT about ought in terms of morals BUT in terms of rules officials NEED positive attitude to rule of recognition for rule to operate MAP

Primary rules Public Rules of change Adjudication and recognition Citizens and officials o EACH with internal and external behavior what actually doing THUS extrapolate and find out rule

Internal Loose analysis because of his approach to language linguistic philosophy NOT worried that around penumbra words have no fixed meanings THUS analysis MUST be loose b/c words and concepts attach to each other in different uses of concepts in ways which change their meaning Internal Critics of Harts system of law Neil McCormick internal critic tried to reconstruct Harts concept of law critique internal attitude having obligation need something more of what sort of internal attitude necessary for officials or citizens McCormick stated must have difference between cognitive internal attitude and a volitional internal attitude MacCormick has argued that the internal attitude comprises a cognitive element (understanding the presence and nature of laws) and a volitional one (wishing those rules to be applied). o Volitional: From wish/will think that rule ought to be applied or complied with because you agree with it volitional o Cognitive: JUST about knowing what the game is and the games and rules simply a minimal acceptance that rules exist and if exist THEN can understand WHY people may respond the way they do to infraction and deviance from rules o ALSO states that within this category of cognitive/volitional: internal and external of EACH Talking of peoples attitude world of psychology world of individual emotive responses MAYBE for law to exist NEED enough people who BELIEVE in the laws BUT believe volitionally important for social coexistence OR cognitively that rules that exist IF volitionally Hart links to some notion of social order through law it is VERY close to some sort of natural law theorizing minimum context of natural law in all societies to coexist prerequisite that should have law in order to have order

McCormick states NO NEED to go this far Finnis as EXTERNAL critique Harts central case is of people who have internal attitude which requires that volitionally accept rules as basis for social order from Harts basis you end up with a natural law position

IN 1994 postscript Hart is a soft positivist is VERY close to the natural law position the underlying natural law position Last criticism of Hart From Dworkin modern legal theorist External critique of Hart says that he got it wrong! Law is NOT a system of rules that rely on rule of recognition that is somehow accepted (not morally) but by officials of system and what ought to do can draw out the source as what counts as law pedigree test Dworkin Harts wrong in this simple way IF Hart stated where Austin was wrong had 1 sort of legal rule law is coercive THEN Hart states that some laws coercive but a lot of key legal rules are power conferring distinction between obligation and power conferring o THERE ARE certainly 3 sorts standards that operate that cannot be classified as somehow RULES that are determined by rule of recognition o Question is WHAT could be the difference that creates different standards o The difference is that standards operate seen best by looking at HARD CASES cases where NO clear answer about HOW apply rules ie. CoA, Supreme Court cases IF look at cases and considered seriously what judges are doing is searching for WHAT is correct legal rule to apply to situation o Dworkin states OFTEN what applied are NOT rules at all BUT PRINCIPLES they apply standards that have WEIGHT o Have weight when not applied not sufficient in such circumstances o BUT when apply rules either applies or does not apply rules are all or nothing o STANDARDS do not apply in such a way of course when think of morals and other values MUCH easier to understand how these things have weight take standard like ought to keep promises does it go away IF circumstances that make promise to make happy on deathbed that dont keep ought to keep BUT not in these circumstances o Dworkin states NOT rule with exceptions with RULES need to think about exceptions etc so can have complex rules with complex application HERE standards that operate NOT as exceptional SIMPLY to give weight to allow judges to interpret differently in different circumstances overriding exercise all to do with weight Hart argues Supreme Court decisions about rules around penumbra because OUR officials on some occasions exercise discretion go beyond the rules Hart admits

judicial discretion as part of concept NOTHING formalistic about Harts theory JUST that in the core of law it is body of rules that rely on officials to behave in certain ways with certain attitude in relation to certain rules to extrapolate rule of recognition, change and adjudication COMPLEX linking of ideas makes up legal system When applied to international law different recognition all about behavior of states what enact through treaties recognizes that must go to officials and with courts- primary rules of obligation LESS significant BUT attempts at cooperation MUCH more significant Harts Linguistic Empiricism Harts inaugural lecture CLEARLY intended to mark a sharp break with all of these previous tendencies in analytical jurisprudence and to call in aid NEW resources for a more realistic analysis of legal concepts FUTILITY of the corporate personality debate (one of several reasons) why NEW methods were needed Viewpoint suggests an attack on empiricism b/c concepts are NO longer to be seen as representing anything in a 1-to-1 fashion Three insights: (i) Language has many meaningful forms apart from empirical description or the statement of logical proposition words used in conjunction with a background of rules/conventions to change the normative situation of individuals and so have normative consequences and not merely causal effects o POINT is that words used in legal context can ACTUALLY alter legal situations and all the expectations that attach to them (ii) Open texture of language (iii) Elucidation of the multiple forms and diverse functions of language Evident from his inaugural lecture that Hart had in mind the legal practitioner and as such seemed to breathe a healthy realism into legal philosophy Sociological Drift Hart distinguishes between the states of mind (with regard to legal rules) of insiders of the legal system and outsiders. Distinguishing duty-imposing rules: (i) Great social pressure is brought to be bear against actual/potential nonconformity (ii) Rules considered necessary to the maintenance of social life/or some highly prized feature of it (iii) Compliance thought of as characteristically requiring some sacrifice The structure of a legal system Harts image of law is that of a system in which rules govern power-holders; in which rules, RATHER than people, govern

o Implied an aspect of the deeply resonant political symbol so OBVIOUSLY missing from Austins jurisprudence the symbol of the Rule of Law! Primary Rules Duty imposing rules ALONE has defects (critique of Austin) issues that no system, static, how to conclusively and systematically enforce Secondary Rules marks transition from pre-legal to a legal order o power conferring rules o (I) Rule of Recognition: SIMPLEST remedy for the uncertainty of the regime of primary rules SPECIFIES what particular features a rules must have to be recognised as a rule of the society o (ii) Rules of Change: Remedy the static quality of a regime of primary rules b/c regulate procedures for creating or changing other rules or alteration o (iii) Rules of Adjudication: Decide WHEN primary rule has been broken -

Raz commentary Hart's legal theory portrays law as a self-regulating system of rules the rule of recognition and the other secondary rules are seen as governing the entire process of production, interpretation, enforcement, amendment and repeal of rules within the legal system. HERE RULES GOVERN POWER-HOLDERS; in which rules, RATHER than people govern government of law NOT of men ROL missing from Austin The existence of a legal system MINIMUM conditions for a legal system: o (i) Rule of recognition precondition that officials adopts an internal view of the secondary rules viewed as MEANINGFUL guides for own conduct and that of others o (ii) Citizens regularly obey the primary rules due to fear of punishment sufficient NOT needed to be viewed primary internally THIS claim on minimum conditions of existence of a legal system is important as it links the 2 FUNDAMENTAL oppositions (primary as against secondary rules, internal as against external aspects of rules) around which the whole of Hart's normative legal theory revolves. CRITIQUE that these are ultimately sociological claims that are unsupported -

**IMPORTANT point it is NOT rules which govern and provide certainty according to this line of thinking: certainty derives from the relatively settled conventions of usage and practice which reflect a degree of social consensus