Philosophical Foundation of Political Institution from H.L.A. Hart

A brief introduction about Herbert Lionel Adolphus Hart (1907-1992): He was a great British Legal Philosopher and a major figure in political and legal philosophy. He was the professor of ‘Jurisprudence’ at Oxford University and the Principal of Brasenose College Oxford.  One of his famous book is ‘The concept of Law’ (1961; 3rd edition 2012) it has been argued that pro. Hart had redefined the domain of jurisprudence and moreover established it as a philosophical inquiry of the ‘nature’ or concept of law. He is considered as one of the world’s foremost legal philosophers in the twentieth century.

Introduction: the book ‘the concept of law’ emerged from a set of lecture that Hart began to deliver in 1952, and it is passage by his Holmes lecture, ‘positivism and the separation of Law and Morals’ delivered at Harvard Law School. And the concept of law developed a sophisticated view of legal positivism. In chapter four he was talking about political sovereignty as constitute law and in chapter five he talk about law as the Union of primary and secondary.

Brief summary on reading: the Concept of Law, in chapter four, Pro. Hart focuses on how orders given by political sovereigns constitute law? When we speak about law we assume that some sovereign is behind the law, either creating it or legitimating it. This sovereignty conception of law is held to be true in democracies as much as monarchies. Sovereigns and subject are those whose order and law citizens habitually obey, and who law and authority persist into the next administration or regime.   The habit of obedience is understood to apply to a limited group of citizen, generally delimited by geographical areas. The people obey by doing things they would not otherwise do. The system of obedience is like other things, not perfect captured by the direct order analogy as many obey without any interaction with the sovereign.

In chapter five, he was distinguishing between primary and secondary rules. The first rules are sort of imposing duties; rules of the second confer public and private powers. Primary rules apply to actions that involve movement or change in the physical world. Whereas, secondary rules apply to operation, that apply to both movement and changing the creation and variation of duties and obligations.  These distinctions make sense of many difficult hitherto unsolved in the theory of law.  Mr. Hart want to explain how law make human conduct obligation is not merely about individual’s belief themselves to be obliged to do but what they in fact must do to avoid doing wrong.

Analysis on his concept of political institution as constitutional organ; Hart concept of constitutional sovereign law and the primary rules and secondary rules has far reaching affect on his thought, not only on the though and the study of jurisprudence founded upon English common law but on political and moral theory as well. Because it is a philosophical examination of the basic for law in the political institution called state. In chapter four he emphasized on the relationship between sovereign and subject, and he discuss about the habit of obedience and the continuity and persistence of law. Therefore, the examination of legal limitation on legislative power and sovereign were behind the legislature.  He proposes that law is a union of primary and secondary rules as constitutional organ in the state.  He discusses the idea of obligations and elements of law, and talk about the foundation of a legal system, the rule of recognition and legal validity.  Thereby, his work on ‘The concept of Law’ is a through going examination of the philosophical foundation of the western legal tradition.

Personal view on his ‘The Concept of Law’ on chapters four and five: Hart addresses many issues including connection between law, coercion, morality and judicial-decision making. His first important contribution on philosophy of law is his criticism of John Austin’s view on ‘law is a command backed up by coercive force’.  He was talking about sovereignty and subject, but in my understanding it depends because good citizens will not make a habit of obedience to the monarch or to the state and persistence to follow law when it affects the personal freedom. Citizens have a subject to obey the law of the state and states have a sovereign constitute law power over the citizen for protection under certain condition but it is always compulsory in my understanding because both state and citizen are inter-dependent one another.  And he was talking about the distinction between primary and secondary rules; such that a primary rule governs conduct, such as criminal law and secondary rules govern procedurals method by which primary rule are enforced, and this ideas is highly supported.

In conclusion; Hart work on ‘The Concept of Law’ received a great appreciation from many legal experts around the world. His first contributions come from the critic to John Austin’s ideas law; in chapter four he was talking about sovereigns and subject as on how orders given by political sovereigns constitute law.  When we speak about law, we assume that some sovereign is behind the law, either creating it or legitimating it. This sovereignty conception of law is held to be true in democracies as much as monarchies and the citizen habit of obedience is the subject to the state. And in five chapters he was focusing on the different between primary and secondary rules; Primary rules governs conduct such as criminal law and apply to actions that involve movement or change in the physical world. Whereas, secondary rules govern the procedure method by which primary rules are enforced and apply to operation that apply to both movement and changing the creation and variation of duties and obligations.

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