Hart's Positivist Theory

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Hart’s Positivist Approach to Law and Order applied to Fees Must Fall Tamara Druckman 201229218 1.Introduction The purpose of this discussion is to consider and critically analyse the function of Jurisprudence and the law in a social, societal context. Jurisprudence aims to understand the law by considering the laws of a society is a philosophical context. In order to fully understand the functioning of a legal system and its legal rules in the professional arena, it is necessary to initially consider the ideologies of philosophy. Jurisprudence addresses the theories of law which are normative and which describe “what ought to be”. Therefore, by considering philosophy, one can achieve a holistic understanding of the law in relation to other…show more content…
One of the central and defining features of positivism is the focus on social facts and that the law is a ‘social construction’ having regard to the behaviours, attitudes and beliefs of people in their societal environment and interactions. Therefore, the normativity of the law is grounded in matters of social fact, which are non-normative, and which are not grounded in morals or morality. H L A Hart’s theory is the law as social practice which on the face of it, indicates that his theory is based on the societal practices which people participate in together as a systematic unit and this is why people obey laws. Consequently, people do not obey laws because it is morally right to do so, but because it is socially acceptable to obey such as a social rule. Thus, Hart considered the practice of law from an internal…show more content…
Such a distinction assists in the determination of the validity of rules without considering subjective morals. According to Hart, primary rules refer to the legal rules which impose duties and obligations on society and which in turn guide our behaviours. Alternatively, secondary rules are those rules which provide a criteria of validity through which the primary rules may be modified, introduced or enforced. According to Hart, a society with only primary rules will face various challenges, but such challenges can be remedied through the following three categories of secondary rules; rules of recognition, rules of change and rules of adjudication. The secondary rules are social rules and are essential to assist with the validity of primary rules. However, morality is not considered when deciding the presence of a legal, primary
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