Hart Positivism Analysis

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

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

Hart believes that the law is determinate, meaning that it generates generally agreed upon answers. Therefore, the law provides determinate answers to disputes in an objective manner. Hart further explains that it is not always possible for judges to adjudicate and reason in a legal manner. For this reason, Hart distinguishes between “easy” and “hard” cases in adjudication. Easy cases form part of the core which refers to those disputes which can be resolved by judges purely applying the law. However, Hart does acknowledge that there are certain hard cases which cannot be resolved by purely applying the law. In these cases, there is vagueness and uncertainty and therefore, the plain meaning will not suffice. This results in the law having gaps where there are no legal answers to disputes. Hart then refers to the penumbra. Such hard cases fall into the penumbra which then have to be settled with reference to moral and policy considerations which fall outside of pre-existing law. Courts are then empowered to perform a law-making function rather than a purely law-applying function. Consequently, judges have the discretion to make law in the penumbra because of existing vagueness and/or