Perspectives in jurisprudence: An analysis of H. L. A. Hart's legal theory
In his book, The Concept of Law, H.L.A. Hart claims there are two conditions, necessary and sufficient, for the existence of a legal system. First, there are those rules of behavior which are valid according to the system's criteria of validity and they must be generally obeyed. Secondly, there is the rule of recognition specifying the criteria of legal validity and its rules of change and adjudication which must be effectively accepted as common public standards of official behavior by the system's officials. The acceptance of the rule of recognition finds expression when the rule is viewed from an internal perspective. Hart does not explain what this internal perspective is or how it supports the general concept of acceptance, yet he insists on its importance. Hart states, "this is not merely a matter of the efficacy or health of the legal system, but is a logically necessary condition of our ability to speak of the existence of a single legal system" (CL, pp. 112-113). In fact, Hart rejects the command theory model of law because it lacks the necessary settled character that a legal system should possess. The settled character is contained in the internal perspective, and constitutes a sense of obligation. Without this sense of obligation, an internal perspective, and the acceptance of the rule of recognition, a legal system lacks validity. The internal perspective, however, seems to share in certain principles of a moral nature for its general expression. Such a relationship is denied by Hart. In criticizing natural law theory, which Hart believes follows in the Thomistic tradition, he maintains that there is no necessary connection between law and morality; and that where such a connection has been pushed, the consequences for law are negative. A closer analysis of Hart's theory will show that his internal perspective does indeed have ties to moral principles and that his critique of the Thomistic natural law tradition is off base. Given these facts, two alternatives will emerge for Hart. The first alternative will involve dropping the notion of acceptance which expresses the internal perspective and provides a system with its ultimate criteria of validity in the rule of recognition, given the necessary and sufficient conditions of a legal system. This alternative will prove untenable for Hart because it will render Hart's proposed improvements on the command theory model ineffective. The second alternative, which I think Hart must accept, will involve developing a legal psychology which will reinforce Hart's notion of acceptance for the internal perspective which undergirds the rule of recognition and subsequently his notion of validity with respect to the necessary and sufficient conditions of a legal system. This second alternative poses a potential compromise of Hart's denial of the necessary connection between law and morality. However, it will be demonstrated that accepting the possibility of a necessary relationship between law and morality is far less damaging to his theory than maintaining that distinction while hanging his theory on an ill-formed internal perspective. Ultimately, a blend of Hart's legal theory and St. Thomas' will produce a most coherent and viable alternative foundation for a legal system.
Boos, Eric Joseph, "Perspectives in jurisprudence: An analysis of H. L. A. Hart's legal theory" (1996). Dissertations (1962 - 2010) Access via Proquest Digital Dissertations. AAI9634261.