The Sovereign behind the Legislature Austinian response to fact that sovereign is under legal limits Real sovereign is the people and the people that are issuing orders it’s backed by threats to the legislature Response Hart’s This still explain legal limits of the sovereign, because we just doesn’t shifted the sovereign who’s Still have to explain legal limits on the sovereign if the people are sovereign looking mirror ordering themselves?) (American’s This is better explained by normative acceptance of a rule Chapter 5 - Law is the Union of Primary and Secondary Rules Fresh Start the key to the science of jurisprudence? What’s Union of primary and secondary rules Primary - impose duty/obligations Secondary - power conferring rules; about the primary rules What does Hart mean that this is the “key”? Union of primary and secondary rules and their complex interactions between the two gives us the greatest to conceptual clarity understanding modern western legal in the simplest systems’ complexity way Never trying to give a definition This is not a definition of law, but this analytical framework for thinking about legal systems is the way to go The Two Theories Austinian Command Theory Sovereign and his subjects General orders Standing orders Habit of obedience Theory!!! Hart’s (not sovereigns, some subset of people) Social groups Acceptance of set of rules From the internal point of view Accept the rule as binding on themselves Recognizing those rules are (ought and ought not) normative rules of obligation - impose duties Primary rules - power conferring Secondary Obliged vs. Obligated Obliged Implies force or coercion which induces Focus on the likelihood of a sanction compliance External point of view- just looks to external behavior
The Sovereign behind the Legislature Austinian response to fact that sovereign is under legal limits Real sovereign is the people and it’s the people that are issuing orders backed by threats to the legislature Hart’s Response This still doesn’t explain legal limits of the sovereign, because we just shifted who’s the sovereign Still have to explain legal limits on the sovereign if the people are sovereign (American’s looking mirror ordering themselves?) This is better explained by normative acceptance of a rule Chapter 5 - Law is the Union of Primary and Secondary Rules Fresh Start What’s the key to the science of jurisprudence? Union of primary and secondary rules Primary - impose duty/obligations Secondary - power conferring rules; about the primary rules What does Hart mean that this is the “key”? Union of primary and secondary rules and their complex interactions between the two gives us the greatest conceptual clarity to understanding modern western legal systems’ complexity in the simplest way Never trying to give a definition This is not a definition of law, but this analytical framework for thinking about legal systems is the way to go The Two Theories Austinian Command Theory Sovereign and his subjects General orders Standing orders Habit of obedience Hart’s Theory!!! Social groups (not sovereigns, some subset of people) Acceptance of set of rules From the internal point of view Accept the rule as binding on themselves Recognizing those rules are normative (ought and ought not) Primary rules of obligation - impose duties Secondary rules - power conferring Obliged vs. Obligated Obliged Implies force or coercion Focus on the likelihood of a sanction which induces compliance External point of view- just looks to external behavior