Hart-Fuller Debate issues - Essay Example

Hart argues in the first chapter of his book that laws are varieties of imperatives that differ in nature according to the tone of the individual. The acts of human beings to ask someone for help, to request someone for an act, or to order someone to do or to abstain from doing something, which might be backed by threat, or in another case where a man might be coerced to do something are all an indigenous part of the social nomenclature in which the society thrives and survives. Hart argues that law is a social construction backed by history. Law is an institution that always did not exist. It emerged for special reasons, and because of those reasons, it has taken the form it takes.

Fundamental lawmaking power rests on the customary social rule, and it is through this rule that the sovereign authorizes itself to make laws. Hart argued that law is nothing but a social construction of primary and secondary rules. To understand the effect of such rules, it is crucial to realize that Hart identified Rules of behavior and rules of recognition as minimum standards for the existence of a legal system. We shall analyze the understanding of these rules later in the paper, but for now, it is important to distinguish to draw a parallel between these two rules and associate them with the primary and secondary rules. Primary rules may be defined as such ruled which guide the behavior of an individual by imposing duties on people, secondary rules provide for the identification, change, and enforcement of primary rules. Both these rules are attached to the law of recognition and behavior and the law works within this social pattern of living in the society.

Rules are present when there is a certain kind of social practice, regular behavior together with the set of attitudes known as acceptance.

Hart conceptualizes that wherever there is a law, there is a sovereign, characterized negatively and positively by reference to the habit of obedience; a person or body of persons whose orders the great majority of the society habitually obey. This is the fundamental relationship between the subject and the sovereign.

The most basic characteristic of democracy is the uninterrupted continuity of law-making power by rules which bridge the transition from one lawgiver to another: these regulate the succession.

Hart argues that in a sovereign State the laws are made through the acceptance of obedience of the majority of the people. The Constitution is the document that authorizes the legislature to make laws for the people, but the legislature is not beyond the law since the power vested in him was granted by the Constitution itself. Therefore, it can be argued that the Constitution is the supreme law of the land and the law-making bodies come under the purview of the Constitution. However, the lawmaker is not limited by the Constitution to enact laws, and he has the will to be obeyed by the people at the same time he does not have to obey anyone.

As mentioned before, the rules of behavior and rules of recognition constitute the foundation for any legal system in the world. In this chapter, we shall analyze the meaning and implementation of such rules in the real world from the eyes of Hart.

In a modern legal system, the criteria for identifying laws are multiple, they constitute the judicial precedents, the legislation, and a written Constitution. These laws are ranked in the orders of their supremacy in which case the Constitution is recognized as the most basic rule of recognition followed by legislation and judicial precedents. Even here, it sometimes happens that judicial precedent takes over the baton from the Constitution and derives its powers from the legislation.