A Theory from H.L.A. Harts Book, the Concept of Law - Term Paper Example

A theory from H.L.A. Hart’s book, The concept of law Introduction The mention of Anglo-American legal philosophy insinuates a ring of one name, that of Herbert Adolphus Hart (H. L. A. Hart). This is with regards to the contribution he placed in corridors of legal philosophy. H. L. A. Hart had several proposals to convey throughout his period. However, the creme of his work may be described to be contained in his book, the concept of law. This work contains a series of argument that are fetched from a wide perception cultivated from various angles of law and philosophy. However, his perception on positivism may be defined as the pinnacle of his argument. The central perception that makes this topic outstanding in the ears of the audience is the compelling attitude which it triggers from both convictions. Harts seems to perceive a differing conviction on legal positivism as compared to Ronald Dworkin. The focus of this essay will be narrowed on evaluating the perception embraced by H. L. A. Hart, and subsequently evaluating its contribution to contemporary law. Hart presents a valid argument over the challenges anticipated in the dispensation of the law, however, he does not offer an acceptable path towards the establishment of the proposed solutions to the problem. Interpretation The topic of legal positivism has been re-evaluated accordingly following the erupt of various thinkers airing a varying opinion on the subject. The central argument has been the interrelation shared by the theory and other models of the law, especially on the aspect of summation (Coleman 64). Hart argument is distributed in phases, where there exists the primary phase and the secondary phase of execution. The central argument aired by H. L. A. Hart is that the primary rules implicate or impose the observation of the law. This understanding is best exemplified via criminal law, where the law is exercised directly against the injustices and atrocities committed. H. L. A. Hart proceeds to argue that for the primary law to be effective, there needs to be a set of regulation that enacts its enforcement. To this, H. L. A. Hart presented the existence of the secondary phase of law. His assertion on the secondary phase identified various check mechanisms that steer towards the realization of an effective justice system (Hart 89). H. L. A. Hart harbours an opinion that the exercise of the law revolves around the presence of a sufficient check system that ensures its observation is based or founded on the platform of fairness and equity. In the quest to offer an elaborate illustration of this perception, H. L. A. Hart proceeds to illustrate a set of options that are embroiled under the secondary phase. This is captured under a set of rules that aim at reinforcing the continuity of the primary phase. In his opinion, the rules include the rule of the acknowledgement where the public is invited to share opinions on the course taken by the law. Subsequently, the stipulations of the law will further be analyzed via the involvement of supplementary quantification mechanism. On reference, there are options such as the rule of alterations, commonly referred to as the rule of change. The central argument aired alongside this proposal is the perception that rules can be established, altered or redeveloped to match the task of reference (Hart, 78). This implies that the law is never static; a fundamental understanding which Hart believes can only be reinforced via the embrace of the secondary phase of law. Subsequently, Hart is convinced that their desires to be established a set of stipulations that are to be undertaken upon the corruption of the law. This includes issues such as immediate therapy upon the dissemination of the inappropriate or erroneous law. On this regard, Hart proposes the embrace of the rule of Adjudication as a methodology of ensuring that the dissemination of the law is undertaken via the justified manner. A deeper analysis of this perception indicates that the incidences upon which the law is observed are mainly oriented on the positivistic assertion of the law. This amounts to the central understanding identified by Hart in his argument. This argument seems to disregard the contribution of human emotions in the dispensation of legal matters. The proposal of placing positivism in line with the dispensation of the law only implicates that the decisions made should match the demands of logic. This explains the existence of the two structures or phases of the law identified by Hart. His is the opinion that the dispensation of the law should be based on fairness, a term that is best spelt under the jurisdiction of science and acts (Coleman, 78). Apparently, there is little, if any, facts that can be coined along emotions to offer a rigid understanding of their basis (Hart, 166). Emotions are developed from the perceptions embraced by the society or the community on reference. Individuals are disabled from developing their own independent emotions. A typical example of such concerns is the considerations harboured along ethical based perceptions. There exist little, if any, concerns over the undertaking of a given ethical stipulation. The justification of such a stipulation cannot be aligned with scientific evidence but the moral perception of the bearer. This implies that ethics resemble interests that are shared or expressed by an individual in an independent state of mind (Coleman, 108). Such interests formulate the dispensations accorded to the character or morality of an individual. The quest to separate this central aspect of humanity from the dispensation of the law can be described as the introduction of inequity or unfairness in the judicial world. This can be described as the weakness of Harts perception on the law. This is because Harts shares the understanding that the law can exist without the contribution of morality. Evaluation A deeper assertion of the argument presented by H. L. A. Hart points on several perceptions that shapes the dispensation of the law. These include concerns such as the fairness of the law and the machinery placed into consideration towards establishing or ensuring that the law is dispersed with the deserved fairness. The dispensation of the law is mounted on a perception that there exists several options that steer their ambitions towards the provision of alternatives to the common law. Apparently, the law is viewed as the only tool that steers the concept of equity to humanity (Hart, 55). Therefore, there may exist a population of individuals who may wish this perception to be sidelined when their concerns are placed on reference. The central challenged identified through the argument presented by H. L. A. Hart is the quantification of fairness in the dispensation of the law. This leads to the identification of several arguments that aid the steer or the propagation of the legal positivism. Is the justification of fairness via the integration of morality into the dispensation of law qualified for the definition? Can the fairness of morals be illustrated with the aid of acceptable facts? If there lacks solid facts to support the validity or the assertion of morals, is there any need of incorporating them in the dispensation of a critical item such the law? This are the queries identified from the analysis of the evaluation of H. L. A. Hart’s perception. Unfortunately, the mentioned assertion proceeds formulate the argument of H. L. A. Hart. His is the assertion that the dispensation of the law will be proclaimed as being fair if the contribution of the moral obligations and the emotion harboured by the promoter are not projected in the dispensation. In this regard, the identified weakness of the dispensation of the law can be identified as a myth of perception (Coleman 108). The dispensation of the law is pegged on several facts, amongst them the positivism of the law and the moral obligation accorded to the same. These two aspects assist in orchestrating a successful piece of legal assertion that embraces the deserved aspects of fairness in its dispensation. The failure of ensuring that the contribution of the emotions and humanity based perceptions in the dispensation of the law is by itself an appropriate reason of establishing an argument against the reasoning by Hart. Subsequently, there exists a contradiction to the central proposal upon the evaluation of the counter mechanism provided towards the quest of a fair justice system. Hart focuses on the rule of Adjudication to identify the methodologies that may be used by the society to quantify the exercise of inappropriate law. However, the success of this model of law is mainly pegged on the descriptions fetched from the statutes of emotions. This implies that the dispensation of a justified legal system in terms of equity will eventuate into borrowing from the concepts and perceptions nurtured under the feelings based law (Hart 56). This understanding, though a contraction of the initial opinion, helps validate the solutions offered by Hart on the erroneous dispensation of the law. It is a common understanding that the law cannot be dispelled with the necessitated fairness all along. However, the establishment of a justified system upon which the law is to be exercised is equally essential. Such mechanisms and platforms ensure that the context of equity is always apprehended while in the quest of establishing a successful law. Successful, in this regard, implies that the exercised law promotes fairness and equity. An evaluation of the proposed solutions by Hart illustrates an individual that has these interests safely coined in mind. Therefore, the conclusion derived from the sketch of the secondary phase of the law can be defined as being in favour of the exercise of the necessitated aspects of the law. This implies that the observation of the law is a concept that can be best illustrate via the involvement of both the positivistic assertion and the emotional obligation of the dispenser. Dispenser, in this case, refers to the individual or organ tasked with the administration of the law. An assay on the proposed options over the indicated concerns illustrates a quest to solve a concern that withers the legal frameworks. Apparently, there exists a problem upon the observation of biased justice while in the quest of dispensing the demands of the law. The provided solutions seem to contribute in the elimination of the proposed vice upon eventual observation. There exists a positive probability of change upon the observation of the proposed secondary phase on the pre-existing legal jurisdictions. On this regard, it can be argued that the law is well preserved upon the establishment of supportive mechanism that steer at the observation of equity upon its dispensation. Conclusion An analysis of the identified arguments illustrates an elaborate identification of the factors or challenges that impend the dispensation of the law. The limiting capabilities attributed to such factors are also highlighted. A clear perception of the central argument identified by the presentation is embedded in the quantification of a just dispensation of the law. The probability of having a contrary situation where the administration of the law is founded erroneous settings forms a common understanding. Therefore, the projectile force along which H. L. A. Hart subscribes in his argument is the discernment of a just legal dispensation framework. However, the central platform upon which he embarks on proclaiming his assertion cannot be described as being warranted. In a simplified model, Hart bares a valid argument on the challenges encountered in the dispensation of the law, as well as the solutions he offers towards solving the identified challenges. However, the avenue upon which he arrives to the mentioned solutions does not promote equity in the justice system. Work cited Coleman, Jules L. Hart's Postscript: Essays on the Postscript to the Concept of Law. Oxford: Oxford University Press, 2001. Print. Hart, Herbert L. A, Penelope A. Bulloch, and Joseph Raz. The Concept of Law. Oxford [u.a.: Oxford Univ. Press, 2012. Print. Read More