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Herbert Lionel Adolphus Hart is considered to be a famous influential legal philosopher. He was born in 1907 in Harrogate. Hart’s parents Simeon and Rose were of Jewish origin. He received early education and studied at Bradford Grammar School and Cheltenham College. He managed to study at New College in Oxford. Hart was considered to be an exceptional student; he did his best in history, philosophy and classics. Earning a bachelor degree in 1929, Hart practised in Chancery courts of London as a barrister. He was a founder of a legal office where he handled different complicated cases covering taxes, trusts and family settlements.
His career took a lot of his time and most of his life. Thus, he was asked to be a professor of philosophy at one of the Colleges but he had to decline this offer because of his law practice. Nevertheless, during the period of wars, he was a civil servant and cooperated with Stuart Hampshire and Gilbert Ryle, Oxford philosophers. This cooperation caused a great interest in Hart in the study of philosophy.
The private life of Hart was successful. He married Jenifer Fisher Williams and had four children: three sons and one daughter. When the war period had passed, Hart was asked to come back to the New College; as a result, he became a philosophy tutor in 1946 and up to 1952. His activities involved the philosophy lectures at the university. His legal problems life closely interacted with the academic one. Despite this fact, Hart did not want to mix his activities and combine them into one common area. By accident, he became involved in the area of jurisprudence. His legal experience was interwoven with philosophical study and its theoretical ways. It was the beginning of his new personal development and career improvement. (Lacey, 2004)
Historical Events Influencing the Thought of the Time
The economical and political situation of that time left a print on the legal philosophy of Herbert Lionel Adolphus Hart. He managed to discover the analytical methods of political position in the country. His philosophical study covered the central problems in the economical and political atmosphere including the governmental position and international cooperation. The social aspects of the country were the background for the legal philosophy of Herbert Lionel Adolphus Hart. He managed to combine the analysis of the general philosophical view of the twentieth century with the traditions of jurisprudence being spread at that period of time. The print of the time was reflected in his legal position where he disclosed the fact that modern law is not concentrated on the moral code of the time.
His philosophical view was influenced by the social morality of the period. His main law approach was focused on the rights-based theory. The social position of the time made him be the legal theorist in the feminist of jurisprudence. He managed to disclose the human relations influencing his flow of thoughts. The philosophy of Jeremy Bentham who was considered to be an outstanding moral philosopher left a print on Hart’s concepts and theories study. (Law-Twentieth century Schools, 2007)
The basic Premise of the Philosophy and Legal Positivism
Being a legal philosopher Hart was merely concentrated on legal positivism. Positive law was the background of all theoretical and philosophical ideas of Hart. Legal positivists’ theories of the twenties centuries focused on the following key tenets:
- There is no connection between morality and legality. A law system can be instituted by an evil regime and modern society can legitimize the law;
- Legal concepts analysis covering such aspects as legal rules, system and rights;
- A sovereign is the founder of laws and is obeyed by the publicity just out of habit;
Hart supported the first two ideas and declined the third one. He considered that the legal system is not under sovereign power. Society follows the law not because of the government demands but because of the obligation system and social rules acting in the particular society.
Hart’s positivism was influenced by such legal philosophers as Hans Kelsen and Ludwig Wittgenstein. Nevertheless, Hart rejected some ideas of these thinkers: he did not support the idea that sanctions are necessary for the law and social facts cannot explain the normative social phenomenon. Hart’s philosophy was the background for the English language jurisprudence.
One of the most famous works created by Hart is considered to be The Concept of Law. This work was published in 1961 for the first time and then, in 1994. It was based on Hart’s lectures provided by him at Harvard Law School. This work disclosed the complicated view on the position of legal positivism. The book highlights the following main ideas:
- The difference and connection between the primary and secondary rules of the legal system.
The author underlined the fact that conduct is governed by the primary rules and secondary rules are the background for the extinction, creation and alteration of the primary ones.
- Internal and External distinction points;
This idea shows the relation of the aspect to the philosophical views of Max Weber and his legal and sociological law perspectives and their distinctions.
- The criticism of Austin’s theory where he stated that the law is the command being backed by the punishment;
- The Rule of Recognition;
Hart disclosed the recognition rule on the basis of the Grundnorm of Kelsen. This idea provides the differences between the norms including the law authority and those that have none of them.
- Ronald Dworkin idea;
It is a kind of reply to the great philosopher who managed to criticize the positions of legal positivism and some of Harts philosophical works such as Law’s Empire, Taking Rights Seriously etc.
The Concept of Law provides the legal positivism theory in the most powerful and systematic statements. He managed to cover the most important features of legal positivism and his philosophy. According to his study, there are the following main rules: adjudication rules, rules of change and recognition. All these rules are the background of the social legal system existing in the modern society of Hart’s period. (Ahmad, 2001)
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Hart’s approaches to the legal aspects
Hart provided the idea of respect to protecting people laws. He stated that during the period of wars people were to have means of self-defence in order to kill enemies. Hart’s axioms of philosophical laws were intended to protect people, premises and property. He supported the idea that people should have handguns as legal means of self-defence. In contrast to Hart’s legal philosophy, the representatives of the natural law considered the legalization of abortions, euthanasia and same-sex marriages to be immoral and unacceptable for the social norms and rules. His approaches were aimed at human welfare.
The positivism of law provided by the philosopher contains “approximate equality” in the society disclosed in the primary and secondary rules of his philosophy. According to Hart, there is a slight link between the natural and positive law; this concept was reflected in the legal approaches of Hart who considered the legalization of marijuana, abortion and euthanasia to be appropriate for the society of his time. (Lacey, 2004)
Herbert Lionel Adolphus Hart’s positivism in law study is considered to be the background for the legal philosophy thinkers. His major works are the following: Causation in the Law, The Morality of the Criminal Law, Law, Liberty and Morality and many others. The main idea of his legal philosophy is considered to be the morality of the law system which should be present in every legal state. Hart was the founder of many jurisprudence aspects; he managed to combine the main features of his philosophical thoughts with the legal system of the country he lived in. his main works became the reflection of the twentieth century highlighting the key issues of legal and philosophical study.
Lacey, Nicola. A Life of H. L. A. Hart: The Nightmare and the Noble Dream. Oxford, 2004.
Ahmad, Mukarram. Soft Positivism of H. L. A. Hart. The institute of Science and technology. 2001.
Law-Twentieth century Schools. 2007. Web.