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Hart's Theory Research Paper

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Hart's Theory When Hart began forming his legal theory a dominant view in legal theory literature was that law is best understood as the command of a sovereign to its subjects. The 'command' theory most actively propounded by, and identified with Austin, explained law as a matter of commands by a sovereign who is habitually obeyed by others, but who does not habitually obey others. There are regular patterns of obedience to these commands, and legal obligations exist insofar as the failure to obey is regularly followed by the application of sanctions. Hart attacks this theory at almost every point. Crucially, he argues that to take the perspective that legal systems are made up of …show more content…

To Hart, law appears as a system of rules. Hart explains that when an accepted rule exists, the regular pattern of conforming behaviour is accompanied by an 'internal' aspect. People regard the rule from an 'internal point of view' treating it as a basis for evaluation and criticism of action. To elaborate on this further, Hart distinguishes 'convergent habitual behaviour' from 'rule prompted behaviour.' In following a habit such as in the example favoured by the theorist MacCormick, where most people go to the cinema on a Saturday night, this regular conduct does not demonstrate that there is an accepted rule that one ought to go to the cinema on a Saturday night. There can be no criticism for a failure to maintain a habit. In stark contrast, where an accepted 'rule' is followed, such as that motorists should stop when approaching a red light, there exists the further feature of the subjects possessing an 'internal point of view'. That is, the perspective of those living 'internally' to the legal system and applying its rules. This is the internal aspect and such people will display a 'critical reflective attitude' towards the maintenance of the rule which is to be looked to as a standard by which behaviour can be assessed and deviance therefrom criticised. Such an attitude manifests itself in "internal statements" such as 'the law

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