Philosophy Dictionary of ArgumentsHome
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| Law: Law is a set of rules that are created and are enforceable by social or governmental institutions to regulate behavior. Law helps to maintain and protect people's rights. See also Rights, Society, State, Jurisdiction._____________Annotation: The above characterizations of concepts are neither definitions nor exhausting presentations of problems related to them. Instead, they are intended to give a short introduction to the contributions below. – Lexicon of Arguments. | |||
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H. L. A. Hart on Law - Dictionary of Arguments
Brocker I 594 Law/Hart: Hart's new definition of the legal concept (Hart 2011) (1) was influenced by Wittgenstein's later philosophy of language: Hart shares with all other positivists the belief that law is a conventional standard order: it is not the content but the institutional 'family tree' of a norm that shows whether it belongs to law. Problem: the right to normative validity should also be covered. Solution/Hart: Construction from the participant's perspective: a two-tier system of rules. Rules/Hart: give addressees justifying reasons for action. Their actual validity depends on whether a sufficient number regard them as internally binding. a) Rules that limit our freedom of action Brocker I 595 b) Rules that deal with rules of the first kind: how can legal rules be created, amended and invalidated? Example "rule of recognition": Whether a rule belongs to the law depends on it. It allows us to distinguish valid from invalid legal norms. However, it itself has no normative basis. It stands and falls with the recognition of the community. It follows that law and morality form two independent systems of norms. A principle of moral only becomes part of positive law through an ultimately conventional rule of recognition. For DworkinVsHart seeLaw/Dworkin. Brocker I 598 Hart's rule model follows an idea of strong judicial discretion. For Hart, the law always has an "open structure". (2) In "hard cases", according to Hart, judges must even use extra-judicial measures to justify their judgments. DworkinVsHart: that makes judges substitute legislators. They are thus competing with Parliament. Democratic-theoretical reasons speak against the idea of strong judicial discretion. Solution/Dworkin: interpretation model of law. >Interpretation/Dworkin. Brocker I 600 HartVsDworkin: Hart can show that his rule term is actually wider than that of Dworkin, thus there is also room for Dworkin's so-called objectives and principles - which Dworkin later admits. (3) Moral/Hart: Hart allows the possibility that moral arguments decide what applies legally. However, they cannot play this internal legal role simply because of its possible substantive correctness. They can only play it as far as the conventional rule of recognition provides for it. (4) The law can include moral content, but does not have to. DworkinVsHart: for Dworkin, to be and to shall play with necessity in the interpretation of the law, because according to Dworkin the law is continuously interpretative, i.e. has to get along without a conventionalist anchor point. 1. Hart, H. L. A., Der Begriff des Rechts. Mit einem Postskriptum von 1994 und einem Nachwort von Christoph Möllers, Berlin 2011. 2. Ebenda S. 150-152. 3. Ronald Dworkin, Taking Rights Seriously, Cambridge, Mass. 1977 (erw. Ausgabe 1978). Dt.: Ronald Dworkin, Bürgerrechte ernstgenommen, Frankfurt/M. 1990, S. 111-119. 4. Coleman, Jules L., »The Rights and Wrongs of Taking Rights Seriously«, in: Faculty Scholarship Series, Paper 4204, 1978, S. 897. Bernd Ladwig, „Ronald Dworkin, Bürgerrechte ernstgenommen“ in: Manfred Brocker (Hg.) Geschichte des politischen Denkens. Das 20. Jahrhundert. Frankfurt/M. 2018_____________Explanation of symbols: Roman numerals indicate the source, arabic numerals indicate the page number. The corresponding books are indicated on the right hand side. ((s)…): Comment by the sender of the contribution. Translations: Dictionary of Arguments The note [Concept/Author], [Author1]Vs[Author2] or [Author]Vs[term] resp. "problem:"/"solution:", "old:"/"new:" and "thesis:" is an addition from the Dictionary of Arguments. If a German edition is specified, the page numbers refer to this edition. |
Hart, H. L. A. Brocker I Manfred Brocker Geschichte des politischen Denkens. Das 20. Jahrhundert Frankfurt/M. 2018 |
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Ed. Martin Schulz, access date 2024-04-26