Hart's Theory: The Austinian Theory Of Law

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Austinian theory of law as every law or rule is a command in terms of facts of obedience, rather than in terms of moral legitimacy and moral bindingness . Hart develops his own theory by exposing the flaws in Austin’s, he shares the general aspiration to construct a positivist theory of law that distinguished clearly between law and morals , substituting for the commands of the sovereign a set of norms whose legal validity depends on fundamental conventions or social rules, usually termed ‘the social thesis’ . Legal positivist is to separate law of what is and from morality what ought to be. Yet the penumbra that even the positivist judges are deciding what is and what ought to be, the law is itself not clear what is and what ought to be.…show more content…
Hart raised objection to an apparent confusion of law and morality which he discerned in the court’s decision. Fuller’s rejoinder sought to stress the significance of “ the inner morality of law” . Hart drew attention to the case of the wife-informer, she following the law is what is, it is not what ought to be as the law is a command. However, the essence of natural law, she ought not to have implemented the law because that law violates every principle of internal morality. It is a morally bad law and she’s bound by something beyond the law, which is her internal morality to not report her husband. It was contrary to the sound conscience and sense of justice of all decent human beings. The decision was seen as the hailing a triumph of victory of natural…show more content…
Dworkin insists that positivism must identify the law by ‘pedigree’ not content as it is not necessary that a principle should have been laid down in a statute or a case, but Hart does not share this view. Even if Dworkin’s account of Herculean adjudication does capture the character of legal thinking in Britian and America. Hart is not denying the existence of connections between law and morality that depend upon the particular features and practices of this or that legal system, for these would be purely contingent connections. Hurt is concerned to deny he existence of necessary connections between law and morality, grounded in the concept of law. According to him, legal validity is dependent upon criteria by the practices of officials in each legal system, specifically, by a rule of recognition. Dworkin’s response to this misfire was to deepen the nature and focus of his attack. He represents a more mature statement of his legal theory in Law’s Empire. However, many who were inclined to dismiss the argument by suggesting that it did not really contradict Hart’s theory at all. His own theory of interpretation was not a true rival to Hart’s theory, but a mere supplement to it. Hart offered a theory of law’s nature, but he did not offer a prescriptive theory of adjudication. Hart’s positivism is simply
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