Topic > Theories of Positive and Natural Law - 1422

HL Hart was an influential British philosopher, who revolutionized the philosophy of law and the methodology of jurisprudence. Influenced by Jeremy Bentham (utilitarian approach), another prominent British thinker, and by John Austin, he established new ground for the school of legal positivism, particularly the analysis of legal concepts and the idea of ​​the separation between law and morality. One of his most important works is "The Concept of Law", published in 1961, aims to analyze the relationship between law, morality and coercion. What is important here is that Hart does not argue that there is no intersection between law and morality and that laws should be completely devoid of moral aspect or consideration, but emphasizes the idea that there is no necessary logical connection between them (not always one is a consequence of the other). You cannot coin all laws either with morality or with coercion, as this undermines the relationship between them. It is important to first state Hart's definition of law, which is rules (not habits, since some aspects of morality (in everyday life) are a matter of habit, constant practice, not some legal concept) that prevent certain actions or impose certain duties /obligations. Laws have multiple and important purposes, for example they do not always confer obligations on individuals but can grant them certain privileges. Hart describes obligations and duties as, as he himself defines, the primary rules of obligation. When there is uncertainty or ambiguity regarding the primary rules that intervene between objects, or some aspect turns out to be defective (inefficient), the "secondary rules" must be introduced (e.g. correct, explain), which are: The Recognition Rules; The Rule... middle of paper... state of nature, otherwise, no matter how ineffective or unjust the ruler, the people have no power to overthrow the government. Since the social contract is now a legal way to establish connection and cooperation between the ruling body and its subjects (this same relationship is sovereignty according to the modern definition (Loughlin, p. 186)), it is very important to highlight the 3 aspects that it should be preserved if a legal state was created: an independent territory, a dominant authority (institutional body, form) and people (the tradition of the German Staatslehre) (Loughlin, p. 192). The state is now defined as "the autonomous organization and activation of social cooperation within a territory" (Loughlin, p. 208), so this social cooperation, legalized by the idea of ​​the social contract, was a necessary precondition for the state emerged and then existed.