Introduction
Legal Positivist Theory is a school of thought that states that the law of the nation is one which is created by the members of the society or their representatives and is always determined by the factors surrounding the society rather than its merits and demerits. This theory was developed by Jeremy Bentham and which was later adopted and enhanced by John Austin, which provided that the law is always a set of commands where the ruled in the society are required to adhere to it effectively and religiously. However the major question that brought varying thoughts amongst the various philosophers was, ‘How the laws enacted by the sovereign are adhered to by the governed.’
How H.L.A. Harts sought to improve Bentham and Austin’s Theory
As per John Austin and Jeremy Bentham, these laws were set by a sovereign upon the governed, and they then used coercion in order to ensure that these set laws are adhered to. In addition to this, they were of the opinion that the laws do not augur well with the governed and due to they do not respect anyone but only coerced to follow them. Into the bargain, these laws were then set in a manner that ensured that each and every individual is then able to meet his set purpose in life. However, as per H.L.A Hart, Law was a creation of human beings and due to it being a creation of human beings they were the ones who were tasked with the duty of drafting it in a manner that they saw fit. This, in turn, led to him contradicting the teachings of the other scholars who were of the school of thought that the two were connected. He brought with it various steps in order to be able to improve the theories that were already set out pertaining to legal positivism
As per H.L.A. Hart, the laws are always the commands that have been developed by human beings which differ from the notion of a pre-set purpose in this life where the law was required to help the various objects and organisms to be able to meet this purpose. In addition to this, H.L.A. Hart was of the opinion that once the law has been set, whatever it has stipulated must be followed to the latter rather than having the individuals tasked with the duty of ensuring that its provisions are all always being adhered to in all ways possible.
However, H.L.A. Hart differed from the other two scholars in the grounds that the law was not always required to be coerced in order to be adhered to. This is due to the fact that, as per the writings of John Austin, the law was only enforced through punishments and threats. However, H.L.A Hart, the laws were able to be adhered to wholly without the sovereign having to using coercion
Shortcomings of H.L.A Hart’s Theory
On the other hand, the theories of Hart have been criticized by various individuals. For example, his critics are of the opinion that even though the truth of the matter’s that the primary and secondary rules are vital components of the nation’s legal system, they are not the only sources of rules that define a nation’s legal system. This is due to the fact that Hart was of the school of thought that, the laws of the nation are enough to be able to adequately govern the nation This is due to the fact that the Primary laws help stipulate the laws of the country, whereas the secondary rules, provided the procedures that will enable the laws to be adhered to effectively.
In addition to this, his critics were of the opinion that his theory does not effectively have in place stipulations which enable the various institution in the society to function well but also the fact that as per his theory, the society will always have a body that will ensure that the law is adhered to and further have the mandate of changing it when it deems it unable to meet its set functions.
Lastly, the fact that Hart was of the line of thought that the law was only comprised of principles that must be adhered to and followed by the governed in the society as said not to effectively address all the laws. This is mainly due to the fact that the laws are also comprised of various standards which the governed are required to adhere to
Conclusion
In conclusion, this criticism of H.L.A Hart’s criticism is persuasive due to it not being able to fit into all societies and further I am of the opinion that his theory is unable to mutate and eventually fit into our society at this time.
References
African, L. (2015). Hart's Idea of obligation and his concept of law. South African Law Journal, 415-425.
Green, L. (2003, January 3). Legal positivism. Retrieved July 1, 2016, from The Stanford Encyclopedia of Philosophy (Fall 2009 Edition): http://plato.stanford.edu/entries/legal-positivism/
Hart, H. (1961). The Concept of Law. Oxford: Glarendon Press.
Priel, D. (2013). Toward Classical Legal Positivism. Positivism and the Separation of Law and Morals, 1-13.
