University of Kansas, Spring 2005
Philosophy 674: Philosophy of Law
Ben Eggleston—eggleston@ku.edu
Study questions: Hart
The following questions are intended to guide your reading of the assigned texts
by calling attention to key concepts, distinctions, principles, and other parts
of the texts. The questions are listed in the order in which their answers
should become evident to a close reader.
[Click here to print this
frame.]
- chapter 5: “Law as the Union of Primary and Secondary Rules”
- Hart begins this chapter by summarizing criticisms offered in previous
chapters against a certain model of law. What term does Hart use to refer to
this model? (You will soon see, as you get into the substance of Hart’s
criticisms, that the model he is criticizing is essentially that of Austin.)
- What does Hart say is to be shown “in this and the succeeding chapters”?
Note that the “two types of rule” Hart mentions are primary rules and
secondary rules, about which we already know many things, from reading Altman.
- Hart rejects the claim that in the gunman situation, B is obligated to
hand over his money to A. Call this claim P. What claim, very similar to P,
does Hart say might well be true, in place of P?
- Let the claim that is the answer to question 3 be called Q. What sorts of
considerations does Hart say determine whether a claim such as Q are true, but
are neither necessary nor sufficient for the truth of a claim such as P?
- What is the first thing that Hart mentions as being needed in order for rules to be
(correctly) “conceived and spoken of as imposing obligations”? Note that
although Hart
soon refers to this as the “primary” characteristic of obligation, this
doesn’t mean that it has any particular connection to primary rules.
- What are the other two characteristics of obligation (or of rules
of obligation, as Hart might have said more precisely)?
- What is the difference between the two ways of being concerned with rules
that Hart calls the “internal” and “external” points of view?
- What are the three defects that Hart says any structure consisting only of
primary rules suffers from?
- What are the three kinds of secondary rules that provide the remedies for
these defects?
- chapter 6: “The Foundations of a Legal System”
- Hart writes that in many legal systems, the content of the rule of
recognition is less often stated by government officials than shown in
the way in which they identify the other rules of the legal system. What is an
example of a scenario illustrating this?
- How does Hart propose that the notion of a rule of recognition can help to
explain what is often meant in calling a rule or law a valid one?
- What is Hart’s objection to the claim that someone who asserts that a
particular rule is valid is essentially just predicting that it will be
enforced by the courts (or that some other official action will be taken)?
- What is the difference between assuming the validity of a certain rule of
recognition and presupposing its existence?
- In section 2, Hart discusses two difficulties, or lines of inquiry. The
second has to do with what it takes for a legal system to exist in a given
country (or, as we have been saying, a political community). After several
pages of discussion, Hart specifies two conditions that are individually
necessary and jointly sufficient for the existence of a legal system. What is
the first condition?
- What is the second of the two conditions that Hart specifies?
- In section 3, what three ways of a legal system’s breaking down does Hart
mention?
- What example does Hart give of how a new legal system can come into
existence?
- What example does Hart give of a division among officials regarding their
political community’s rule of recognition?