Theory of law (H. L. A Hart), Cheat Sheet of Constitutional Law

Download Theory of law (H. L. A Hart) and more Cheat Sheet Constitutional Law in PDF only on Docsity! QUESTION 1 Hart Primary and secondary rules. According to H.L.A Hart there are two types of legal rules: primary and secondary. What is the main difference between them? Primary rules are the basic legal rules that direct social behavior. They are the most paramount rules that establish the fundamental principles of law. So, primary rules are rules of obligation (they impose duties and commands) A clear example of primary rule is : “Do something or don’t do something” (Do not kill, do not steal). This command is imperative which means that in primary rules we do not have an alternative, we have to follow what is written. Rules of criminal prohibition, the individual right to the freedom of speech, the ecological law are some examples of primary rules. Let’s look at some examples of primary rules from legislation. Article 50 of Constitution of the Republic of Uzbekistan : “Citizens shall be obliged to protect the environment”. This article puts an obligation to citizens of Uzbekistan to protect the environment. There is no other choice. Oversimplified version of this article is: “Citizens must protect the environment “. Secondary rules are on the other hand do not impose legal duties. They control the formulation, amendment, and application of primary rules. But secondary rules can be legal rules which means that not all legal rules are primary rules. Secondary rules give you the power to perform particular actions IF YOU WANT TO. For instance the rules that allow the testators to create a will is a secondary rule because you can make a will if you want to but no one obligates you to do so. I mentioned earlier that primary rules are imperative norms, which means that secondary rules are dispositive norms because they allow us to make a choice. From the way I understand it ,rules that DO NOT contain commands as “Do or don’t do” are secondary rules. Also, secondary rules can illustrate you how to perform certain legal actions. For instance :getting married. You do not have to get married if it is not your will, but if you want to, secondary rules can show you how to do it in a legally valid way ( in a way that law will protect). However, sometimes it is complicated to identify if the rule is primary or secondary. I remember the citizenship case that we discussed during our classes. “A child whose both parents, at its birth, are in citizenship of the Republic of Uzbekistan, shall be a citizen of the Republic of Uzbekistan…” --Law of the Republic of Uzbekistan on Citizenship of the Republic of Uzbekistan, Article 12 A newborn can change his citizenship if he wants to, but until he is 18 (until he is legal) he has some obligations and rights that are involved in this citizenship. This example made me realize that some rules are not so obvious. And the distinction between primary and secondary rules may be very subtle and it shows us a particular connection between these two rules. The rule of recognition According to Hart, the rule of recognition is a secondary rule (it is a rule about rules). It represents the foundations of a legal system. All other rules in the legal system are identifiable as members of a system only in virtue of the existence of such a rule of recognition. Since other rules can be seen as a part of a system of rules only through the lens of the rule of recognition. Hart also mentions that the rule of recognition creates unity among different rules. The idea of the rule of recognition helps us understand how law is a set of norms. So, rule of recognition creates a systematic order for rules of the legal system. By combining all the laws into one cohesive framework, the rule of recognition connects all the laws to one another. seen as a part of a system of rules only through the lens of the rule of recognition, it is also mentioned that the rule of recognition creates unity among different rules. Harts says that rule of recognition can exist if it is accepted by the society which means that the rule of recognition is itself a valid law and a social rule because if it exists =it is excepted by the prevalent majority. The law of recognition is different in every country. The rule of recognition in the USA is distinctive from Russian rule of recognition . In Uzbekistan, the rule if Recognition contains in the law of the republic of Uzbekistan on normative legal acts. Article 6. Types of Normative Legal Acts The types of normative legal acts shall be: •Constitution of the Republic of Uzbekistan; •laws of the Republic of Uzbekistan; •resolutions of the chambers of the Oliy Majlis of the Republic of Uzbekistan; •decrees and resolutions of the President of the Republic of Uzbekistan; •resolutions of the Cabinet of Ministers of the Republic of Uzbekistan; •orders and resolutions of ministries, state committees and departments; •decisions of local government bodies. This article creates a legal order or hierarchy for normative legal acts and puts the Constitution of Uzbekistan above other normative acts. It means that these acts must not contradict the Constitution of the Uzbekistan. I think that this example clearly illustrates the rule of recognition in a particular country. Legal validity Now, about legal validity. H.L.A Hart describes legal validity as a quality of law that of law is creating social harmony and well-being of every individual. Fuller also notices that even in the very different societies there will be some similarities since men are similar, their laws tend to be alike which means that the main principles and foundation of the law remain the same. The following conditions of law: 1) Having rules 2)Publicity 3)Clarity 4)Congruence. Fuller listed eight conditions (legality) to achieve the purpose of law. He says that in order to achieve this purpose, it is not mandatory that all eight rules be completely achieved, but none of eight should totally fail to succeed. We will discuss the main four conditions of Fuller. The fist condition is having rules. It means that there should be rules to follow. For example, your teacher tells you to read a book for the next lesson, unless he tells you at the next lesson that you did not have to do it. The problem with this assignment is not having an actual assignment or exact rule to follow. Student does not know if they should read a book, but even if they should what exactly they should read? Or, you have been told that you should go to school unless Cabinet of ministries says you don’t. Again, people would be confused whether they should go to school or not. They would not know what the rule is, and even may get into trouble. So, having rules is the very first condition of law according to Fuller. If you have rules, people know what they should or should not do. However, Fuller does not clarifies the actual content of the rules ( about their equity, preserving fundamental human rights and etc) So, even the most bizarre rule can be a rule. Imagine, at work your employer declares that everyone who was born on February will have an extra month of annual vacation. We can say that this rule discriminates people who was not born on February, but it still tells you what you should obey or disobey, which means that this rule fits the criteria of having rules. The second condition is publicity (promulgation). Why laws should be published? Because you cannot expect to act according to a rule, if you did not say the content of the law. Imagine playing a basketball without knowing the rules of the game. It would not be a basketball anymore, because playing this game includes knowing its rules. You don’t know rules- you don’t know how to play. There are more reasons for laws to be published. If you have a rule, but don’t tell people what the law says, it is not accomplishing its function, because laws are made for people and having a law includes sharing it with people who will live by this law. Also, publication is significant to improve existing rules. Perhaps, a certain rule is not good enough. For example, law about domestic violence. It is a new law, so, citizens would want to add some modifications to this law, because domestic violence can be very different and broad. But, without publication citizens would not know benefits and drawbacks of the law, that sometimes can be used against them. In addition, publishing rules assists in regulating and controlling the actions of the government. Publishing hold them accountable and does let them violate their authority. For example, if a police officer tries to get a bribe from you, you can say that he does not follow the rules and that he is abusing his authority. You can make such comments only if you know what the law says. Knowing the law can help even in your daily life. If a man comes to you a tells that he should check your phone, you can use Article 27 of the Constitution that says that no one shall have the right to violate the privacy of correspondence and telephone conversations except for case and procedure prescribed by law. Without the publication of this article, you would not know how to react in such cases. The publication of laws ensures that citizen are aware of their right and responsibilities, and can hold their government accountable for enforcing them. The third condition is clarity. The purpose of the law according to Fuller is to govern human behavior, so the laws should contain enough clarity for people to know what they are expected and not expected to do. Imagine a university code saying: «Students who does not wear appropriate clothes, should be disciplined.» We know what appropriate means in general, but we do not have a clue what it means in this rule. May be inappropriate means the length of a skirt, or a certain color of a shirt. That Is the problem. We should not guess what the university officials were trying to say because simply it is not our job. We should be able to read a law and understand it clearly enough, which means that law should not include way too general terms that confuses people. Another example is a term «traditional values» that is often used in Uzbek legislation. I think that this term is not clear enough to use it in legislation because traditional values can be different in every family. Also, this term may be used by authorities to violate their powers. They can punish people for their clothes or behavior and say that it contradicts our traditional values. So, I think that this term should be clarified in future. The fourth condition is congruence. The idea that rules and regulations should be consistent and harmonious with one another is known as congruence of law. This indicates that various rules and regulations shouldn't conflict with one another or be in contradiction to one another. Rather, they should cooperate to achieve a common goal. For legal systems to be fair, predictable, stable, and to advance the rule of law, there must be consistency in the law. Additionally, it aids in avoiding doubt and confusion among the public, corporations, and governmental organizations. In addition, congruence means the agreement between the law as written and the law as applied (the official action). The written law should not be in contradiction with the enforcement of the law. Because written form of the rule and the implementation of the law are two types of expressing this rules that should function as a cooperated system. For example, one country declares itself as a democratic Republic (it is written in legislation). However, in reality people are not allowed to express their freedom of speech, the opposition is being pressed by the official government, there is no fair elections. It shows that the written and applied law contradict each other. So, congruence does not work in this country. QUESTION 2 Use the story of Gyge`s Ring to explain Hart`s idea of the internal aspect of (or, the normative attitude to) rules. Gyge’s was a shepherd who found a golden ring that made him invisible. By using this power he killed a king of his county and took over the kingdom. Plato says that there would no difference if this ring would be given to a morally good or bad person. He thinks that people only obey the rules and behave morally because they are afraid of getting caught. After reading this story some questions have been arisen: 1)Are we good only because we are afraid of getting caught? Or we have another reasons to be good? For answering these questions we have to address to Hart’s internal aspects of rules. What are the internal aspects of rules? The internal aspect of law refers to the norms and rules that are recognized as binding by those who are subject to them. Internal rules are a part of social rules. These are the rules that are enforced within a legal system and are seen by the people subject to them as legitimate and obligatory. To understand internal aspects of rules, we should understand the difference between habits and social rules. First of all, if one group’s behavior matches, it is enough to be a habit (no criticism required for not having the same habit),while for a social rule the convergence on the conduct of a certain group is not enough. For example, you go to the cinema with your friends once a week. This is your habit. You will not be criticized for not going to the cinema once. Example of a social rule is greeting with elderly people. Again, no one will force you to greet them, but by not doing so you may get harsh criticism that will be legitimate or even justified by majority of people. So, in social rules deviation from the behavior has some negative consequences, while in habits it does not. Similar behavior is enough for habits, but for social rules it is not enough. For people to act according to a social rule there must be one more thing. This thing is particular attitude towards your actions. This is called internal aspects of rule according to Hart. Let’s use the example of greeting with elderly people one more time. Internal aspects of rules motivates us to ask questions about social rules. Why should I greet with elderly people ? Do I even have to follow this rule? When you ask this question your reflective or critical attitude tries to find answers. You have your own reasons for following the rules. You explain to yourself why obeying the rules is a right and proper behavior. So, there are few reasons for greeting with elderly people from the internal aspects of rules: 1) You were raised this way. This is your cultural norm or tradition. 2) You are expected to do so, because this is what majority of people do. 3) You will be criticized for not behaving that way. 4) You may think that this is simply right thing to do. It is generally approved conduct. 5) You have the normative attitude toward this rule. It means that you have standards for behavior you believe you should follow. 6) Lastly, you may even criticize yourself. You may think that you should have greeted this person and blame yourself for not behaving that way. Now that we have explained the internal aspects of rules, we should come back to Plato. I think that we are trying to behave morally not only because we are afraid of getting caught. I think that Gyge`s internal aspects of rules were not developed