Hart, Austin, Positivism
Extract 1 : PREFACE & WHY POSITIVISM?
Extract 2 : LAW AS A SYSTEM OF RULES
Extract 3 : SUMMATION OF RESPONSE TO DISCUSSION QUESTION
SUMMATION OF RESPONSE TO DISCUSSION QUESTION
Hart's normative positivism: realism based in legitimacy
To the aspiring legal practitioner is offered a couple of
reminders of the intellectual force which an understanding
of the normative positivist analysis of law can contribute
to professional practice. First, the opinion of Lord Atkin
in Donoghue v Stevenson [1932] AC 562 in which he effectively
propounded the 'neighbour principle'. The imperative 'love
thy neighbour' was translated by Lord Atkin into the rather
more enforcement-based 'do not harm thy neighbour', so ushering
into British law the concept of duty of care in the law
of negligence in tort. In a subsequent lecture Lord Atkin
acknowledged that he knew, when he delivered his opinion,
that he 'was breaking new ground'. A later shining example
of judicial creativity at the highest level was the opinion
of Lord Diplock in Home Office v Dorset Yacht Company [1970]
AC 1004. The two opinions spanned the publication of Hart's
The Concept of Law by, respectively, two decades and one
decade. Yet the judicial approach to the development of
legal principles of liability in tort is wholly accommodated
in an admixture of all three of Hart's 'secondary' rules,
namely rules of recognition, rules of adjudication and rules
of change.
These matters are raised in the present context for
a particular reason.
The tradition of legal or normative positivism from Bentham
to Hart was always associated with a keen sense of humanity
and decency among human beings. Much of Bentham's political
and moral philosophy was espoused - and taken further -
by John Stuart Mill whose essay On Liberty represented a
watershed in philosophical debate about the relationship
between the state and the individual. The only purpose,
said Mill, for which the state (including its legislators
and judiciary generally) for which power can rightfully
be exercised against any person is to prevent harm to others.
The private good of that person, either physical or moral,
is insufficient warrant. The opinions of Lord Atkin in Donoghue
v Stevenson and of Lord Diplock in Home Office v Dorset
Yacht Company are entirely consistent with this approach
to legal intervention in human conduct. Entirely consistent,
too, is the entire tenor and analysis of The Concept of
Law.
Extract 1 : PREFACE & WHY POSITIVISM?
Extract 2 : LAW AS A SYSTEM OF RULES
Extract 3 : SUMMATION OF RESPONSE TO DISCUSSION QUESTION
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