Justice and Good the Concept of What Term Paper
- Length: 5 pages
- Subject: Business - Law
- Type: Term Paper
- Paper: #2642332
Excerpt from Term Paper :
Justice and Good
The concept of what justice is and what constitutes a good life vary from jurist to jurist and thinker to thinker. HLA Hart is one of the most well-known jurists to come up with a concept of law that was widely acclaimed but was aggressively challenged as well. In hid masterpiece, The Concept of Law, Hart recognizes the legal system as the "combination of primary rules of obligation with the secondary rules of recognition, change and adjudication" (Hart, p. 98). Hart maintains that law is a combination of primary and secondary rules which serve as "not only the heart of a legal system but a most powerful tool for the analysis of much that has puzzled both the jurist and the political theorist" (Hart, p. 98). Hart is of the view that law as we exercise it is the sum or the system of rules. He takes a rather linguistic approach towards the explanation of the rules, laws, legal system and the concept of justice. He believes that the various sets of rules represent the term law and these rules are understood and practiced and represented by words. The specific usage of language determines the kind of social functions that these rules are suppose to perform. Some rules that are though legal in nature perform the social function of imposing duty or demand rigid accountability of acts whereas some rules perform the social function of conferring power. Hart explains his concept of the legal style with reference to rule-based vs. case-based law. The author believes that one way to differentiate between the rule-based law and the case-based law is that though the rules utilize greater power of the words and their meanings, they are not as "open textured" as case laws.
The concept is further explained by the author with the help of the difference of language and procedures and rules of the two kinds of law. Rule-based laws are based on rules that are in turn based on the medium of communication, in our case the language of English. Case laws are dependent more on the circumstantial evidence as well as on the type of situation that exists while solving a certain case. However, rule-based law is far more rigid, lacks openness and is inexorable for the reason that although "every rule may be doubtful at some points, it is indeed a necessary condition of a legal system existing, that not every rule is open to doubt on all points" (152) thereby explaining the logic behind and the validity of his point regarding the less open-textured rule-based law. Explaining the same and focusing further on the open texture concept of rules, Hart writes, "the fact that deviation from the rules will not draw down on the judge a physical sanction" to conclude that "rules are important so far as they help you to predict what judges do. That is all their importance except as pretty playthings'" (Hart, p. 139). What Hart implies by the above statement and by citing his comments regarding the rules (as not mere predictions) is that rules cannot be considered as pure and simple predictions because they are followed adequately by the courts and the judges therein.
Hart questions the definition of rules as to whether those rules that are morally inadequate be allowed to become the part of the legal system or the set of those rules that constitute a law or not. However, he further suggests that the rules must not be studied so much in detail and questioned so deeply that the legal system ends up excluding a good few of them out of the justice system based only on the moral grounds. This is because, when legal rules possess all other characteristics to be a part of law then they better be left the way they are, enjoying their status of a law rather than kicked out of the system on the basis of morality for the concept of morality is again controversial and has varied definitions.
To Hart, it is not important to question the morality of a rule: "No rule can be guaranteed against breach or repudiation; for it is never psychologically or physically impossible for human beings to break or repudiate them; and if enough…