Research On Hartian Theory Of Normativity Of Law

As a well-known legal philosopher of the twentieth century, Hart holds an important position in the history of legal philosophy. His theory has exerted a significant influence on later development. His legal philosophy has remained a focus of research in the legal academy of the west. In China, however, research into Hart's legal philosophy is still in the initial stage where introductions to his philosophy abound but systematic and in-depth studies lack. The author of this thesis approaches Hart's theory from the perspective of the normativity of law. After an overview of the development course of the theory of the normativity of law in legal positivism tradition and based on detailed analysis of Hartian theory of normativity, the transformation on the problem of normativity of law in legal positivism tradition by Hart is examined. Finally, limitations in Hartian theory of normativity of law are also discussed.Chapter One of the thesis is an introduction. Chapters Two to Six form the main body of the thesis, which is ended by some concluding remarks.Chapter Two deals with the normativity of law and related issues. The author believes that the essential meaning of the normativity of law is that law has the property which means it ought to be obeyed and law can provide justifications for its subjects'actions. On this basis, the author analyzes the differences between the concepts of normativity and normative statements of law, validity of law. The author also briefly discusses various understanding of the normativity of law across different legal schools. The author holds that both natural law theory and Kelsen and Hart's legal positivism acknowledge the normativity of law, whereas early positivists and legal realists deny it.Chapter Three is an analysis of Austinian command theory of law and Kelsenian normativity of law. Because the construction of Hartian theory of normativity of law is based on the critical study of Austinian command theory of law and Kelsenian normativity of law, it becomes a prerequisite to study their theories in order to better understand Hartian theory of normativity of law. From the stance of the separation of law and morality, Austin denies the normativity of law, thus reducing legal relationship to powers relationship. He believes that laws are commands backed by threat which are issued by sovereign, to say a person has a legal obligation to do something is to say he is obliged to do something, and that the subjects obey law out of fear of its sanction. Different from Austin, Kelsen believes that normativity is the logical property of law and that law with validity is normative and should be obeyed. Based on the strict distinction between is and ought, Kelsen does not believe that the normativity of law derives from fact. Instead, he proposes the concept of basic norm to explain the normativity of law, arguing that basic norm is a certain kind of mental hypothesis or fiction, rather than fact. Without basic norm, the normativity of law cannot be established. In this part, the author also analyzes Kelsen's criticism of Austinian command theory of law, and based on this, explores their different stance with respect to the normativity of law. At the same time, the author believes that although Kelsen, as a positivist, proposes a new approach to interpret the normativity of law, he fails to demonstrate the difference between the normativity of law and the normativity of morals. Therefore, his interpretation of the normativity of law is to a certain extent flawed.Chapter Four studies the construction of Hartian theory of normativity of law. First of all, the author analyzes the methods Hart used in constructing his theory of normativity, believing that his research methods include descriptive method, hermeneutic method, concept analysis and linguistic analysis. Descriptive method has always been used by positivists, which means that the study of legal positivism does not aim for justification, and does not justify or recommend the form and structure of the legal system as described by the theory based on certain moral reason or other reasons. In term of the normativity of law, the purpose of Hart is to describe the phenomenon of law's normativity rather than to analyze what kind of normativity law should have. At the same time, Hart believes that pure empirical description is invalid for the understanding of any form of normative social structure; what is needed is a hermeneutic method, which describes the participants'understanding of rule-governed behavior. Therefore, although Hart uses a descriptive method in studying law, his description is not pure empirical description, but involves elements of explanation. This explanation especially reflects in his analysis of the internal point of view on rules held by those who accept the rules. Besides, Hart keeps using linguistic analysis to analyze such normative legal concepts as legal obligation. To him, although normative language such as"ought","must"and"obligatory"is shared by both law and morality, it possesses different meanings in the fields of law and morality. Therefore, he maintains the view that law has unique normativity. Second, the author carries out a detailed analysis of the theory of social rules, believing that this theory is the basis on which Hart explains the normativity of law. The reason why social rules have normativity is that they are accepted by the subjects in a certain scope and that this acceptance reflects in the critical reflective attitude toward rules. The subjects take the mode of behavior ascribed by rules as the guide for their behavior and consider this mode of behavior as a critical criterion. Next, the author examines Hart's criticism of Austinian command theory of law and Kelsenian normativity of law. Finally, the author demonstrates through careful analysis that in Hart's theory, social rules and legal rules are two different concepts, and therefore, they are different to some extent. In terms of normativity, the difference lies in that from the logical point of view, social rules must have normativity, whereas legal rules do not necessarily have normativity. Meanwhile, the author holds that Hart realizes some transformation with respect to the problem of normativity of law in legal positivist tradition. While recognizing the normativity of law, he refuses to consider the normativity of law as the product of certain mental hypothesis or fiction. Instead, he explains the normativity of law from the stance of non-cognitivism. His idea is that the normativity of law is not totally different from fact, but is not completely dependent on fact, either. Therefore, it is groundless to accuse Hart of violating Hume's Law regarding the issue of normativity.Chapter Five focuses on Dworkin's criticism of Hartian theory of normativity of law. This chapter aims to clarify the different stance Dworkin and Hart hold in terms of the normativity of law by analyzing Dworkin's criticism of Hartian theory of normativity of law and Hart's response to the criticism. Hart believes that law is made up of rules, so the normativity of law manifests itself as the normativity of rules. Dworkin thinks that law includes not only rules, but also principles and policies, which also have normativity. In addition, Dworkin also goes into an elaborate critical study of the theory of social rules. Hart accepts Dworkin's criticism to certain extent, acknowledging the normativity of principles and policies and reducing the application scope of the theory of social rules, but he constantly denies that the normativity of law must have derived from morality. This is the fundamental difference between Hart and Dworkin in terms of normativity.Chapter Six is composed of comments and analysis of Hartian theory of normativity of law. Hart accounts for the normativity of law based on the theory of social rules. Because legal rules are not necessarily social rules, legal rules do not necessarily possess the normativity in the sense of social rules. Then, can Hart imbue law with another kind of normativity so that normativity becomes the logical property of legal rules? What is the difference in stance between Hart, natural law scholars and Kelsen in terms of the criteria for the validity and normativity of law? Does his account of the normativity of law have some flaws? This chapter tries to answer these questions. The author believes that according to Hart's theoretical stance, normativity cannot become the logical property of legal rules. In terms of the criteria for the validity and normativity of law, the difference in stance between Hart, natural law scholars and Kelsen is that natural law scholars and Kelsen combine the criteria for legal validity and normativity. As long as law has validity, it will have normativity. The legal validity of a behavior standard is the necessary and sufficient condition for its normativity of law, whereas legal validity depends on whether law should be obeyed by its subjects. Different from this, Hart separates the criteria for legal validity and normativity. In his view, legal validity depends on whether law can meet the criteria set by the rules of recognition, and the normativity of law depends on whether law can be accepted and practiced. In addition, based on careful analysis, the author believes that Hart does not effectively demonstrate that the acceptance of law may not necessarily be based on moral reasons, nor does he fully account for the difference between the reasons for the acceptance of law and those for the obedience of law. Therefore, his account of the normativity of law is still to some extent inadequate.