A Study Of Hart's View Of Legal Validity

In the research on Hart's legal thoughts in China, there is a regrettable lack of attention to his view of legal validity, and 'the view of logic validity'is commonly used to cover this shortage. This simplification cannot convey the plentiful implications of Hart's view of legal validity. Efforts have been made in this paper to make a holistic analysis of his view of legal validity under the background of linguist philosophy and legal conceptualization. By the means of the analysis of concrete problems concerning Hart's view of legal validity, this paper is meant to give a full-scale description of Hart's concept of legal validity. Chapter one of this paper is devoted to the discussion of the background of Hart's view of legal validity with linguist philosophy in view. Linguist philosophy is derived from philosophy of language and it sheds great influence on Hart. Based on the criticism of the traditional way of definition, Hart introduced into legal research the method of linguist philosophy and thus provoked a revolution in the field of legal methodology. Hart's linguist philosophy is featured by the following characteristics: the problem concerning meaning of words actually is about the application of words; there should be an emphasis on the social connections in the application of words and it is therefore an attempt towards 'descriptive sociology'; owing to the open-texture of words, linguist philosophy is a technique of central case; linguist philosophy provides Hart with the basic perspective to address the problem of legal validity. In Hart'opinion, 'validity'is first of all a word and the understanding of the concept depends on the investigation of the social circumstances in which this word is used. Chapter two is shifted to the discussion of Hart's legal conceptualization. Hart argued that, law is a system of rules composed of primary rules and secondary rules, and, the concept of rule is the premise for the understanding of the concept of law. In the analysis of the concept of rule, we acquire a series of terms such as internal aspect, internal point of view, internal statement, etc. All these terms are the basis for the understanding of Hart's concept of law and the comprehension of legal validity. The characteristic of law lies in that it is composed of various rules. According to the different roles they play in society, they can be classified into two groups: primary rules of duty and secondary rules of power conferring. In legal system, the secondary rules, especially rules of recognition are the basis for the statement of legal 'validity': It plays the role of recognizing legal rules. This role is fulfilled by judges via the exertion of free discretion in non-central cases. Chapter three of this paper focuses on the discussion of Hart's concrete opinions about legal validity by combining the method of linguist philosophy with the concept of law as a system of rules. Against the background of the concept of law with the primary and secondary rules at the core and by the investigation of the word 'validity', Hart holds that 'validity'is an internal statement made by people. In the central case, it means people's acceptance of rules of recognition. The problem of validity is the core of legal system and the statement of this has two implications: on the one hand, it is the description of the state of general legal rules after the examination of rules of recognition. They are identified as legal rules and therefore people have to abide by them. On the other hand, it is the embodiment of people's attitude of the acceptance of the rules of recognition. People verify the general rules by using the standards provided by the rules of recognition. The rules of recognition are thus the source of legal validity. The statement of validity is only for the description of the rules in legal system other than the rules of recognition. As for the rules of recognition, there is no such thing as the validity of them. The uncertainty of the rules of recognition leads to the non-central case of legal validity. If this occurs, the free discretion of the courts becomes the source oflegal validity. On the basis of the understanding of the use of the rules of recognition, people can clarify many obscurities concerning the notion of legal validity and these include the difference between legal validity and some relevant concepts. The first one is about efficacy. Efficacy is the external statement of the fact that law is obeyed. Legal validity is irrelevant to the efficacy of rules but it is based on the efficacy of the system. The second concept is existence. The existence of the other rules other than the rules of recognition is the internal statement of its validity but the existence of the rules of recognition is an external statement about facts. The concept of legal validity is certainly related to the relationship between legal validity and morals. Though Hart does not deny the relationship between law and morals, he holds that the legal validity is determined by the rules of recognition, not morals. In the standards of legal validity the concept of value is accepted. Hart's legal validity originates from his morally neutral description of legal theories. From this, Hart believes that the problem of legal validity is a problem inside legal system and the rules of recognition, as the highest rules, are the boundary of legal theory and problems outside them does not fall into the category of legal theory research. In Hart's analysis of concrete questions concerning legal validity, the linguist philosophy and the concept of law as a system of rules are involved. One the one hand, linguist philosophy is the most important part in Hart's legal methodology and it is the basic way of Hart's thinking and provides the basic perspective of how Hart addresses the question of legal validity. Only if we understand Hart's method of linguist philosophy can we be clear about the question of in what sense Hart talks about 'legal validity'. Because according to Hart, 'validity'first exists as a word. What he cares is the application of the word 'validity'. Secondly, if we want to discuss legal validity, we have to know 'what is law'. If we do not have the concept of law in our mind, how can...