Exploring The Legislative Thoughts In Hart's Rule Theory

Hart will combine the philosophy of language and philosophy of law perfect,using ordinary language analysis method,establish the descriptive jurisprudence rules of autonomy by criticizing Austin's legal order theory, reveals the realistic "rule skeptics" rules on prediction error theory, Austin pointed out that "the law is the Sovereign of the the theory cannot explain the legislative legitimacy, legislative authority and legal continuity of persistent problems.Hart believed that "the key of legal science" lies in the combination of the primary rules of obligation of science and the secondary rules of granting power. The primary rule is mainly to regulate people's behavior and specific changes in some areas, the group or the official representative as the main body of legislation to set up a set of compulsory criminal law sense rules on violence, theft and other acts of restrictions, in addition, also exist in private civil law obligations set narrow legislative behavior. However, legal control of simple society is composed of only primary rules is uncertain, stationary and invalid defects, accordingly, Hart introduced the secondary rules of remedy. The rule of recognition is the criterion of validity of rules and the source of legitimacy of legislation. The change of rules gives the legislative power, and defines the procedures that must be followed. It is a supplement to the legislation that the rules of the law are authorized to some people, and the authority to judge whether the rules are violated.As the language and language of the composition rules have the characteristics of the open structure and the uncertainty of the legislative objectives, there exists the"Core" and "Penumbra" in the application of the rules. In the core of the meaning of the rules, the concept, the scope and the scope of the legal norms to be expressed are certain and beyond dispute. And the penumbra of the rules, the judge has limited legislative power, through the judicial law to fill the gaps in the legislation, the legislative purpose of the legislative discretion.There is an important significance implied Hart rule in the theory of the legislative thought, the validity of the law lies in the recognition of the rule of recognition, and the rule of recognition is a kind of social practice, to accept the people hold the internal point of view of its existence, such analytical positivism by legislation "will theory" to the social dimension of legislation. At the same time, Hart pointed out that in the process of applicable rules of judge has discretion to a certain extent,a proper balance of stability and change of legislation, and to clarify the relationship between the legislative and judicial power of the two.