User:L E X commons/sandbox

I. Persistent questions
Hart starts off his Concept of Law by positing that although most men can easily and confidently cite examples of law if they are asked to do so, there is an unending theoretical debate in books of what is law itself. A commonly accepted explanation for this is the existence of 'borderline' cases, as opposed to 'clear standard' cases, which do not show all the characteristics we normally expect from law but are considered law nonetheless, e.g. primitive law or international law. Hart however denies that the existence of borderline cases are the problem, because it is on the one hand "quite obvious" why hesitation is felt in these cases (both international law and some forms of primitive law lack a legislature) and it is on the other hand not a specific feature of the term 'law' that we are forced to recognize these borderline cases, as we have to do this for nearly every general term which we use in classifying features of human life and the world we live in (e.g. is a man with hair here and there still bald?).

Hart then contends that the best way to solve the question of "what is law" is to find out what it is about law that has in fact puzzled those who have asked or attempted to answer it. He therefore distinguishes three recurrent issues upon which the speculation about the nature of law has "almost continuously" centred upon. The first two issues arise out of "the most prominent general feature of law at all times and places", namely the fact that its existence means that certain kinds of conduct or no longer optional, but in some sense obligatory. Hart contends that this general feature arises in two forms: either in a legal positivist form (first issue), in which the issue to be considered is how law differs from and how it is related to orders backed by threats, or in a natural law form (second issue), in which the issue to be considered is how a legal obligation differs from and how it is related to a moral obligation. The third main issue then is a more general one, and asks what are rules and what does it mean to say that a rule exists, as both legal positivits and natural law theorists speak of law as containing, if not consisting largely of, rules.

Hart then expands on the third issue. He starts with the example of a mandatory rule, and asks what it means to say that a rule exists here. The account "which we are at first perhaps naturally tempted to give" is to say that a rule exists means that a group of people behave 'as a rule', i.e. generally, in a specified similar way in certain kinds of circumstances. He takes the example of the rule in England that upon entering church, one must take off his or her hat. However, Hart immediately after states that a mere convergence in behaviour is not sufficient: there may be a convergence in behaviour between members of a group but no rule requiring it.