Hartian jurisprudence

Hartian jurisprudence
a name often given to a system of jurisprudence either directly describing the work of the late H. L. A. Hart or a follower or commentator (usually, although not necessarily, earth-bound). Hart considered the typical view that the lay person might have of the sovereign's orders backed by threats (a form of thinking associated with John Austin) to be inadequate, describing such situations as pre-legal. His concept of law was rule-based, seeing law as the union of primary and secondary rules. Primary rules impose duties, and secondary rules confer powers, whether public or private. The secondary rules are concerned with primary rules and provide for such matters as change and adjudication. Perhaps the most important secondary rule is that which tests whether a primary rule is valid. This secondary rule is called the rule of recognition. This rule can take any form and may be simple or very complex. At bottom, it turns out to be a sociological fact. This analysis of law as a system of rules is often compared and contrasted with Kelsinian jurisprudence.

Collins dictionary of law. . 2001.

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  • jurisprudence — ju·ris·pru·dence /ˌju̇r əs prüd əns/ n [Late Latin jurisprudentia knowledge of or skill in law, from Latin juris, genitive of jus right, law + prudentia wisdom, proficiency] 1 a: a system or body of law in the federal jurisprudence; esp: a body… …   Law dictionary

  • Kelsinian jurisprudence — the school of jurisprudence based on the writings of Hans Kelsen. It is based upon a pure theory of law that attempts to explain law without the detail of any given system and without being polluted by politics or theories of justice. It is based …   Law dictionary

  • command theory — or imperative theory (associated with Jeremy Bentham and John Austin) is based on the notion of commands issued by a sovereign. Bentham did not insist that the sovereign power be single, indivisible and answerable to no one. The habit of… …   Law dictionary

  • imperative theory — command theory or imperative theory (associated with Jeremy Bentham and John Austin) is based on the notion of commands issued by a sovereign. Bentham did not insist that the sovereign power be single, indivisible and answerable to no one. The… …   Law dictionary

  • natural law — n: a body of law or a specific principle of law that is held to be derived from nature and binding upon human society in the absence of or in addition to positive law ◇ While natural law, based on a notion of timeless order, does not receive as… …   Law dictionary

  • open-texture — in jurisprudence describes the phenomenon that legal rules, being a function of language, are similarly subject to constant deferral of meaning. For those subscribing to Hartian jurisprudence, this is explained by accepting that words have a core …   Law dictionary

  • validity — I noun authenticity, authority, correctness, force, forcefulness, genuineness, gravitas, lawfulness, legal force, legality, legitimacy, legitimateness, meritoriousness, pondus, potency, power, puissance, reality, realness, significance, soundness …   Law dictionary

  • primary rules — See Hartian jurisprudence. Collins dictionary of law. W. J. Stewart. 2001 …   Law dictionary

  • rule of recognition — See Hartian jurisprudence. Collins dictionary of law. W. J. Stewart. 2001 …   Law dictionary

  • secondary rules — See Hartian jurisprudence. Collins dictionary of law. W. J. Stewart. 2001 …   Law dictionary

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