I told Titus that I'd have a post coming soon about why Francis Schaeffer is a terrible historian, but that'll have to wait for a bit. I want to finish this law stuff first.
After the battering legal positivism took by the Realists and the Holocaust, H. L. A. Hart stepped in to take a swing at defending it. He argued that Austin's command theory was pathetically simplistic - after all, the law contains a great deal more than "Don't do this, or I'll hurt you" type statements.
Hart begins by contrasting pre-legal primitive societies and complex legal societies. Both types of societies have particular expectations of their members. To remain a member of a particular society, you must accept its particular rules. These are the natural rules of obligation (NROs). Primitive societies, however, only have a small, limited list of NROs that are easily navigated by individuals and enforced by the society. Hart stumbles here and leaves a problem to be discussed later - how NROs are generated in the first place, and why they typically do not require violence to be enforced. He makes a great deal out of the difference between being "obliged" and being "obligation," but I don't think its as satisfying an answer as the Foucault, discourse-based Critial Legal Theorists will offer.
Complex societies, however, are made of many smaller groups, each with their own NROs; for a complex society to remain coherent, certain NROs must be agreed upon to become primary rules of obligation (PROs). These are the rules that apply to all of the smaller groups, whatever other NROs each group may impose upon their members.
Sexual issues can provide examples of both NROS and PROS. Typically, religious groups have rules against adultery. Remaining monogamous and faithful is a natural rule of obligation for many of these groups. It is no, however, a primary rule of obligation. One example of a sexual PRO that our larger, complex society enforces on everyone is a restriction on sex with children.
A formal legal system (FLS) is marked by its ability to identify these PROs through secondary rules of obligations. (SRO). These are the administrative rules that govern the creation of PROs. There are three SROs.
The first is the rule of recognition. (RoR) The RoR describes the proper source of laws in any given complex society - i.e., Canada's Charter of Rights and Freedoms or the United States Constitution.
The second and third SROs are closely related to the RoR, and many argue they are simply sub-sections of recognition. There is the rule of change (RoC) - who has the authority to change the PROs? The other is the rule of adjudication (RoA) - who has the right or responsibility to enforce the PROs?
There is another ambiguity that appears here. How is the RoR itself recognized? All PROs flow from the RoR - so the RoR cannot be a PRO itself. The RoR must first be recognized before it can generate PROs - meaning the RoR is in fact itself an NRO. To remain a member of a particular complex society, you must accept its rule of recognition. Hart is left trapped in circular reasoning.
Hart runs into another problem. A FLS cannot rely on rules alone; situations will continuously arise in courts in which the RoR has not generated a PRO, or in the validity of a PRO is being challenged. These are situations in which rules simply run out. Hart describes this as "open texture" and argues that judges are left to their own discretion in these situations. Hart almost becomes a Holmesian realist here. Hart's problem is that he cannot describe how and why a judge might handle an open texture case in a particular way.
And yes, that's where the name of this blog comes from. Open texture is where all the fun is!
And now, I have to decide: do I actually want to write a post about the Seperation Thesis, or just cut and paste my study notes? Or should I just move on to Dworkin's theory of the settled law? Decisions, decisions.