| Phi 213 Spring 2016 |
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Section 1 of ch. 6 will occupy most of our time. Even so, it has too many topics for us to discuss them all. You should think through all of the following ideas, but our discussion will focus of the last two from the second group of three (i.e., the idea of efficacy and the question of the validity of the ultimate rule of recognition, which I’ve marked by italics).
• One topic is the hierarchical structure of the law. The key ideas here are
• the criteria for identifying the law (pp. 100f),
• the difference between subordination and derivation (p. 101), and
• the difference between a supreme criterion and an ultimate rule of recognition (pp. 105f).
• A second topic is the distinction between internal and external statements as this applies
• to judgments of validity (pp. 102f),
• to the relation between efficacy and legal validity (pp. 103f), and
• to the status of an ultimate rule of recognition (pp. 107-10).
In this section, Hart often has Hans Kelsen in mind, adopting and modifying some of his ideas and criticizing others; the notes for the section (pp. 292-295) present Hart’s account of the relation between his views and Kelsen’s.
Section 2 has two main topics:
• The first returns to questions about the status of a constitution (which Hart addressed in another way in §3 of ch. 4), addressing concerns about whether a rule of recognition is law (pp. 111f).
• The second topic (which begins on p. 112) is a consideration of the conditions for the existence of a legal system. It is summarized at the end of the section (pp. 116f) in a way that recalls Hart’s concluding point in §1 of ch. 4 (pp. 60f).
Section 3 isn’t part of your assignment, but you might want to think about the first of Hart’s extended examples (p. 119 top—the first paragraph of §3, pp. 117f, indicates what it is an example of). His description of this example recalls his views on so-called “grudge informer” cases: the question arose in postwar Germany whether certain sorts of voluntary cooperation with the Nazi legal system should be treated as cases of complicity in illegal imprisonment. Hart will discuss these cases explicitly at the end of ch. 9 (pp. 208-212) in connection with his views on the relation between law and morality, and we will be discussing this material in class when we look at ch. 9.