H. L. A. Hart'ta tanıma kuralı

Abstract

Herbert Lionel Adolphus Hart (1907-1992) is known to be the greatest jurist of the twentieth century because of his contributions to the legal philosophy. As a legal positivist, Hart put forward his own theory of law in his most famous and important work ?The Co54ncept of Law?, challenging Austin and theories that describe the law within the framework of orders. Law is composed of rules according to Hart?s analytic positivism. Legal rules are a kind of social rules, and they are different from habits. Social rules are accepted as a standart that are used to criticize the behavior of others and that of individuals themselves in case not obeyed. Hart names this as an internal point of view. According to Hart, what characterizes the law is not its coerciveness that stipulates sanction, but this internal point of view that leads individuals to obey the rules of law by their own will. Legal rules do not comprise the norms that stipulate sanctions and impose duties only as suggested by the command theories. There are also some norms in a legal system that confers power to people. In this regard, the theories that are trying to describe law within the boundary of obligations only are insufficient and defective.A legal system consists of the union of primary and secondary rules. Legal systems in modern societies include the secondary rules also, though primitive societies have primary ones only. Primary rules define how people should act and what their obligations are. Secondary rules are the ones relating to the primary rules. The secondary rules consist of ?the rules of chance? that regulate the creating, changing and nullification of the legal rules, ?the rules of adjudication? which regulates how to settle the disputes, and ?the rule of recognition?. The most important rule of the secondary rules is the social rule of recognition that is accepted by the officials from the internal point of view. The two necessary conditions for the existence and union of a legal system are the obeyance of the individuals of the primary rules, and the acceptance of the secondary rules by the officials. The rule of recognition determines what the rules are in a legal system and constitutes a criteria of validity. Legal rules take on legal validity if they satisfy the criteria defined in the rule of recognition. According to Hart, the criteria of validity can be based on the social source, as well as it may be defined with rules context. The officials are free to determine the content of the criteria of validity. In case the criteria of validity include moral principles, then it is possible that law is constituted on morality.