Justice and Good: Hart's Concept and Rawls' Theory
The concept of what justice is and what constitutes a good life vary from jurist to jurist and thinker to thinker. HLA Hart is one of the most well known jurists to come up with a concept of law that was widely acclaimed but was aggressively challenged as well. In hid masterpiece, The Concept of Law, Hart recognizes the legal system as the "combination of primary rules of obligation with the secondary rules of recognition, change and adjudication" (Hart, p. 98). Hart maintains that law is a combination of primary and secondary rules which serve as "not only the heart of a legal system but a most powerful tool for the analysis of much that has puzzled both the jurist and the political theorist" (Hart, p. 98). Hart is of the view that law as we exercise it is the sum or the system of rules. He takes a rather linguistic approach towards the explanation of the rules, laws, legal system and the concept of justice. He believes that the various sets of rules represent the term law and these rules are understood and practiced and represented by words. The specific usage of language determines the kind of social functions that these rules are suppose to perform. Some rules that are though legal in nature perform the social function of impo
To Hart, it is not important to question the morality of a rule: "No rule can be guaranteed against breach or repudiation; for it is never psychologically or physically impossible for human beings to break or repudiate them; and if enough do so for long enough, then the rules will cease to exist." (p. 146) He further adds that all basic rules are influenced by moral standards: "... [I]t cannot be seriously disputed that the development of law, at all times and places, has in fact been profoundly influenced both by conventional morality and ideals of particular social groups, and also by forms of enlightened moral criticism urged by individuals, whose moral horizon has transcended the morality currently accepted". (p. 185) Thus justice is not connected with morality exactly but is not devoid of the same as well. Hart through his book puts forth a unique concept concerning the way the legal system as well as the concept of justice operate in the contemporary world where laws are comprehended and rules are obeyed not only based on moral grounds but also have other factors playing their vital roles. However in order for people to choose a social contract, they must be aware of their positions and identities. But this knowledge is denied to them in the original position and hence Rawls theory gets buried down under heaps of ambiguities and unexplained concepts. But if details can be ignored, we can safely say that Rawls theory of justice is based on fairness which transcends color, race and social status. The concept is further explained by the author with the help of the difference of language and procedures and rules of the two kinds of law. Rule-based laws are based on rules that are in turn based on the medium of communication, in our case the language of English. Case laws are dependent more on the circumstantial evidence as well as on the type of situation that exists while solving a certain case. However, rule-based law is far more rigid, lacks openness and is inexorable for the reason that although "every rule may be doubtful at some points, it is indeed a necessary condition of a legal system existing,
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Approximate Word count = 1433
Approximate Pages = 6 (250 words per page double spaced)
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