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His criticism and discussion, including the discussion of the diversity of legal content, demonstrate the influence of Hart's "rule theory" on Austin's A fatal blow to the "command theory" critique. 1. Diversity of legal content - "obligatory rules" & "authorized rules": In criminal law and some tort laws, Austin's command model can be verified. However, other laws, such as the rules for signing contracts in contract law, the rules for making wills in probate law, and the rules stipulating court jurisdiction in procedural law, etc. These legal rules cannot be covered or analogized by the "command theory" of law. Hart called these rules "authorizing rules" and summarized them into two types: "rules conferring private rights" and "rules conferring public powers."

Hart believes that the rules that grant private rights or public powers are to give the actor the opportunity and conditions to perform a certain behavior, rather than the mandatory requirements that the actor must do or prohibit the behavior; Moreover, violation of such "authorized rules" will only result in the inability of the act to have legal effects, but will not lead to sanctions. In this regard, there is a huge difference between the "authorizing rules" that grant private rights and public powers and the "obligatory rules" such as criminal law and tort law.

2. Diversity of legal sources - taking custom as an example:

Austin's "command theory" of law presupposes that all laws originate from prudent and statutory procedural legislative activities. In other words, “The law must be represented by expressly stipulated rights and obligations. However, the number of implicit rights and obligations far exceeds the expressly stipulated rights and obligations, because no matter how advanced the legislative technology is, it is impossible to combine all rights and obligations. All are included in a list. What’s more, the interest relationships behind rights and obligations are always in flux and development, and it is inevitable to have some omissions.” It is precisely in recognition of this that Hart pointed out Austin’s “command theory of law” using custom as an example. "Fatal flaw.

3. Universality of scope of application:

In Austin's command model, commands are only issued to other people except the person who issued the order, and not to the person who issued the order himself. Not binding. However, by analogy, the contract signed by the contracting party is binding on him even at the time of signing the contract. Hart also elaborates on this, he believes that "we are exercising 'a power' conferred on us by the rules to do so, distinguishing two persons 'within' the offeror, namely a person acting in the capacity of the creator of the obligation , and another person acting in the capacity of a person to be bound. ”

The law is not, like a command, a person who by definition is outside the scope of his command. In essence, there is nothing in legislation that is only directed at others; legislation is self-restraining. The law, in the form of abstract and general norms, enables legislators themselves to enjoy legal rights, perform legal obligations, and be subject to legal constraints like all citizens.

(2) Legal test standards: rules of recognition vs. sovereign

Hart held a negative attitude towards the concept of "sovereign unrestricted by law" discussed by Austin. On this basis, he believed that a new idea was needed, so he proposed a combination of "first-order rules" and "second-order rules". Then, Hart proposed the "rule of recognition" to determine whether these two rules are legal rules.

The "rules of recognition" mentioned by Hart are relatively complex and have not been clearly stated in many legal systems. Instead, it is mainly up to judges and courts and other authorities and institutions to identify whether specific rules are legal. Rules are formed and exist. Hart also proposed the concept of "ultimate rules of recognition", arguing that there is a highest-ranking, final rule of recognition in the system of recognition rules - for example, "the rules formulated by the king in the ancient feudal period were the law", "in The rules laid down by the Queen's Parliament in modern England are law."

(3) The basis for obedience to the law: internal point of view vs. habit of obedience

Hart denies the explanatory power of Austin's "habits of obedience" theory in terms of legal continuity and persistence. . Regarding the discussion of legal continuity, Hart criticized the lack of obedience habits during the succession of ancient feudal kings; and regarding the discussion of legal continuity, Hart criticized the loss of people's obedience habits due to the death of ancient law-makers. Therefore, Hart believed that laws are obeyed based on an "internal perspective" rather than a habit of obedience. The "internal perspective" theory holds that only people's inner concepts of recognizing, accepting, and obeying legal rules from the bottom of their hearts are the basis for people to comply with these legal rules - that is, "should/have an obligation to act/not to act"; and " "Habit of obedience" is only an external manifestation, not an internal concept, that is, "forced action/inaction." Because of these intrinsic viewpoints, the law has gained people's long-term loyalty to it, thus gaining people's compliance and obedience to the law.

2. A new analysis framework: semantic analysis method

The book "The Concept of Law" uses an innovative analysis method - the legal analysis method of ordinary language to launch a new analysis Argument framework.

(1) Vertical analysis framework: contextual examination

In Chapters 3, 5, and 6 of "The Concept of Law", Hart uses the word "law" and its The specific situation of application serves as the longitudinal analysis framework for its discussion. The definition and division of "obligatory rules" and "authorized rules", the proposal of three major rules, namely "recognition rules, change rules, and adjudication rules", and the statement that "law is a combination of first-order rules and second-order rules" Concept elaboration is a vertical contextual grasp of legal "concepts". Hart uses the language of games such as "baseball", "cricket", and "(chess)" to analyze "legal" words and the specific situations in which they are used. The initial game situation is quite simple, which is the "first-order rules" that specify the number of people participating in the game, how the game is played, how points are scored, how it ends, etc. However, as the number of people increases and the situation changes, people can no longer apply the original rules of the game, and there is an urgent need for "second-order rules" that negotiate and recognize the "first-order rules", change them midway, and resolve disputes - "recognize, change, The emergence of "Judge Rules" is to relieve the uncertainty, staticity and invalidity of "first-order rules".

(2) Horizontal analysis framework: word comparison

In "The Concept of Law", Hart uses the connection and difference between "law" and other words that are easily confused and implicated. , such as "command", "morality", "justice", etc., as the horizontal analysis framework for its discussion. Through comparative analysis of daily usage and conceptual semantic analysis of related words, readers can further deepen their understanding of legal "concepts" from a horizontal perspective by comparing related words. Analyze the elements and structure of language, examine the etymology and context of words and concepts, it is easier to confuse the connections and differences between words, rather than directly using the definition method, so that the philosophical method of semantic analysis can be fully demonstrated, and it can help alleviate The situation of "overflow of definitions" in the discussion of legal issues.

3. The historical background, ideological basis and knowledge system of Hart’s “rule theory”

(1) The historical background of Hart’s “rule theory”

Hart's "rules theory" originated from a period when modern countries and societies had given birth to a relatively mature and complete modern legal system, and the advanced "rule of law concept" had replaced the "rule of man thought" and was widely accepted by the public citizens and generally practiced in society. .

(2) The ideological basis of Hart’s “rule theory”

As mentioned above, the “rule of law concept” that has been deeply rooted in the hearts of the people has become an important ideological weapon for social governance and social control. Hart emphasizes the social nature of law. Law produces, exists, and coordinates all aspects of social life, and even the "ultimate recognition rules" themselves are a social fact. Hart also emphasizes the diversity of the social functions of law. The primary and secondary relationship between "authorizing rules" and "obligatory rules" reveals that the main social function of law is to guide and govern social activities, rather than top-down political coercion.

(3) The knowledge system of Hart’s “rule theory”

1. The rise of sociology:

During Hart’s period, sociology began to rise. The book "The Concept of Law" also comprehensively uses many research methods from sociology. Therefore, Hart regards law as a kind of social control and social governance, emphasizing the social functionality of law.

2. Semantic analytic philosophy:

An important feature of modern philosophy is its shift to the analysis and understanding of language, and semantic analytic philosophy is the most important component of it, with Hart The Oxford School represented by the "School of Ordinary Language Analysis" is the most important school among them. Therefore, Hart cleverly used semantic analysis methods in "The Concept of Law" to study the concepts and basic issues of law.

4. Conclusion

Although, since then there have been a number of diversified laws like Dworkin's

laws - "obligatory rules" amp; "Delegating rule": In criminal law and some tort law, Austin's command model can be verified. However, other laws, such as the rules for signing contracts in contract law, the rules for making wills in probate law, and the rules stipulating court jurisdiction in procedural law, etc. These legal rules cannot be covered or analogized by the "command theory" of law. Hart called these rules "authorizing rules" and summarized them into two types: "rules conferring private rights" and "rules conferring public powers."

Hart believes that the rules that grant private rights or public powers are to give the actor the opportunity and conditions to perform a certain behavior, rather than the mandatory requirements that the actor must do or prohibit the behavior; Moreover, violation of such "authorized rules" will only result in the inability of the act to have legal effects, but will not lead to sanctions. In this regard, there is a huge difference between the "authorizing rules" that grant private rights and public powers and the "obligatory rules" such as criminal law and tort law.

2. Diversity of legal sources - taking custom as an example:

Austin's "command theory" of law presupposes that all laws originate from prudent, statutory procedural legislative activities. In other words, “Law must be characterized by expressly stipulated rights and obligations. However, the number of implicit rights and obligations far exceeds the expressly stipulated rights and obligations, because no matter how advanced the legislative technology is, it is impossible to combine all rights and obligations. All are included in a list. What's more, the interest relationships behind rights and obligations are always in flux and development, and it is inevitable to have some omissions." It is precisely in recognizing this that Hart pointed out Austin's "command theory of law" using custom as an example. "Fatal flaw.

3. Universality of scope of application:

In Austin's command model, commands are only issued to other people except the person who issued the order, and not to the person who issued the order himself. Not binding. However, by analogy, the contract signed by the contracting party is binding on him even at the time of signing the contract.

Hart also elaborates on this, he believes that "we are exercising 'a power' conferred on us by the rules to do so, distinguishing two persons 'within' the offeror, namely a person acting in the capacity of the creator of the obligation , and another person acting in the capacity of a person to be bound. ”

The law is not, like a command, a person who by definition is outside the scope of his command. In essence, there is nothing in legislation that is only directed at others; legislation is self-restraining. The law, in the form of abstract and general norms, enables legislators themselves to enjoy legal rights, perform legal obligations, and be subject to legal constraints like all citizens.

(2) Legal test standards: rules of recognition vs. sovereign

Hart held a negative attitude towards the concept of "sovereign unrestricted by law" discussed by Austin. On this basis, he believed that a new idea was needed, so he proposed a combination of "first-order rules" and "second-order rules". Then, Hart proposed the "rule of recognition" to determine whether these two rules are legal rules.

The "rules of recognition" mentioned by Hart are relatively complex and have not been clearly stated in many legal systems. Instead, it is mainly up to judges and courts and other authorities and institutions to identify whether specific rules are legal. Rules are formed and exist. Hart also proposed the concept of "ultimate rules of recognition", arguing that there is a highest-ranking, final rule of recognition in the system of recognition rules - for example, "the rules formulated by the king in the ancient feudal period were the law", "in The rules laid down by the Queen's Parliament in modern England are law."

(3) The basis for obedience to the law: internal point of view vs. habit of obedience

Hart denies the explanatory power of Austin's "habits of obedience" theory in terms of legal continuity and persistence. . Regarding the discussion of legal continuity, Hart criticized the lack of obedience habits during the succession of ancient feudal kings; and regarding the discussion of legal continuity, Hart criticized the loss of people's obedience habits due to the death of ancient law-makers. Therefore, Hart believed that laws are obeyed based on an "internal perspective" rather than a habit of obedience. The "internal perspective" theory holds that only people's inner concepts of recognizing, accepting, and obeying legal rules from the bottom of their hearts are the basis for people to comply with these legal rules - that is, "should/have an obligation to act/not to act"; and " "Habit of obedience" is only an external manifestation, not an internal concept, that is, "forced action/inaction." Because of these intrinsic viewpoints, the law has gained people's long-term loyalty to it, thus gaining people's compliance and obedience to the law.

2. A new analysis framework: semantic analysis method

The book "The Concept of Law" uses an innovative analysis method - the legal analysis method of ordinary language to launch a new analysis Argument framework.

(1) Vertical analysis framework: contextual examination

In Chapters 3, 5, and 6 of "The Concept of Law", Hart uses the word "law" and its The specific situation of application serves as the longitudinal analysis framework for its discussion. The definition and division of "obligatory rules" and "authorized rules", the proposal of three major rules, namely "recognition rules, change rules, and adjudication rules", and the statement that "law is a combination of first-order rules and second-order rules" Concept elaboration is a vertical contextual grasp of legal "concepts". Hart uses the language of games such as "baseball", "cricket", and "(chess)" to analyze "legal" words and the specific situations in which they are used. The initial game situation is quite simple, which is the "first-order rules" that specify the number of people participating in the game, how the game is played, how points are scored, how it ends, etc. However, as the number of people increases and the situation changes, people can no longer apply the original rules of the game, and there is an urgent need for "second-order rules" that negotiate and recognize the "first-order rules", change them midway, and resolve disputes - "recognize, change, The emergence of "Judge Rules" is to relieve the uncertainty, staticity and invalidity of "first-order rules".

(2) Horizontal analysis framework: word comparison

In "The Concept of Law", Hart uses the connection and difference between "law" and other words that are easily confused and implicated. , such as "command", "morality", "justice", etc., as the horizontal analysis framework for its discussion.

Through comparative analysis of daily usage and conceptual semantic analysis of related words, readers can further deepen their understanding of legal "concepts" from a horizontal perspective by comparing related words. Analyze the elements and structure of language, examine the etymology and context of words and concepts, it is easier to confuse the connections and differences between words, rather than directly using the definition method, so that the philosophical method of semantic analysis can be fully demonstrated, and it can help alleviate The situation of "overflow of definitions" in the discussion of legal issues.

3. The historical background, ideological basis and knowledge system of Hart’s “rule theory”

(1) The historical background of Hart’s “rule theory”

Hart's "rules theory" originated from a period when modern countries and societies had given birth to a relatively mature and complete modern legal system, and the advanced "rule of law concept" had replaced the "rule of man thought" and was widely accepted by the public citizens and generally practiced in society. .

(2) The ideological basis of Hart’s “rule theory”

As mentioned above, the “rule of law concept” that has been deeply rooted in the hearts of the people has become an important ideological weapon for social governance and social control. Hart emphasizes the social nature of law. Law produces, exists, and coordinates all aspects of social life, and even the "ultimate recognition rules" themselves are a social fact. Hart also emphasizes the diversity of the social functions of law. The primary and secondary relationship between "authorizing rules" and "obligatory rules" reveals that the main social function of law is to guide and govern social activities, rather than top-down political coercion.

(3) The knowledge system of Hart’s “rule theory”

1. The rise of sociology:

During Hart’s period, sociology began to rise. The book "The Concept of Law" also comprehensively uses many research methods from sociology. Therefore, Hart regards law as a kind of social control and social governance, emphasizing the social functionality of law.

2. Semantic analytic philosophy:

An important feature of modern philosophy is its shift to the analysis and understanding of language, and semantic analytic philosophy is the most important component of it, with Hart The Oxford School represented by the "School of Ordinary Language Analysis" is the most important school among them. Therefore, Hart cleverly used semantic analysis methods in "The Concept of Law" to study the concepts and basic issues of law.

IV. Conclusion

Although a group of jurists like Dworkin have since criticized and revised Hart’s theory, as Hart himself said , the book "The Concept of Law" does not intend to propose a clear and authoritative legal concept, but aims to promote the reform and development of legal theory by providing an innovative analysis method and a deeper understanding path, which is also It is this masterpiece that deserves to be celebrated