SOURCE:

Faculty: Arts
Department: Department Of Philosophy

CONTRIBUTORS:

Ogba, S. A;
Mbaegbu, C;

ABSTRACT:

Hart falls under the category of the legal positivists that approach the study of law from the perspectives of looking at law as a system of rules or procedures permissible by a given legal system. Law for Hart is essentially a system of rules, and a legal system is a union of primary and secondary rules. However, social rules grow out of habits while legal rules in turn grow out of social rules. In what follows therefore, this dissertation begins by setting out Hart’s main contributions to the conceptual understanding of the rule of law and its significance. The thrust of my argument was that in some formulations, Hart’s main approach implied a more contextual and indeed a functional approach than many writers on him would understand. Going by the contents of Hart’s concept of law, strict application of such notion to the Nigeria legal system would have some negative impacts on the culture, religion and union of the country, since law is a binding force that takes into cognizance the context of the cultural settings and right reason. The denial of necessary connection between law and morality with each standing on its own, raises a serious debate because to prove the independent existence of law from morality may eventually lead to certain categorical pitfalls. The question of rightness and wrongness of law to a large extent is based on the inseparability of law and morality. Even though some of the arguments against certain moral issues are based on natural law doctrines, it is argued in this dissertation that unnaturalness is not tantamount to wrongness. Therefore, right reason should be applied in legal enforcement of morality. This research discovers that H.L.A Hart’s Concept of Law is rooted in the notion of a rule of recognitionwhich deals with two perspectives of rule as being both a fundamental secondary rule within a legal system and an important social rule within a legal community. Legal principles are therefore, part of law, and we must reject the positivists’ first tenet that the law of a community is distinguished from other social standards by some test in the form of a master-rule. Hence, law and morality should not be separated as advocated by earlier positivists, rather, law and morality should be kept side by side and morality should always be employed in judging law.This dissertation would contribute to the body of philosophical study by establishing the inseparability of law and morality. In all, the notion of law in Hart’s philosophy would be argued as plausible although with limitations. Hart’s understanding of law is likely to proffer a more pragmatic solution, if his theory on the internal point of view is applied to the Nigerian legal and political system.