Definition and rule in jurisprudence: a critique of H. L. A. Hart's response to John Austin

Abstract

This thesis is a fundamental re-appraisal of the critique of John Austin by H. L. A. Hart. Because Hart never adequately reconstructs the question that Austin was dealing with and because Hart fails to distinguish between description and definition, he fails to see the strength of Austin's theory.

In the development of his own view Hart's basic concepts are used with a shifting and variable content and he reintroduces many of the confusions which Austin sought to clear away.

Hart's position encourages those who would say that the judge's function is to be amoral, apolitical and to strictly apply the law, even though this is theoretically unsound and historically inexact.

I look at cases dealing with matrimonial violence and taxation to show the creative capacity which the judges have in relation to both common law and statutory rules, and then develop a line of argument to show that judges cannot avoid the two stage process of constructing the rule and then applying it, both of which, contrary to Hart's claims, necessarily involve complex Judgments.

Hart's view of an acceptable natural law position is also confused, and fails to appreciate that Austin only rejected one variant of natural law (the one which Hart seeks to re-establish). When Austin's position is correctly understood it is found to be perfectly compatible with that of Aquinas.

In the final chapter, I develop a view of rules which derives much support from the work of Michael Polanyi, and which tends to support the conclusions of A. W. B. Simpson, to the effect that there can not be authoritative rules in the commn law, and that whilst all are susceptible to change by the judiciary, we cannot tell which will be next.