Critique of Hart’s Concept of Law in Samoa
Date
Authors
Fa’amatuainu, Bridget
Supervisor
Item type
Journal Article
Degree name
Journal Title
Journal ISSN
Volume Title
Publisher
Canterbury Law Review Trust
Abstract
Hart’s “Concept of Law” has gained widespread recognition in legal philosophy by proposing that a legal system is best understood as a combination of primary rules that impose obligations and secondary rules that grant the authority to create, modify, and interpret those primary rules. One aspect in Hart’s concept concerns the prelegal or primitive system, consisting of a society governed solely by primary rules of conduct without secondary rules. Thus, it proceeds to assert that such a system exists in a small, stable community bound by shared beliefs and kinship. This article illustrates that upon closer scrutiny within legally intricate and bijural contexts – such as the case of Samoa, where both primary and secondary rules co-exist – the argument proves to be fundamentally flawed. Moreover, this critique highlights the limitations in the standard application of Hart’s Concept of Law in other post-colonial contexts, including Aotearoa New Zealand and South Africa. The article further argues that more critical and nuanced perspectives are needed to examine the legal reality of Hart’s theory in modern post- colonial contexts.Description
Keywords
1801 Law, 48 Law and legal studies
Source
Canterbury Law Review, ISSN: 0112-0581 (Print); 0112-0581 (Online), 31(1), 67-96.
DOI
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This is the Author's Accepted Manuscript of an article in the Canterbury Law Review © Canterbury Law Review Trust, hosted by The University of Canterbury School of Law.