I am doing a presentation in a few weeks time on Hart's argument from political freedom, as found in
his Punishment and Responsibility(Oxford edition). I still don't capture the exact bearing of this
argument. Could you help me?
Hart's position on politics is that it only determines what the law when there is social warrant. The law
is, for Hart, founded in social considerations. Law enforcement and punishment, in fact the very
existence of the law have the function of maintaining a peaceful society.
The sort of social warrant for government action that Hart uses as an example in Chapter III is social
opinion which comes to light in the formation of associations, such as those for the abolition of the
death penalty. In response to these associations, select committees are set up and investigations are
made by the Royal Commission and Gallup polls are taken. While a poll will not reflect party politics,
the select committees do because they reflect the number of seats each party has in the Commons.
However, as you will see in footnote 3, recommendations can go ahead even if one party completely
withdraws from the committee, and in this particular case it was the majority political party. So the
Government's own consideration would not figure in the recommendation. So this is one way in which
statutory law is free from Government control. Also, the nature of the considerations which resulted in
the Homicide Act, were not political but moral.
Another reason the Homicide Act may be taken to be non-political is that it didn't come about as a
result of members of Parliament acting as delegates for the people who voted for them, but rather as
a result of personal inclinations of the members of Parliament. Although the initial warrant for
Government action was social opinion, it was the relaxation of party loyalty that led to a vote in favour
of the abolition of the death penalty. So the Act is free from party politics. Social warrant is only
needed to justify the Government taking action. There is no claim that statutory law need reflect
Although in the particular case of the death penalty, party discipline was relaxed, so that members of
the Commons could vote freely, Hart can't and doesn't claim that this is always the case with statutory
law, so this isn't sufficient to conclude that the law is always free from party politics. However, Hart's
position is not that the law is completely free from political intervention.
However, the theme of the book is that law is influenced by non-political considerations. The idea of
intention is influenced by philosophical debate on the nature of action. Responsibility and mens rea
are considered in the light of psychological theory. Conceptual analysis, rather than politics, is shown
to have more influence when the courts are assessing individual cases.
Further, Hart claims that judges are able to make their own law, as in the case of the McNaughton
Rules which were made by judges, and even though the Mental Health Act provides different criteria
for a defence of insanity, the McNaughton Rules can still be used. The Mental Health Act has ousted
the Rules from effect. Again it is in the particular case that statutory law might not be used.