Hart's The Concept of Law Chapter Summaries

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ALBOS, SPENCER M. 2004-43654

PERSISTENT QUESTIONS (A Summary of Chapter 1 of H.L.A. Hart’s The Concept of Law)

I.

Perplexities of Legal Theory “What is Law?” This question, according to Hart, is among the questions that

have been persistently asked in human society. Even if we consider the study of the legal theory for the last one and a half century, and despite the classical and medieval speculation about the 'nature' of law, this situation is not paralleled in any other academic discipline. Hart notes that currently, there are some assertions and denials concerning the nature of law that are strange and paradoxical (i.e. self-contradictory): “'What officials do about disputes is ... the law itself'; 'The prophecies of what the courts will do ... are what I mean by the law'; Statutes are 'sources of Law ... not parts of the Law itself'; 'One shall not steal; if somebody steals he shall be punished.' 'Law is the primary norm which stipulates the sanction.'” Gladly, in almost every country of the world, there are legal systems that are broadly similar in structure. Their important points of similarity (or salient features) include: a) Rules that forbid and enjoin certain types of behavior under penalty; b) Rules that require compensation for those who suffered injury; c) Rules that specify the details on arrangements that either confer rights or create obligations; d) Courts determine what the rules are and when they have been broken, and fix the punishment and compensation to be paid; and e) Legislature makes new laws and abolishes old ones. Hart is of the opinion that one reason why the question “What is law?” persists is the existence of doubtful cases such as primitive law and international law. These two “laws” lack some of the salient features of a municipal law as enumerated above such as a legislature, a court, and a centrally organized system of sanctions. Another reason of the persistence of the question is the recognition of both the clear standard cases and the challengeable borderline cases. The difference between these two is

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sometimes just a matter of degree, but sometimes the difference consists of a complex of concomitant distinct elements. Hart urges that we should not just repeat the “skeleton account” of the salient features of a municipal legal system in answering the question "What is law?" This is because there are arrangements in social life which, although they have some of the enumerated salient features, they lack the others. Hart explained that those who are most perplexed by the question have not forgotten the familiar facts which this skeleton answer offers them. “The deep perplexity which has kept alive the question, is not ignorance or forgetfulness or inability to recognize the phenomena to which the word 'law' commonly refers”, he said. He suggests that the best course is to defer giving any answer to the question until we have found out what law is really about. II.

Three Recurrent Issues There are three (3) recurrent issues or themes that are a constant focus of

argument and counter-argument about the nature of law. In this chapter, Hart aims to distinguish these three recurrent issues and show why they come together in the form of a request for a definition of law or an answer to the question "What is law?" These issues are: 1. How does law differ from, and how is it related to orders backed by threats? 2. How does legal obligation differ from, and how is it related to, moral obligations? 3. What are rules and to what extent is law an affair of rules? With regard to the first issue, Hart explains that the most prominent general feature of law at all times and places is that it makes certain kinds of human conduct no longer optional but in obligatory. He quoted Austin in saying that in a situation where one person gives another an order backed by threats, and obliges him to comply (such as when a gunman orders his victim to hand over his purse and threatens to shoot if he refuses), we have the essence of law, or at least “the key to the science of jurisprudence.” For Hart, criminal laws may appear to be the gunman situation writ large. The only difference is that criminal laws are orders 1 addressed generally to a 1 Kelsen defines “order” as a system of norms that is formed by norms whose validity may be

traced back to one and the same “basic” norm (“basic” norm is defined as the norm the validity of which cannot be derived from a superior norm). [Hans Kelsen and the “Pure Theory”, p. 385]

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group which customarily obeys such orders. Hart however observes that the reduction of the complex phenomena of law to this simple element may distort and cause confusion. He asks, "How then do law and legal obligation differ from, and how are they related to, orders backed by threats? Regarding the second issue, Hart explains that moral rules impose obligations and withdraw certain areas of conduct from the free option of the individual to do as he likes. For him, a legal system contains both the elements of orders backed by threats, and certain aspects of morality.2 Law and morals share a vocabulary. There are both legal and moral obligations, duties, and rights. All municipal legal systems also have in common certain fundamental moral requirements. For example, killing and the wanton use of violence are commonly prohibited among various countries. Furthermore, the idea of justice seems to unite both fields. As regards the third issue, Hart explains that a legal system consists, in general, of rules. He observes that those who have understood law in the notion of orders backed by threats and in its relation to morality or justice, speak of law as containing largely of rules. However, there are dissatisfaction, confusion, and uncertainty on this notion on the nature of law. It is difficult to determine what rules are and what it means to say that a rule exists. This is because there are different types of rules. For example, there are rules of etiquette and of language, rules of games and clubs. There are rules that mandate a particular course of action. There are also rules that merely prescribe procedures, formalities, and conditions. Rules may originate in different ways and may have very different relationships to the conduct with which they are concerned. Hart notes the fact that mere convergence in behavior between members of a social group may exist does not always mean that there is a rule requiring it. The words “must,” “should,” and “ought to” indicate the presence of a rule requiring certain conduct. Hart also distinguishes between rules (especially legal rules) and habits. For him, the crucial difference is that in case of rules, deviations from certain types of behavior will probably be met with hostile reaction, and in the case of legal rules be punished by officials.3 In the case of habits, deviations are neither met with punishment nor reproof.

2 Kelsen, on the other hand, is of the opinion that “law is always positive law...independent of morality and similar norm systems.” [Hans Kelsen and the “Pure Theory”, p. 387]

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For Hart, the predictability of punishment or sanction 4 is the important aspect of legal rules. III.

Definition “Definition”5, according to Hart, is “primarily a matter of drawing lines or

distinguishing between one kind of thing and another, which language marks off by a separate word.” He explains further that the necessity for a definition is often felt by those who cannot state or explain the distinctions which divide one kind of thing from another. For example, a triangle may be defined as a “three-sided rectilinear figure”. An elephant may be defined as a “quadruped distinguished from others by its possession of a thick skin, tusks, and trunk”. This form of definition is called per genus et differentiam. In Hart’s opinion, this form of definition is difficult to apply to the concept of law because there is no wider family of things or genus, about the character of law which we are clear, and within which the definition locates what it defines. In particular, he said that there is no familiar well understood general category of which law is a member. Defining law becomes even more difficult because of the borderline cases such as international law and primitive law. Hart explains that while there are many 3 On what makes rule a rule in the legal sense, Bobbio cites Kelsen who says that “a rule is a

legal rule not because its efficacy is secured by another rule providing for a sanction; a rule is a rule because it provides for a sanction.” [Bobbio, N. (1965). The Monist, p. 322]

Bobbio distinguishes between two principal types of sanctions: Those that make it possible for the observance of a rule to be a fit means, and transgression to be an unfit means, for reaching the desired goal; b) Those which make it possible for the observance of the rule to be a fit means and the transgression an unfit means, in avoiding the goal which is not desired. [Bobbio, N. (1965). The Monist, p. 337] 4

5 According to Robinson (1965), there are several species of definition. These include: real

definition, nominal definition, extensive definition, ostensive definition, analytic definition, synthetic definition, equational definition, descriptive definition, operational definition, genetic definition, definition in use, denotative definition, connotative definition, implicit definition, coordinating definition, persuasive definition, successive definition, and definition by description. [Robinson R. (1965). Definition. Oxford: Clarendon Press. p. 7]

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other kinds of definition besides the traditional simple form discussed, there is no definition concise enough that could provide a satisfactory answer to the question, “What is law?”6 This is because the underlying issues are too different from each other and too fundamental to be capable of this sort of resolution. Hart concluded by saying that the purpose of his book, The Concept of Law, is not to provide a definition of law, but to “advance legal theory by providing an improved analysis of the distinctive structure of a municipal legal system and a better understanding of the resemblances and differences between law, coercion, and morality, as types of social phenomena.” Illustration:

Conflicting theories of Austin and Hart on the concept of law.7

6 Even Robinson agrees admits that indefinability is constantly being asserted. In his book

Definition, he even quotes A.C. Ewing who said that “it is logically necessary that some things should be indefinable.” [Robinson R. (1965). Definition. Oxford: Clarendon Press. p. 4]

7 Source: Maryam Akram. The Concept of Law: Preface (2016) (accessed 05 January 2016)

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ALBOS, SPENCER M. 2004-43654

LAWS, COMMANDS, AND ORDERS (A Summary of Chapter 2 of H.L.A. Hart’s The Concept of Law)

I.

Varieties of Imperatives Hart begins his discussion by praising Austin’s work, the Province of

Jurisprudence, as the “clearest and the most thorough attempt to analyze the concept of law in terms of the … elements of commands and habits.” In this chapter, Hart would like to criticize a theory that is substantively similar to Austin’s doctrine but is different from it at certain points. Hart explains that in various situations of social life, if a person wishes that another person do or refrain from doing something, and that wish is accompanied by an intention that the person addressed should conform to the wish, then the special linguistic form of “imperative mood” is used. The social situations in which it is used are diverse but they shade into each other. The most recurrent types are the request, plea, and warning. The most appropriate illustration of the concept discussed above is the hypothetical scenario in which a gunman demands a bank clerk to hand over cash at gunpoint. Through this example, Hart distinguishes between different imperatives by explaining that the gunman is not “asking” “pleading” nor “requesting” the bank clerk to hand over the money; rather, he is “ordering” him to do so. Although it can be assumed that the gunman ordered the clerk to hand over the money, it would be difficult to regard this as “giving an order” because “giving an order” suggests some right or authority, which is not present in the given situation. The bank clerk is forced to hand over the money because the gunman has a gun pointing to his face and not because he is the clerk’s superior or boss. In essence, a legal obligation or a duty is different from being obliged or forced to do something. In the given scenario it will be misleading to say that he is “giving an order” to the clerk.

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Hart next defines “orders backed by threats” or “coercive orders” as orders that are supported only by threats. “Obedience” or “obey” means compliance with the said orders. Hart also distinguishes “commands” from “orders backed by threats.” “Command” implies that there is a relatively stable hierarchal society in which the commander occupies a position of preeminence. It means exercising authority 8 over men, not power to inflict harm. It is primarily an appeal not to fear but to respect for authority. On the other hand, an “order backed by threats” requires compliance not because of respect but solely due to the fear of threat of punishment or sanctions. Hart concluded that the idea of a command and its strong connection and respect for authority is much closer to law than the gunman’s order backed by threats, which Austin misleadingly calls a command. II.

Law as Coercive Orders

Hart explained in this part three (3) features of law namely, generality, persistence, and being generally obeyed. A. Generality: Hart begins by saying that in a complex modern society, there are occasions when an official, such as a police, give orders to an individual face to face. But this scenario could not be the standard way by which the law functions because the society lacks the resources to do so. Hence, the standard form of law is made general in two ways: a. It indicates a general type of conduct, and b. It is applicable to a general class of persons who are expected to comply with it.

Rees distinguishes between the following kinds of authority:Authority of a moral kind, where a rule obliges a person to act in virtue of its being accepted by his own conscience; b) Authority of a customary kind, where a rule obliges him to act in virtue of his desire not to incur the disapproval of some other person or persons; and c) Authority of a coercive kind, where a rule obliges a person to act in virtue of its being enforced, usually with a penalty attached. This authority has to sub-species, namely: a. Authority of the kind where the rule is usually enforced by a coercive power, but not by a supreme coercive power; and b. Legal authority in the strict sense. [Bentham, Austin and Classical English Positivism, p. 314] 8

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For Hart, he individualized face-to-face giving of directions by an official is only secondary. If the primary general directions are not obeyed by an individual, it is then that the officials may draw his attention to them and demand compliance. The disobedience may then be officially recorded and the threatened punishment may be imposed by a court. The statement that legal control is primarily general means that the laws extend to all persons within its territorial boundaries, except when a narrower class is indicated as exempt from their application. Hart considers Austin’s idea of laws as being “addressed” to classes of persons misleading because ordering people to do things is a form of communication and entails “addressing” but making laws does not. Making laws differ from ordering people to do things. Also, laws are complete when they are made. Hence, for Hart, although promulgation (the giving of notice to the general public) is desirable, it does not affect the validity of the law because they are in a finished form whether or not they are conveyed to the public. (B) Persistent characteristic of law: In the gunman situation previously mentioned, Hart explains that although it is true that there is a sense in which the gunman has an ascendancy or superiority over the bank clerk, it is due to his temporary ability to make a threat. There is no other form of relationship of superiority and inferiority between the two men except this short-lived coercive one. The gunman does not issue to the bank clerk “standing orders” to be followed time after time by classes of persons. On the other hand, laws preeminently have this “standing” or “persistent” characteristic. This means that there is a general belief on those to whom the general orders apply that disobedience will be followed by the execution of the threat, from the time of promulgation until the order is withdrawn or cancelled. Hart emphasizes that it is this continuing belief in the consequences of disobedience that keep the original orders alive or “standing.” (C) General Habit of obedience: Hart explains that this habit means that most of the orders must be more often obeyed than disobeyed by most of those who are affected by them. Hart calls this, as does Austin, the “general habit of obedience.” In his opinion, this is the crucial distinction between laws and the

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case of the gunman’s order. The also emphasized that the notion of general habitual obedience to general orders backed by threats must be enough to reproduce the settled character and continuity that legal systems possess. Hart also explains that although criminal laws closely resemble orders backed by threats, other laws do not. Examples of these laws include those governing contracts and wills. Moreover, the law has features of supremacy and independence within its territory that cannot be reproduced in Austin’s simple model. These features are simple yet essential. For example, in some countries, there are various bodies such as local authorities or officials that give out orders in return for which they receive habitual obedience, but this body is subordinate to the head of the state9 and thus, they may be described as an agent of the government. The government is also independent because it does not obey to the government of any other state. Hart concluded by saying that “wherever there is a legal system, there must be some persons or body of persons issuing general orders backed by threats which are generally obeyed, and it must be generally believed that these threats are likely to be implemented in the event of disobedience. Furthermore, this person or body must be internally supreme and externally independent.”

Rees enumerates three uses or definitions of the word “state”:“State” has meant “a politically organized society”; 2. “State” could also mean “a politically organized society in so far as it is ideally organized.” 3. “State” has also meant “government as an institution.” [Rees, W.J. The Theory of Sovereignty Restated, p. 507] 9

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ALBOS, SPENCER M. 2004-43654

THE VARIETY OF LAWS (A Summary of Chapter 3 of H.L.A. Hart’s The Concept of Law) H.L.A. Hart presents in this chapter his criticisms on what laws would be like if the various kinds of laws in the modern legal system are compared with the simple model of law as coercive orders. He observes that not all laws order people to do or not to do things; some laws confer powers on private individuals and some confer powers to officials.10 Not all laws are enacted. And laws need not be given only to others. His criticisms can be categorized into three main groups. These are: (i) Criticisms on the content of laws, (ii) Criticisms on the range of application, and (iii) Criticisms on the mode of origin. I.

The Content of Laws According to Hart, the model of laws as orders backed by threats conveys the

wrong idea that all laws consist of criminal laws and tort laws. Criminal laws are those that set up and define certain kinds of conduct as something to be avoided or done, irrespective of the wishes of those to whom the laws apply. They have attached punishment or sanction that serves as a motive for abstaining from the prohibited conduct. Tort laws are those that provide individuals with compensation for harm suffered caused by the conduct of others. Similar with criminal laws, tort laws apply irrespective of the wishes of those affected by them. Hart said that there are categories of laws in which the analogy of orders backed by threats fail. There are laws that do not impose duties and obligations but merely provide the facilities for realizing individuals’ wishes. These laws confer legal powers to 10 Rees, enumerates the following species of power:Power in the sense of authority,

especially legal authority, where the means used is the formulation of, or the reference to, a rule of law; b) Coercive power, where the means used consists either in the direct use of physical force, or else in a serious threat of the use of force; and c) Power in the sense of influence, where the means used may be any means other than the employment of a rule of law or of physical force. [Rees, W.J. The Theory of Sovereignty Restated, p. 511]

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create structures of rights and duties, subject to specified procedure and conditions. These include the laws on contracts, wills, and marriages. These powers conferred on individuals, according to Hart, is one of the great contributions of law to social life. 11 Hart differentiates power-conferring laws and criminal laws by giving as illustration non-compliance with Section 9 of the Wills Act. According to that law, if there is non-compliance with the number of witnesses required by that law, the will shall not be considered a valid document. It would be null and void, i.e. without any legal force or effect. Hart explains that non-compliance with the said requirement cannot be considered as a breach or a violation of any obligation or duty because the aggrieved party will not suffer any actual detriment or sanction. Rules that confer powers12, Hart explains, can be distinguished into various kinds. For example, in contracts, there are rules that define legal capacity; there are those that prescribe the manner and form of the agreement; there are those that set the maximum and minimum duration; there are those that provide remedies in cases of breach. Aside from the laws that confer powers to private individuals, there are also those that confer powers of a public or official nature. 13 Examples of these are found in the executive, legislative, judicial, and administrative departments of the government. Rules that govern the judiciary department, for example, include those that specify the subject matter and the content of the judge’s jurisdiction, the manner of appointment, the 11 According to Hart, in his writings on the Omnipotence of Contract: “The law of contract is not

so much a body of rules as the basic mechanism of development in modern law, for it deals with nothing less than the individual as the source of law.” Furthermore, he said: “When contract had become firmly established as the axiom of the modern legal systems, the state as the creator of the law had to a great extent abdicated its function.” For him, the law of contract is important because “the law of contract is the law of the free market.”

12 An example of law that confers power is the right of a person to sue, including its right to sue

the state. For example, in the case of Caltex (Phil.), Inc. vs. Customs Arrastre Service (G.R. No. L-26632, May 29, 1970), the Court explained that the right to sue the state can be created only by the statute; there can be no other source. This is the Austinian or positivist concept of law.

13 Kelsen describes this as “norm-creating power.” He said that “the norms of a dynamic

system have to be created through acts of will by those individuals who have been authorized to create norms by some higher norm.” [Hans Kelsen and the “Pure Theory”, p. 386]

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qualifications and the tenure of judicial office, the canons of judicial behavior, and the procedures to be followed in judicial proceedings. If a judge would deal with a legal dispute that is beyond the scope of his jurisdiction as defined by law, the decision may be voided by a superior court, but there is no sanction attached to this. 14 On the other hand, when a private person does something which does not comply with some essential conditions required by law, that act is a nullity.15 The same is true with legislation; it must conform to the conditions of the enabling rules; otherwise, the legislative enactment could be voided by the courts of law. These rules include those that define the subject matter covered by the legislative powers, the qualifications of the members of the body, the manner and form of legislation, and the procedure to be followed. Hart is of the opinion that a full detailed taxonomy of the varieties of law that is free from prejudice is still in the making. Also, the distinction between power-conferring rules and duty-imposing ones is just beginning to be established. Hart likewise mentions about the strong “itch for uniformity in jurisprudence”. There are two alternative arguments in favor of it that Hart considers. These are: (i) (ii)

Nullity as a sanction, which widens the meaning of “sanction”, and Power-conferring rules as fragments of laws, which narrows the meaning of “law”

Nullity as a Sanction This argument would like to show the identity of the two sorts of rule and exhibit both as coercive orders. It is fastened on nullity, which results when some essential conditions for the exercise of power are not met. It urges that nullity is like a punishment attached, a threatened evil or sanction exacted by law on case of breach of rule. Hart 14 Note: In contrast, according to Austin’s definition of sanctions, the subsequent criticism that

might result when a judge goes beyond the limit of his jurisdiction would be considered a sanction itself because a sanction is defined as the chance of incurring the smallest possible evil.

15 Bobbio distinguishes between an invalid act and an illicit act as follows: “An action is said to be invalid if it does not conform to the legal rules which the legal system sanctions with nullification. An action is said to be illicit if it does not conform to legal rules which the legal system sanctions with punishment.” [Bobbio, N. (1965). The Monist, p. 338]

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argues however that in many cases, nullity may not be an evil to the person who has failed to satisfy the condition required for legal validity because it “cannot be assimilated to a punishment attached to a rule as an inducement to abstain from the activities which the rule prohibits.” The rule merely withholds legal recognition from them. 16 He compares this to the rules of football and says that if the focus was on scoring goals alone and everything else was neglected, then it would not be much of a game. Also, it may be argued that the rule that prohibits certain behavior can be distinguished and separated from the provision for penalties without affecting the intelligibility of the standard of behavior. This is not the case for a rule that requires compliance. Hart mentions the theory propounded by Kelsen, which according to him, narrows down the meaning of the word “law”. Kelsen said that “law is the primary norm that stipulates the sanction”.17 For Hart, this view limits the law as merely the antecedent or “if-clause” in a rule that is directed to officials. This means that law is just a mere direction for officials to apply a certain sanction if a certain breach of a duty or obligation required by law has occurred.18 To illustrate Kelsen’s theory, if for example X is committed, Y is applied; where X is the crime and Y is the corresponding sanction. The general form of the theory of law explained above appears to be that instead of laws as series of orders backed by threats of sanctions, they are mere directions to officials to apply a sanction when a breach occurs. But how can that theory be reconciled with the one when a private individual is conferred with a power such as to 16 Bobbio offers a helpful insight on this matter: “in the case of punishment, sanction for the

transgressor consists in having to submit himself to a force which diverts him or take away from his pre-established goal; in the case of nullification, sanction for the transgressor consists in not being able to avail himself of the force which should have helped him in arriving at his established goal.” [Bobbio, N. (1965). The Monist, p. 340]

17 According to Kelsen, “the legal order determines what the conduct of men ought to be. It is a

system of norms, a normative order.” [Hans Kelsen and the “Pure Theory”, p. 382.]

18 Bobbio says that Ihering is the first to maintain that “legal rules are not addressed to citizens, but to the agencies or organs of the state charged with the exercise of the coercion.” Bobbio however comments that this statement confuses the accessory with the principal because “principally, law imposes duties on judges and on executive agencies in general, but only indirectly on citizens.” [Bobbio, N. (1965). The Monist, p. 328]

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make a contract? Kelsen responds by stating that if an individual breaches the terms of a contract, then the law will be administered in two ways: either by (1) mandating the official concerned to apply the sanction imposed under the law on contracts (e.g. Section 73 of the Contract Act), or (2) directing the private individuals themselves to not enter into the contract if the other party has no legal capacity or has not given any consideration. The sanction would then be the non-performance or the extinguishment of the contract itself. Hart also mentions that recasting is no longer necessary for criminal laws because they are already orders backed by threats. This is however needed in other cases such as in rules that confer legal powers in private individuals because they are mere fragments of the real complete laws – orders backed by threats. A recasting of rules that confer legislative powers may also be carried through. Both Austin’s and Kelsen’s theories revolve around the importance and indispensability of sanctions in a legal system. Hart argues that because it can be shown that law can exist even without sanctions, both theories fail. 1920 Distortion as the Price of Uniformity Hart first points out that the recasting previously mentioned creates distortion. He proceeded to explain that there are many techniques by which society may be controlled. Criminal laws, for example, designate by rules certain types of behavior as standards for the guidance of both the members of the society in general and of the special classes. It is only when these laws are broken that the officials concerned will identify the fact of breach and impose the threatened sanctions. The substantive rules

19 Bobbio is of the opinion that the numerous and frequent objections on the traditional

theory of law as coercion can be reduced fundamentally to three arguments, namely: The general spontaneous observance of the rules; b) The existence in every legal system of rules without sanctions; and c) The infinite regress (i.e. the rule of the sanctions which makes a legal rule legal must also be sanctioned, etc.) [Bobbio, N. (1965). The Monist, pp. 324-325]

20 Bobbio also states, “Considering law as the body of rules directed to judges and to executive agencies, coercion could no longer be considered as the means for backing law, but has consequently to be considered as the very content of legal rules.” [Bobbio, N. (1965). The Monist, p. 329]

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of criminal law guide both the officials and the ordinary citizens. These rules are the means of social control. For Hart, law should also portray both the “ordinary man’s perspective” and the “bad man’s perspective” The law must set a standard of conduct for the behavior of ordinary private citizens and not just wait for when the sanction should be applied. Hart is saddened by the facts of: (i) restricting the principal function of law to private litigations, (ii) using prosecutions only as a means of social control, and (iii) ignoring the diverse ways in which law is used to control, guide and to plan life outside of court. Hart sums up this argument by giving an example with reference to the rules of the game of cricket or baseball. Although one can look at that game from an official’s perspective (e.g. the umpire’s signals), it would be absurd to not look at it from the players’ perspective. II.

The Range of Application Hart reiterates that the order backed by threat is essentially the expression of a

wish that others should do or abstain from doing certain things. However, it is possible that legislation might take this exclusively other-regarding form. In Hart’s view, legislation21, as distinct from ordering others to do things under threats, may have a perfect self-binding force. Hence, for him, the idea of ordering someone to do something ignores an important feature of the law, i.e. that law can be easily and readily applied even to those who make the law. Consequently, the image of vertical or “topdown” law-making cannot adequately account for it. This image can only be reconciled with the realities by distinguishing the legislator in his official and personal capacities. But Hart opines that this is intelligible only in terms of power-conferring rules; it cannot be reduced to coercive orders. Furthermore, it is quite unnecessary. Hart further points out that it is better to treat power conferring-rules as promises rather than coercive orders because promises create an obligation on the part of the promisor. But in order for words to constitute a promise, rules must exist 21 For Kelsen, “the creation of law is always application of law” because the creation of a legal

norm is actually an application of the higher norm which regulates its creation; meanwhile, the application of a higher norm is actually the creation of a lower norm as determined by the higher norm. [Hans Kelsen and the “Pure Theory”, p. 397]

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providing for and governing it. Promising imposes a legal obligation on one’s self and confers a right in favor of others. Under this theory, a person, as the promisor, may covenant with the state that he shall not commit a crime against his fellow men. III.

The Mode of Origin Hart explains that the enactment of a law, like the giving of an order, is a

“deliberate datable act.”22 Hence, theories in support of the model of coercive orders assume that all laws resemble legislation, i.e. the existence of time and place in which law was created or when the order was made or given can be clearly identified. For Hart, it is not necessary in every case to be able to locate the time and place of the coming of the law or order into existence. An example of a case in which it is unnecessary is customary law or custom. A custom becomes a law when it is one of a class of customs which is recognized as law by a particular system. 23 However, a custom is just a subordinate source of law, meaning that the legislature may deprive a customary rule of legal status. Moreover, until the courts apply them in particular cases, such rules are mere customs and in no sense law. Courts usually apply the test of reasonableness before according a custom with a legal status. When the courts use them, and make orders in accordance with them, it is only that that customs receive legal recognition.24 Hart summarizes his chapter by stating that the theory of law as coercive orders is met with the objection that there are varieties of law found in all legal systems which 22 In Kelsen’s words, “law is always created by an act that deliberately aims at creating law,

except in the cases when law has its origin in custom…” [Hans Kelsen and the “Pure Theory”, p. 387]

23 Bobbio explains that according to psychological theories, the difference between a legal rule

and a rule of custom is that a legal rule is obeyed with animus se obligandi while a rule of custom is obeyed with opinio juris sive necessitatis. [Bobbio, N. (1965). The Monist, p. 326]

24 Kelsen, on the other hand is of the opinion that a custom becomes a law when the requirement of opinio juris sive necessitatis is present, i.e. when the generally observed course of conduct is regarded by the individuals: (a) as determined by a legal rule, or (b) as a performance of a legal duty, or (c) as an exercise of a legal right, and not as a matter of arbitrary choice. [Hans Kelsen and the “Pure Theory”, p. 387]

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do not fit this description in three principal respects. To defend the theory against these objections, Hart adopts a variety of expedients. For example, the idea of a threat of evil or 'sanction' was stretched to include the nullity of a legal transaction. The notion of a legal rule was likewise narrowed to exclude rules which confer powers, as being mere fragments of law. Likewise, the enactments of a legislator were considered as selfbinding. The notion of an order was also extended from a verbal to a “tacit” expression of will, consisting in non-interference with orders given by subordinates. Hart is of the opinion that despite the ingenuity of these devices, the model of orders backed by threats obscures more of law than it reveals.

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ALBOS, SPENCER M. 2004-43654

SOVEREIGN AND SUBJECT (A Summary of Chapter 4 of H.L.A. Hart’s The Concept of Law) Hart devotes this chapter for his criticisms of the model of law as coercive orders with respect to the concept of the "sovereign." He first mentions the assumption that in any society where there is law, there is a sovereign. "Sovereign" is defined as "the person or body of persons whose orders the great majority of the society habitually obey and who does not habitually obey any other person or persons." 25 The doctrine of sovereignty states that “in every human society, where there is law, there is ultimately to be found latent beneath the variety of political forms, in a democracy as much as in an absolute monarchy, this simple relationship between subjects rendering habitual obedience and a sovereign who renders habitual obedience to no one.” 26 This vertical Rees enumerates five uses or definitions of the word “sovereign.” These are:“Sovereign” is used as “equivalent to a supreme legal authority”; 2. “Sovereign” is used to mean “a supreme legal authority in so far as it is also a completely moral authority”; 3. “Sovereign” means “a supreme coercive power exercised by a determinate body of persons possessing a monopoly of certain instruments of coercion.” 4. “Sovereign” is used as “equivalent to a supreme coercive power exercised habitually and co-operatively by all, or nearly all, the members of a community.” 5. “Sovereign” is used as “equivalent to a permanently supreme authority, power or influence.” Rees notes that these definitions of the word “sovereign” refer to supreme authorities or powers, each of a different kind. [Bentham, Austin and Classical English Positivism, p. 310; Rees, W.J. The Theory of Sovereignty Restated, pp. 496-500] 25

26 Rees gives the view that if we are using the word “sovereign” in the legal sense, “it is casually necessary that there should exist a sovereign in every state [because] government can only be carried on by means of laws, and laws can only be effectively administered if there exists some final legal authority beyond which there is no further legal appeal.” If we are using the word in the moral sense, then “it is logically necessary that there should exist a sovereign in every state [because] if the supreme legal authority which exists in a state is not a completely moral authority, that state is not an ideally organized society.” On the other hand, “it is not necessary [to have] a sovereign in the coercive sense,” neither in a popular sense, nor in the permanent sense. [Bentham, Austin and Classical English Positivism, p. 311; Rees, W.J. The Theory of Sovereignty Restated, pp. 501-503]

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structure composed of sovereign and subjects is, according to the theory, as essential a part of a society as a backbone is of a man. The doctrine of sovereignty has two points that are of special importance and emphasis for Hart. These points are: (a) The idea of a habit of obedience, and (b) The position occupied by the sovereign above the law. On the first point, Hart would like to determine whether such a habit is sufficient to account for two salient features of most legal systems, namely: (a) the continuity of the authority to make law possessed by a succession of different legislators, and (b) the persistence of laws long after their maker and those who rendered him habitual obedience have perished. On the second point, Hart would like to ascertain: (a) whether the legally illimitable status of the supreme lawgiver is necessary for the existence of law, and (b) whether either the presence or the absence of legal limits on legislative power can be understood in the simple terms of habit and obedience into which this theory analyses these notions. I.

The Habit of Obedience and the Continuity of Law Although the idea of obedience is complex, Hart disregarded this complexity by

defining "obedience" as “deference to authority27 and not merely compliance with orders backed by threats.” Hart explains this concept by giving a hypothetical situation. He gives as example an absolute monarch named Rex who has been a ruler of his 27 Rees distinguishes between the following kinds of authority:Authority of a moral kind,

where a rule obliges a person to act in virtue of its being accepted by his own conscience; b) Authority of a customary kind, where a rule obliges him to act in virtue of his desire not to incur the disapproval of some other person or persons; and c) Authority of a coercive kind, where a rule obliges a person to act in virtue of its being enforced, usually with a penalty attached. This authority has to sub-species, namely: a. Authority of the kind where the rule is enforced not by a supreme coercive power; b. Legal authority in the strict sense. [Bentham, Austin and Classical English Positivism, p. 314; Rees, W.J. The Theory of Sovereignty Restated, pp. 507-508]

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community for a very long time. He controls his people by general orders backed by threats. In this case, it cannot be supposed at first that the people’s obedience to Rex’s orders is habitual because where the law runs counter to the people’s strong inclinations, their eventual compliance with them, even though regular, does not have the unreflective, effortless, engrained character of a habit. A person can be said to have acquired a habit if he has exhibited a behavior for a considerable period of time and if he is likely to repeat this behavior. Hence, if the people have generally obeyed the orders of Rex and are likely to continue to do so, then it can be said that there is a habit of obedience that has developed between Rex and his subjects. This habit of obedience is a personal relationship: each person regularly does what Rex orders him to do. The habits of most of the people are said to be convergent when they each habitually obey Rex. Hart proceeded further by explaining that supposing Rex dies, leaving a son Rex II, who then starts to issue general orders. The mere fact that there was a general habit of obedience to Rex I in his lifetime does not guarantee that Rex II will be habitually obeyed as well. There is as yet no established habit of obedience to Rex II; hence, there is nothing to make him sovereign from the start. Only after his orders have been obeyed by his subjects for some time that it can be said that a habit of obedience has been established. Until then, there will be an interregnum in which no law can be made. However, due to the dangers in discontinuity, legal systems have sought to secure the uninterrupted continuity of the law-making power by providing for rules that would bridge the transition from one lawgiver to another. Applying these ideas to the case of Rex I, Rex I can avoid the problem of discontinuity by arranging in advance that the people would still obey Rex II even after his death. It must be clear to the people that upon Rex I’s demise, Rex II would both have the title to succeed to the throne as well as the right to make laws on his father’s behalf. The people governed must also recognize Rex II’s orders as laws. These conditions are necessary before habitual obedience can be developed between Rex II and his subjects. When explaining the continuity of law-making power through a changing succession of lawmakers, Hart point out that expressions such as the “rule of succession”, “title”, “right to succeed” and the “right to make law” are commonly used. In using these expressions there is an introduction of a new set of elements or rules that

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cannot be explained in terms of habitual obedience. As a matter of fact, the idea of habitual obedience fails in two different though related ways where one lawmaker succeeds another: a.

Mere habitual obedience to orders given by a lawmaker cannot confer on the new one any right to succeed the old and give orders in his

b.

place. Habitual obedience to the old lawmaker cannot by itself make probable, or found any presumption that the new lawmaker’s orders will be obeyed.

For the right to succeed and the presumption to be both present, Hart explains, there must be a rule that allows the new lawmaker to succeed the post of the old. This is because habits of obedience to each of a succession of such legislators are not enough to account for the right of a successor to succeed and for the consequent continuity in legislative power. This is caused by several reasons, including the following: 1. Habits are not “normative”28; they cannot confer rights or authority on anyone; 2. Habits of obedience to one individual cannot refer to a class or line of future successive legislators as well as to the current legislator, or render obedience to them likely. The next topic that Hart discusses is the complex social practice of following rules. He compares and contrasts a habit and a rule. A habit and a rule are similar in a way because they are both repeated when occasion arises. They are different on three aspects: (a) Deviations from a habit will not be criticized by the society. On the other hand, deviations from a rule are met with criticisms. There is no pressure to conform to a habit; there is a pressure to conform to a rule. (b) If a standard of rules is not met, criticism and demands for compliance are expected as legitimate consequences. This is not the same for habits. (c) The third distinction relates to the internal aspect of following rules. Hart explains that for a social rule to exist, the subjects must look upon the behavior in 28 Kelsen is also of the view that “the legal order…is a system of norms, a normative order.” [Hans Kelsen and the “Pure Theory”, p. 382.]

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question as a general standard to be followed by the group as a whole. A social rule must have both an internal aspect and an external aspect. Hart illustrates the idea of internal aspect by reference to the game of chess. In that game, moving the queen ahead might appear as a mere habit to someone who does not understand the rules of the game. This is the external point of view. On the other hand, those who know the rules of the game might manifest a critical reflective attitude. This is the internal point of view towards following rules. When the rules of the game are not followed, it will be met with criticism by those holding an internal point of view but not by those holding merely an external point of view. For Hart, people can accept rules even without compulsion. The important thing is to have a critical reflective attitude to certain patterns of behavior. This critical attitude is manifest in: a. Criticisms, which include self-criticism, b. Demands for conformity, and c. Acknowledgment that such demands are legitimate. Hart cautioned that the internal aspect of rules is often misinterpreted as a mere matter of feelings. This is not true because although people say that they “feel bound” to behave in certain ways, such feelings are neither necessary nor sufficient for the existence of binding rules. What is necessary is the critical reflective attitude explained above. Hart emphasizes however that the acceptance by the society of a rule at one point in time does not guarantee its continued acceptance because there may be a revolution29 in which the society may cease to accept the new rule. In the given hypothetical example of the Rex I, saying that Rex II has a right to promulgate laws after Rex I’s demise presupposes the existence of rules in that social group under which Rex I had that right. II.

The Persistence of Law

29 Kelsen defines “revolution” as an occurrence wherein “the legal order of a society is

nullified and replaced by a new order in an illegitimate way,” i.e. in a way not prescribed by the first order itself. [Hans Kelsen and the “Pure Theory”, p. 389]

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In a 1944 case, a woman in England was convicted for telling fortunes, in violation of the Witchcraft Act of 1735. This case illustrates how a law enacted three centuries earlier can still be a good law. The good question to ask here is, how does a law that has long been dead (i.e. the society had not actually rendered habitual obedience to it) can still be considered a good law? Hart explains that this question can be answered by “substituting the habit of obedience to currently accepted fundamental rules30 that govern the right to make laws and describe the persons who have such right.” Such a rule may be considered timeless. Likewise, it may not only be prospective; it may also be retrospective. In the given example, this can be illustrated when for example the laws promulgated by Rex I during his lifetime shall be adopted by Rex II, Rex III and so on. So when Rex I dies, the laws he made will continue to exist because they are founded on the general rule which the next generations will continue to sustain. Hobbes, Bentham and Austin are of the opinion that habitual obedience is integral in the persistence of laws. They said that “the legislator is he, not by whose authority the laws were first made, but by whose authority they now continue to be laws.” Applying this idea to the example of Rex I, Hart states that the reason why the law passed by Rex I is obeyed by Rex II is the tacit approval of the old law by the latter. Even though Rex II could change the old laws he does not do so for the sake of familiarity and continuity. For Austin, the requirement of habitual obedience is being rendered towards an institution and not a monarch, who is an individual. The sovereign is someone who is obeyed by all; but himself obeys no one. On the explanation of the persistence of laws, Hart cites conflicting theories. The Legal Realists believes that no statute can be considered as law until it is actually applied by a court. Some theorists believe on the other hand that statutes of the present sovereign are law before they are applied by the courts. Based on these conflicting theories, Hart concludes that either both (as ordinary lawyers would acknowledge) or neither, as the full Realist theory claims, are law before they are applied by the courts of the present day to a particular case. 30 Kelsen says that “the basic norm of a positive legal order is nothing but the fundamental rule according to which the various norms of the order are to be created.” [Hans Kelsen and the “Pure Theory”, p. 387]

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III.

Legal Limitation on Legislative Power In the doctrine of sovereignty,31 Hart explains that the general habit of obedience

is complemented by the absence of any such habit in the sovereign. There are no legal limits on a sovereign’s law-creating power because he does not obey any other legislator. The importance of this theory lies in the claim that in every society where there is law there is a sovereign with these attributes. This theory, however, does not insist that there are no limits on the sovereign's power but only that there are no legal limits on it. This is demonstrated by the fact that a sovereign may defer to popular opinion in exercising legislative power. Factors like this may be considered as “limits” on his power, but they cannot be considered as “legal limits” because the sovereign is under no legal duty to abstain from such legislation. Hart however emphasizes that the supreme legislative power within a system may not be totally unlimited.32 For example, a written constitution may restrict the competence of the legislature not only by specifying the form and manner of legislation but also by excluding altogether certain matters from the scope of its legislative competence, thus imposing limitations of substance. This written constitution is a part of the rule that confers the authority to legislate. 33

31 Rees also raises the following objections against the doctrine of sovereignty on account

of its inapplicability to modern political conditions:The theory is inapplicable to the most important political developments of the last centuries, namely political democracy, political federalism, and public law as represented in welfare legislation; b) It is incompatible with belief in international law; and c) It is powerless as a theoretical device to safeguard the individual against despotism. [Rees, W.J. The Theory of Sovereignty Restated, p. 515]

32 Rees has a similar view. For him, if the word “unlimited” as equivalent to “omnipotent”, then it

is neither logically nor casually necessary that sovereignty should be unlimited, but if this word is used to mean “exceedingly great” or “superior to any other”, then it is logically necessary that sovereignty should be unlimited. [Bentham, Austin and Classical English Positivism, p. 313; Rees, W.J. The Theory of Sovereignty Restated, p. 504]

33 According to Kelsen, the constitution is the highest level of basic norm within national law. It consists of rules which regulate the creation of the general legal norms, particularly statutes. [Hans Kelsen and the “Pure Theory”, p. 393]

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IV.

The Sovereign behind the Legislature Hart opines that many modern legal systems are subject to legal limitations in

their exercise of legislative powers.

These legal limitations pertain to substantive

limitations such as those found in the United States of America and Australia, where the division of powers between the central government and certain individual rights cannot be altered by mere legislation. Attempts to make such kind of change are considered ultra vires (i.e. beyond the authority or power vested by law), and can be nullified by the courts of law. The most famous example is the Fifth Amendment to the Constitution of the United States. The said Amendment provides that “no person shall be deprived of life, liberty or property without due process of law.” Some of the laws enacted by Congress have been nullified by courts for being in conflict with this provision. It is noteworthy however that there are legislative actions which are beyond the scope of judicial review. One example of these is enactments that provide for hortatory rights of individuals. Another example is those actions involving political questions. With regard to who is the sovereign, Hart presents Austin's view that in any democracy it is not the elected representatives who constitute or form part of the sovereign body but the electors. For example, in the United States, the sovereignty of each of the states and also of the larger state arising from the Federal Union resides in the body of citizens, which is the one that appoints its ordinary legislature. Hart is of the opinion however that the description of the sovereign as "the person or persons to whom the bulk of the society are in the habit of obedience" applies only to the simplest form of society. He explained that identifying the sovereign with the electorate of a democratic state is not plausible, unless we give to the key words “habit of obedience” and “person or persons” a meaning that is quite different from that which they had when applied to the simple case of Rex’s society. This is so because the simple scheme of habitual obedience and orders cannot suffice for this. Hart concluded this chapter by

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saying that “the theory treating the electorate as sovereign only provides at the best for a limited legislature in a democracy where an electorate exists.” 34

34 The concept of sovereignty as being attributed to the popular majority is indicated by the following example from Locke: “Though in a constituted commonwealth, there can be but one supreme power, which is the legislative, to which all the rest are and must be subordinate, yet the legislative power being only a fiduciary power to act for certain ends, there remains still in the people a supreme power to remove or alter the legislative, when they find the legislative act contrary to the trust reposed on them.” [Bentham, Austin and Classical English Positivism, p. 310]

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ALBOS, SPENCER M. 2004-43654

LAW AS THE UNION OF PRIMARY AND SECONDARY RULES (A Summary of Chapter 5 of H.L.A. Hart’s The Concept of Law)

I.

A Fresh Start In this chapter, Hart begins by saying that the simple model of law as the

sovereign's coercive orders failed to reproduce some of the salient features of a legal system. He demonstrated this by pointing to certain familiar features of municipal law in a modern state and by showing that these were either distorted or altogether unrepresented in that simple model. He then gives a summary of the reasons why the model of law as coercive orders fails to reproduce the salient features of a legal system. These reasons are: 1. The orders backed by threats theory applies mostly to matters of criminal law. Even then, it fails to recognize the fact that a criminal law is applicable not only to the general public but also to the officials who enact it. 2. The orders backed by threats theory does not consider other varieties of law especially those that confer powers of a public or private nature. 3. The orders backed by threats theory does not recognize the fact that some legal rules have different modes of origin such as by explicit prescription, by customary practice, or by divine revelation (e.g. the Ten Commandments from which many criminal prohibitions originated). 4. The orders backed by threats theory does not consider both the continuity of law and the persistence of law in terms of the habitually obeyed sovereign. Also, the sovereign cannot be identified with either the electorate or the legislature of a modern state. In criticizing the concept of law as the sovereign’s coercive orders, Hart also considered a number of ancillary devices. In his opinion, the notion of tacit commands used by those who defend Austin’s theory fails because it cannot be applied to the complexities of modern legal systems. Kelsen’s notion of power-conferring rules as mere fragments of laws restricted to directions distort the ways in which these are spoken of, thought of, and actually used in social life. The device designed to reconcile

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the self-binding character of legislation with the theory that a statute is an order given to others (by distinguishing between the official and private capacities of legislators) involved supplementing the theory with something it does not contain. Hart feels that the root cause why the concept of law as the sovereign’s coercive orders fails is that the elements out of which this theory was constructed, viz. the ideas of orders, obedience, habits, and threats, do not include the idea of a rule. For Hart, without this idea, there is not hope to elucidate even on the most elementary forms of law. Hart also discriminates between two different though related types of rules: 1. Basic or primary rules require human beings to do or abstain from certain actions, whether they wish to or not. 2. Secondary rules provide that human beings may by doing or saying certain things: a. introduce new rules of the primary type b. extinguish or modify old ones, or c. determine their incidence or control their operations. Primary rules impose duties; secondary rules confer powers, public or private. 35 Primary rules concern actions involving physical movement or changes; secondary rules provide for operations which lead not merely to physical movement or change, but to the creation or variation of duties or obligations. Hart claims that “most of the features of law which have proved most perplexing and have both provoked and eluded the search for definition can best be rendered clear if these two types of rule and the interplay between them are understood.”36 35 Bobbio states that “once law is resolved in the secondary rules, it becomes the body of

rules which regulate the exercise of force.” He enumerates four forms of the exercise of force (designated generally as “coercive power”):The power to compel those who do not do what they should do; b) The power to restrain those who do what they should not do; c) The power to substitute what they should have done, for those that did not do what they should have done; d) The power to punish those who have done what they should not have done. [Bobbio, N. (1965). The Monist, p. 330]

36 Bobbio adds that “as a body of rules that regulate the exercise of force, law has four

principal functions:Determining the conditions under which coercive force may or may not be exercised; b) The persons who can and must exercise it;

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II.

The Idea of Obligation Hart agrees with Austin on the idea that law makes human conduct obligatory

and non-optional. However, Hart points out that being under an obligation has inherent difference from being obliged. Being obliged or forced to do something is a psychological state (i.e. requiring beliefs and motives with which an action is done) dependent upon external circumstances. On the other hand, having an obligation or being under a duty does not require psychological conditions, beliefs, or motives. Under the latter, an obligation would exist because it is a norm 37 that is independent of facts for its validity. External facts cannot distort it. For Austin, an obligation is defined not in terms of subjective and varying situations, but in terms of a chance or likelihood of sanctions in case of disobedience. This definition makes an obligation a prediction of incurring evil in case of noncompliance. Hart rejects this interpretation for various reasons. The primary reason is Austin’s failure to consider the fact that deviation from the rules is the reason for the application of the sanction and not the other way around. This means that sanction is a motivation for not breaking the law. The law is not broken because of people’s fear of sanctions. Hart’s main point is that one needs to look at the internal aspect of rules that people apply to themselves. To understand the general idea of an obligation, Hart suggests that one must understand the social rules that create that obligation. An obligation implies the existence of a rule. But this does not mean that an obligation is indispensable for a rule to exist. Rules can exist without obligating anyone. Examples of these are the rules of etiquette or speech. They are not binding in nature but are nonetheless considered as rules as well. c) The procedure by which it must be exercised under those determinate circumstances by determinate persons; d) The quantum of force at the disposal of him who, observing certain procedures, is charged with the exercise of coercive power under determinate circumstances.” [Bobbio, N. (1965). The Monist, p. 330]

37 For Kelsen, there is a valid norm “when individuals whose behavior is regulated by the norm ought to behave as the norm prescribe….” [Hans Kelsen and the “Pure Theory”, p. 385.]

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To determine whether rules give rise to obligations, Hart suggests that one must look at the seriousness of the general demand for conformity and the social pressure behind them. According to Hart, social pressure may take the following forms: a. b. c. d. e.

physical sanctions; general diffused hostile or critical reactions short of physical sanctions; verbal manifestations of disapproval; appeals to the individuals' respect for the rule violated; or operation of feelings of shame, remorse, and guilt.

Hart explains that when the pressure is of the last-mentioned kind, i.e. on the operation of feelings of shame, remorse, and guilt, the rules are part of the morality of the social group and the obligation under the rules as moral obligation. On the other hand, when physical sanctions are prominent or usual among the forms of pressure, the rules are classified as primitive or rudimentary forms of law.38 Hart emphasizes that rules backed by enough social pressure are necessary to maintain social life and balance. Rules prohibiting the use of violence are appropriate examples of this concept. They ensure that people do not inflict bodily harm on one another. Rules that require the keeping of promises are also good examples because they impose an obligation or duty. The conduct required by these rules may conflict with what a person may wish to do but it is beneficial to others; hence, obligations and duties in a sense involve sacrifice. Hart cautions that people must not be misled into believing that obligation essentially consist in some feeling of pressure or compulsion experienced by those who have obligations. To feel obliged and to have an obligation are different though frequently concomitant things. Hart however submits that an obligation must arise from social pressure. Hart again introduces in this chapter the concepts of internal and external points of view. To illustrate these concepts, Hart explains that an external observer views rules in terms of observable regularities of conduct, probabilities and signs, not in the manner in which members of the group that adhere to the internal point of view look 38 Kelsen is of the contrary view that legislators can enact commandments even without attaching criminal or civil sanction to their violation. They are still considered as legal norms because they were created by an authority competent to create law. [Hans Kelsen and the “Pure Theory”, p. 391]

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at their own behavior. To the external observer, deviation from the normal conduct is a sign that a hostile reaction will follow and nothing more. What is essential is having an internal point of view and a critical reflective attitude. A critical reflective attitude considers certain patterns of behavior as common standard, and any deviation from it is met with criticism, demands for conformity, and acknowledgment that such criticism is justified. Criticism is a result of attitude. Attitude is explained by reference to criticism and its justification. For Hart, the life of any society which lives by rules, whether they be legal or not, is likely to cause a tension between those who accept and voluntarily co-operate in maintaining the rules, and those who reject the rules and attend to them only from the external point of view as a sign of possible punishment. III.

The Elements of Law In this discussion, Hart presupposes a society where there are only primary rules

of obligation which the people of the community have to conform to if they are to live closely with each other. For this type of society to function, Hart explains, the people who accept the rules must be the majority. These conditions, however, can only be applied to a small community where the bonds of kinship, common sentiment, and belief are present in abundance so as to allow the survival of a regime of unofficial rules. Applying the aforementioned conditions to a larger sphere would pose several problems: a. The first problem would be the uncertainty that the rules would possess because of the difficulty in identifying them and in determining their scope of application. b. The second problem is staticity as there would be no way of adapting the rules to changing circumstances either by eliminating old rules or introducing new ones. The only mode of change known to such a society will be the slow process of growth or the converse process of decay. c. The third is inefficiency because in case a dispute arises there will be no agency authorized to ascertain the fact of violation and inflict the sanction. The waste of time involved in the group's unorganized efforts to catch and

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punish offenders, and the smoldering vendettas which may result from selfhelp in the absence of an official monopoly of 'sanctions', may be serious. To remedy the aforementioned problems, Hart proposes the union of the primary rules of obligation with the secondary rules: a. The remedy for uncertainty is the master rule, the rule of recognition, which according to him, can be a simple or a complex instrument that possesses flexibility. It may not be more than a list or a text of rules found in a written document or carved in some public monument. Hart explains that in a simple society, it is not the codification of rules that is the crucial step from a pre-legal to legal scenario, but the acknowledgment of reference to the writing as authoritative. Hence, the rule of recognition is a rule for conclusive identification of the primary rules of obligation. The rule of recognition provides for unification of rules. This, for Hart, is what gives birth to a legal system. b. The remedy for staticity is the rules of change, which empower people to introduce new primary rules and to eliminate old ones by specifying certain procedures like in legislative enactment. They also enable private individuals to create rights and obligations in the form of wills, contracts and so on. c. The remedy for inefficiency is the rules of adjudication, which confer powers on certain individuals to arbitrate or judge. They also define the procedures in accordance with which adjudication would take place. Hart concluded this chapter by stating that most legal systems have seen the advantages of centralizing social pressure. They have prohibited the use of physical punishments or violent self-help by private individuals. They have also supplemented the primary rules of obligation by further secondary rules. These secondary rules are what provide the centralized official “sanctions” of the system. 39 For Hart, the combination of primary rules of obligation with the secondary rules of recognition, 39 Bobbio comments that “a system composed only of primary rules would not resemble at all

the systems which we ordinarily call legal; instead, a system composed only of secondary rules not only resembles systems which ordinarily we call legal, but makes perfectly useless the formulation of primary rules.” [Bobbio, N. (1965). The Monist, p. 329]

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change and adjudication is not only the heart of a legal system, but a most powerful tool for the analysis on the question, “What is law?” Illustration:

Model of law as union of primary and secondary rules. 40

40 Source: Maryam Akram. Law as the Union of Primary and Secondary Rules (2014) (accessed 05 January 2017)

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ALBOS, SPENCER M. 2004-43654

THE FOUNDATIONS OF A LEGAL SYSTEM (A Summary of Chapter 6 of H.L.A. Hart’s The Concept of Law)

I.

Rule of Recognition and Legal Validity Hart starts by explaining that although the theory of law as orders backed by

threats fails to account for some of the salient features of a modern municipal legal system, yet it contains certain truths about some aspects of law. These truths can be understood in terms of the complex social situation where a secondary rule of recognition is accepted and used for the identification of primary rules of obligation. This, for Hart, is the foundation of a legal system. Private persons and officials are provided with authoritative criteria for identifying primary rules of obligation, wherever a rule of recognition is accepted. The said criteria may take various forms such as: a. b. c. d. e.

authoritative text legislative enactment customs general declarations of specified persons or precedents

The primary function of the rule of recognition, according to Hart, is identifying whether another rule is part of the legal system or not. Hart contrasts the old simple legal systems with the modern complicated ones. In a simple legal system like that of Rex I, the sole criterion for identifying the law will be mere reference to the fact of enactment by Rex I. The existence of this simple form of rule of recognition can be manifest in the following: a. the general practice, or b. the part of officials or private persons.

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On the other hand, in a modern legal system, which has a variety of sources of law 41, the criteria for identifying the law are multiple.42 These include: a. a written constitution,43 b. enactment by a legislature44, and c. judicial precedents.4546 To avoid conflicts, the aforementioned sources of law are ranked. 47 For example, judicial precedents are subordinate to the enactments by a legislature. Both of these are subordinate to a written constitution. Hart also distinguishes subordination of criteria from derivation by way of examples. Custom and precedent, for example, are 41 For Kelsen, the word “source” of law is figurative and highly ambiguous. It can be used in

both juristic sense (e.g. by saying that the constitution is the source of statues; a statute is the source of judicial decision based thereon; a judicial decisions is the source of the duty it imposes upon the party) and non-juristic sense (e.g. by referring to ideas that actually influence the law-creating organs, such as moral norms, political principles, legal doctrines, the opinions of juristic experts, etc.) [Hans Kelsen and the “Pure Theory”, p. 396]

42 Hart, in his writings on the Omnipotence of Contract, is of the opinion that contracts should

be added as one of the sources of law, in addition to custom, equity, and legislation.

43 According to Kelsen, the constitution is the highest level of basic norm within national law. It

consists of rules which regulate the creation of the general legal norms, particularly statutes. [Hans Kelsen and the “Pure Theory”, p. 393]

44 Kelsen defines “legislation [as] the creation of the law, but taking account the constitution, we

find that it is also application of law” because “in any act of legislation…the constitution is applied.” [Hans Kelsen and the “Pure Theory”, p. 397]

45 “When settling a dispute between two parties or when sentencing an accused person to

punishment, a court applies…a general norm of statutory or customary law. … The judicial function is…like legislation, both creation and application of law. [Hans Kelsen and the “Pure Theory”, p. 396]

46 A judicial decision obtains the force of law when it has the status of res judicata, such that it

has become impossible to replace this decision with another. [Hans Kelsen and the “Pure Theory”, p. 399]

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subordinate to legislation because customary and common law rules may be deprived of their status as law by statute. Their status of law is derived not from a “tacit” exercise of legislative power but from the acceptance of a rule of recognition which accords them this independent though subordinate place. The rule of recognition of a legal system is seldom expressed as a rule, according to Hart. Mostly, the rule of recognition is not stated, but it existence is shown in a way in which particular rules are identified either by courts, other officials, private persons or their advisors. If for example a court uses an unstated rule of recognition to identify particular rules of the system, then that is a characteristic of the internal point of view. Hart compares the rule of recognition of a legal system to the scoring rule of a game. They are similar because the declarations of officials have a special authoritative status attributed to them by other rules. Also, in both cases there is the possibility of a conflict between these authoritative applications of the rule and the general understanding of what the rule requires according to its terms. Hart also differentiates legal validity from legal efficacy. Legal validity means passing all the tests and satisfying all the criteria provided by the rule of recognition. 484950 47 Kelsen explains that “the relation between the norm regulating the creation of another norm may be presented as a relationship of super- and sub-ordination, which is a spatial figure of speech. The norm determining the creation of another norm is the superior, the norm created according to this regulation, the inferior norm.” [Hans Kelsen and the “Pure Theory”, p. 392] 48 Kelsen illustrates the idea of legal validity as follows: “To the question why [an] individual

norm is valid as part of a definite legal order, [it] is because it has been created in conformity with a criminal statute. This statute…receives its validity from the constitution. If we ask why the constitution is valid…we come upon an older constitution.” [Hans Kelsen and the “Pure Theory”, p. 388]

49 Kelsen also explains the concept of presumption of validity of a basic norm. He states

that a basic norm is “valid because it is presupposed to be valid; and it is presupposed to be valid because without this presupposition no human act could be interpreted as a legal, especially as a norm-creating, act.” [Hans Kelsen and the “Pure Theory”, p. 389]

50 Kelsen likewise discusses the principle of legitimacy. This principle recognizes that the

validity of legal norms may be limited in time. It states that legal norms “remain valid as long as they have not been invalidated in the way which the legal order itself determines.” [Hans Kelsen and the “Pure Theory”, p. 389]

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Legal efficacy, on the other hand, means that a rule of law which requires certain behavior is obeyed more often than not. 51 There is no necessary connection between the validity of any particular rule and its efficacy 52, unless the rule of recognition of the system includes also a rule of obsolescence, which would provide that a rule that has long ceased to be efficacious shall no longer be considered as a rule in the legal system.53 Hart also distinguishes between the supreme criterion and the ultimate rule of recognition. The supreme criterion is the part of the rule that dominates over the rest. An example of this is the parliamentary enactment in the United Kingdom. Where the common law or a local or general custom contradicts with the said parliamentary enactment, the latter prevails. The ultimate rule of the legal system is the rule of recognition itself because one cannot go further than that; one cannot trace validity back any further. Hart criticizes the opinion of some writers on one point. Those writers are of the view that the ultimate rule of recognition is assumed or presupposed. Hart considers this idea misleading and wrong. For him, it is neither valid nor invalid; it is simply accepted as appropriate for use in this way. To illustrate his point, Hart uses the examples of the meter bar in Paris and the Big Ben in London, which are considered as the ultimate tests for correctness of measurement and time respectively. Hart also points out the importance of distinguishing between assuming validity and

51 With regard to legal efficacy, Bobbio cites Kelsen, who opines that “a rule is a legal rule not because its efficacy is secured by another rule providing for a sanction; a rule is a rule because it provides for a sanction.” [Bobbio, N. (1965). The Monist, p. 322] 52 Kelsen similarly establishes the relation between validity and efficacy, as follows: a norm

is a valid norm if (a) was created in a way provided for by the legal order to which it belongs, and (b) if it has not been annulled either: (1) in a way provided for by that legal order, or (2) by way of desuetudo, or (3) by the fact that the legal order as a whole has lost its efficacy. [ Hans Kelsen and the “Pure Theory”, p. 391]

53 This concept is also related to Kelsen’s principle of legitimacy, which states that laws “remain valid as long as they have not been invalidated in the way which the legal order itself determines.” [Hans Kelsen and the “Pure Theory”, p. 389]

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presupposing existence. Without such distinction, the assertion that such a rule exists becomes obscured. Furthermore, the existence of the rule of recognition is a matter of empirical fact and not a normative statement as other writers wrongly presuppose. For Hart, legal validity only matters when the legal system is effective. Of course, before there can be an effective legal system, there must first be a legal system. And for a legal system to be considered as existing, the following criteria must be satisfied: 1. The officials of the legal system must have an internal attitude towards the rule of recognition of the system. It is not necessary that private citizens have an internal attitude towards rules as well. For Hart, the indispensable factor is the unified or shared official acceptance of the rule of recognition. 2. The valid legal rules of the system must be generally obeyed by both officials and private citizens. Where the internal point of view is only among the officials, Hart is of the opinion that the society would become like sheep, but it would nonetheless be considered as a legal system. For Hart, a legal system exists when both the officials and the citizens are similar in their concerns with the law. Where there is a coincidence of their points of view, then there is harmony, and the legal system is valid. But this is not always the case. For example, when a society has hit or is in the brink of a revolution 54 there is a difficulty of ascertaining the existence of a legal system. II.

New Questions Hart said that once we abandon the theory of law as a habit of obedience to a

legally unlimited sovereign and substitute for this the theory of the rule of recognition, some important, relatively new and difficult questions arise. The first difficulty pertains to classification. This difficulty arose because the rule which is used to identify the law escapes the conventional categories used for describing a legal system. A set of questions also arise out of the hidden complexity and vagueness of the assertion that a legal system exists in a given country or among a given social group. III.

The Pathology of a Legal System

54 Kelsen defines “revolution” as an occurrence wherein “the legal order of a society is

nullified and replaced by a new order in an illegitimate way,” i.e. in a way not prescribed by the first order itself. [Hans Kelsen and the “Pure Theory”, p. 389]

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The existence of a legal system is dependent on two different sectors of social life, the official sector (officials) and the private sector (citizens). Where these two sectors are congruent in their respective concerns with the law, i.e. where the rules recognized as valid at the official level are generally obeyed, then there is no problem in the legal system. In reality however, sometimes the official sector may be detached from the private sector such that there is no general obedience to the valid rules. The various ways in which this detachment may happen is referred to as the pathology of legal systems. Revolutions55 and enemy occupations are among these. Hart also gives as example the case of former colonies that previously had a colonial legislature, but once they became independent they abandoned the colonial laws and adopted their own rules of recognition. Lastly, where unity among officials disintegrates due to disagreement over some constitutional issues, this could result to the breakdown of the legal system. Hart concluded this chapter by stating that “nothing can eliminate the duality of a core of certainty and a penumbra of doubt when we are engaged in bringing particular situations under general rules. This imparts to all rules a fringe of vagueness or 'open texture', and this may affect the rule of recognition specifying the ultimate criteria used in the identification of the law as much as a particular statute.”

55 Kelsen defines “revolution” as an occurrence wherein “the legal order of a society is nullified and replaced by a new order in an illegitimate way,” i.e. in a way not prescribed by the first order itself. [Hans Kelsen and the “Pure Theory”, p. 389]