HLA Hart, The Concept of Law Introduction Herbert Lionel Adolphus Hart (H L A Hart) was born in 1907, and graduated from New College, Oxford, where he read classics, ancient history and philosophy. He was born in Yorkshire in to second generation Jewish immigrants, he went on to become the most famous legal philosopher of the twentieth century. Hart received his early education at Cheltenham College and Bradford Grammar School. He then enrolled in New College, Oxford, where he studied under H.W.B. Joseph. Hart earned his bachelor's degree in 1929 and was admitted to the bar in 1932. Eight years later Hart returned to Oxford to take up a philosophy fellowship, later to become Professor of Jurisprudence. Hart died on 19th December 1992. H.L.A Hart single-handedly reinvented the philosophy of law and influenced the nation's thinking in the 1960s on abortion, the legalization of homosexuality, and on capital punishment. He sought to form a concept of law which would be of relevance to all forms of law, wherever or whenever they arose. His most significant writings include Causation in the Law (1959), The Concept of Law (1961), Law, Liberty and Morality (1963), and Essays on Bentham (1982). The Concept of Law is one of the most noteworthy and original works of legal philosophy written in the twentieth century. The Concept of Law, dominated British jurisprudence in the final decades of the 20th century. It has been argued that Hart had redefined the domain of jurisprudence and moreover established it as a philosophical inquiry of the "nature" or "concept" of law. In this assignment I seek to critically explain Hart‟s concept of law, the nature of rule, the idea of obligation and the rule of recognition.
CONCEPT OF LAW What is law? A question which has many answers. Throughout the centuries different scholars have answered this question in different ways. Some definitions were accepted others were ridiculed. It is possible to describe law as the body of official rules and regulations, generally found in constitutions, legislation, judicial opinions, and the like, that is used to govern a society and to control the behavior of its members. John Austin's answer was that law is "commands, backed by threat of sanctions, from a sovereign, to whom people have a habit of obedience". Natural lawyers, such as Jean-Jacques Rousseau, argue that law reflects essentially moral and unchangeable laws of nature. Hart, set about explaining the concept of law not by way of definition but by striving to clarify the function that legal words perform when used in the progression of a legal system. Hart argued law is a system of rules, divided into primary (rules of conduct) and secondary ones (rules addressed to officials to administer primary rules). Page 1 of 6
Secondary rules are further divided into rules of adjudication (to resolve legal disputes), rules of change (allowing laws to be varied) and the rule of recognition (allowing laws to be identified as valid). Hart disapproves of the concept of law which was formulated by John Austin. Hart begins explaining his concept of law by first critically examining Austin‟s command theory. According to Austin, all laws are commands of a sovereign backed up by sanctions. Hart argued that a legal system is not a compilation of individual laws, but rather a union of primary and secondary rules. Primary rules impose an obligation: what a citizen can or cannot do. Primary rules either forbid or require certain actions and can generate duties or obligations. For a citizen with an internal perspective to the law, the existence of a primary rule will create an obligation for him or her to behave a specific way. Secondary laws define particulars of the primary rules these secondary rules gives power to certain bodies to create, declare or modify laws, and define their powers and procedures. In common law systems, the secondary rules define the law making powers of the legislatures and confer on the courts the authority to interpret and declare relevant law in particular cases that come before them. The secondary rules may be found in a written constitution or may exist, as in the case of the UK, in the form of custom. Hart called his theory a version of soft positivism. It is „soft‟ in two ways. First, it accepts that law may exist in society as a matter of practice and observance, even if it is not officially declared to be law. Second, it accepts that the legal system may permit a court to apply moral standards in resolving a case before it. This does not mean that morality gains an upper hand over law, but only that the rules of recognition in the legal system hands the court a discrete power to take morality into account in identifying the law or in making new law. According to Hart no society has the man power to appoint officials to inform every member of that society of the things he was supposed to do and supposed to omit. Therefore it can be said that law is general. It generally asks people to behave in a specific way to keep their actions in a specific. Officials from the government or sovereign won‟t come each day to check whether each and every member is following the law. If the primary instructions are being avoided by a citizen then officials will draw his attention to them and demand compliance, or the disobedience may be officially recorded and the threatened punishment imposed by a court THE NATURE OF RULE One of the principal lessons of The Concept of Law is that legal systems are not only made up of rules, but legal systems are founded on them as well. According to Bentham and Austin, sovereign makes all of the rules, on the other hand with a totally contrasting opinion Hart argued that the rules make the sovereign. Hart insisted that the command theorists had lost sight of the internal aspect. The internal aspect of a rule reveals the sense of obligation to observe the rule. The external aspect of a rule is its objective existence. Page 2 of 6
A rule is, according to Hart, a certain kind of complex social practice that consists of a general and regular pattern of behavior among some group of persons, together with a widely shared attitude within the group that this pattern is a common standard of conduct to which all members of the group are required to conform. To use the rule is to conform one's own conduct to the relevant pattern, and to accept the rule is to adopt the attitude that the pattern is a required standard both for oneself and for everyone else in the group. According to Hart, a legal system may be best considered a "union" of primary rules of obligation or duty and secondary rules of recognition, change, and adjudication. Hart characterizes the distinction between primary and secondary rules in the following way: primary rules either forbid or require certain actions and can generate duties or obligations; secondary rules confer powers, public or private and sets up the procedures through which primary rules can be introduced, modified, or enforced. Secondary rules can be thought of as rules about the rules. 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. When we think of something being against the law, or required by the law, we are generally in the realm of primary rules. When analyzing the necessity for secondary rules, Hart imagines a simple society, with only primary rules, but concludes that such a society would face a number of challenges: because there would be no systematic method of rule creation, there would be uncertainty about what the rules actually are; the system would be very static, since any changes in the rules would have to occur organically; finally, without a defined adjudication method, inefficiencies would arise from disputes over whether a rule was actually broken. These three problems can be remedied with the introduction of three types of secondary rules, in order: rules of recognition, rules of change, and rules of adjudication. THE IDEA OF OBLIGATION Rules‟ are of two types. Hart refers to them as „primary‟ and „secondary‟ rules. Essentially, the primary rules of obligation are the fundamental prohibitions which ensure necessary regularity in a legal system, such as the rules of the criminal law or the law of tort. They are binding because of practices of acceptance which people are required to do or to abstain from certain actions. Rules of obligation are distinguishable from other rules in that they are supported by great social pressure because they are felt to be necessary to maintain society. The key to understanding Hart‟s positivism is to appreciate the nature of obligation. Hart argued that the concept of law as sovereign command backed by a threat overlooks the element of obligation that characterizes law. We know that in some societies people are forced into obeying the commands of rulers. Yet in a normal society there are a vast number of rules that people observe, not because they fear sanction but because they think that it is the morally right thing to do. If people does not voluntarily follow the law most of the time, something is terribly wrong in that society. Perhaps there is no society at all, as society is founded on shared rules of behavior. There are many laws that individuals do not like for example smokers will despise anti-smoking laws or laws which Page 3 of 6
increase taxation on tobacco, but most people will agree that the rules made according to certain accepted processes needs to be followed. The idea of a rule implies an obligation, but not all rules are thought to be obligatory. Rules of social etiquette and rules of grammar are also rules. But there may not be a sense of obligation attached to them that one must strictly follow them. The sense of obligation arises from social pressure. The point at which a rule becomes a rule of obligation is uncertain, but the fact that it happens is not. Hart argues that a small community, closely knit by common sentiment and belief, and placed in a stable environment, might be able to live with a set of rules approximating to the „primary rules of obligation‟ he has described. But this would not be possible in a large community, because of the very nature of the primary rules. Because as society gets larger and more complex, the
shortcomings of a rudimentary set of laws based on
diffused social pressure become evident and the need for a different type of rules is felt. Hart called these “secondary rules of obligation”. The separation of rules into these two different categories allows him to establish a method to determine the validity of a law, which is what determines whether it creates an obligation among citizens in a society or not. Laws may also be different from coercive orders in as much as they may not necessarily impose duties or obligations but may instead confer powers or privileges without imposing duties or obligations on individuals. Hart states that the idea of obligation makes sense only in the context of (normative) social rules. Yet not all rules imply the existence of an obligation; rules of etiquette, for example, do not impose obligations. Hart explicates three characteristics that distinguish social rules that impose obligations from those that do not. (1) Rules imposing obligations are those rules for which the demand for conformity is insistent and the pressure against those who deviate or threaten to deviate is great. (2) These rules are thought to be important because they are believed necessary to the maintenance of social life. (3) The obligations and duties required by these rules are thought of as involving sacrifice of renunciation. As with the internal point of view, the person under obligation need not experience any particular psychological feelings; one need not feel obligated or under compulsion as a result of the serious social pressure supporting rules of obligation.
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THE RULE OF RECOGNITION Hart formally introduced the rule of recognition in his famed book “The Concept of Law”. In that book Hart considered a community which does not have a legal system and then explains the various social problems which could arise in such a community and how the introduction of certain rules, such the rule of recognition would solve these problems. Hart‟s thesis that a rule of recognition exists in every legal system is the central feature of his positivistic theory of law, for it is that feature which distinguishes which things are law and which are not and also provides a means for identifying the law in a morally neutral approach. It also affords an answer to the question of when a legal system exists. According to Hart, a simplest version of the rule of recognition in the English system is whatever the Queen in the Parliament enacts is law. The rule of recognition tells us how to identify a law. In modern systems with multiple sources of law such as a written constitution, legislative enactments, and judicial precedents, rules of recognition can be quite complex and require a hierarchy where some types rules overrule others . But, by far the most important function of the rule of recognition is that it allows us to determine the validity of a rule. Validity is what allows us to determine which rules should be considered laws, and therefore, which rules should create obligations for citizens with an internal perspective to the law. According to Hart, validity is not determined by whether a rule is obeyed, its morality, or its efficiency, but by whether it fits the criteria set forth by the rule of recognition. The question of the validity of law is to be answered with reference to the rule of recognition or with reference to the constitution. Hart states, “The rule of recognition is ultimate in the sense that while the validity of other rules is determined by their conformity to the criteria specified in the rule of recognition, there can be no question concerning the validity of the rule of recognition itself.” So any law which is not valid according to the constitution is an invalid law. Hart states that once a rule is established according to the rule of recognition, whether by the legislature or by judicial precedent, it becomes part of the legal pedigree and there is little further uncertainty about its meaning or validity. The reason that Hart gave for the necessity of a rule of recognition was to solve the problem of uncertainty about the rules by making it easy for people to clearly identify what the laws are. But if new laws can be created every time a judge makes a difficult decision, it makes identifying the rules just as difficult as if there were no rule of recognition at all. This means that judges cannot be free and unconstrained to make new law in any way they wish every time a case comes up where existing laws are undefined or when the factors that influence a decision are not explicitly part of a distinct set of secondary rules. The rule of recognition is clustered under powers as a secondary rule, but it looks more like the acceptance of a special kind of rule than a power. Moreover, there Page 5 of 6
appear to be some rules of recognition which are not powers, such as those which indicate the criteria to be applied , for example constitutive rules of procedure. Hart articulates that acceptance of a rule of recognition rests on social facts, but he does not concern himself with the reasons why, or the circumstances in which it comes to be accepted. Social and moral considerations may well set limits on a rule of recognition at the time of acceptance so that it may have built-in limitations that provide safeguards against certain abuses of power. Where there is an accepted constitution in a society that accepted constitution is the rule of recognition. In most countries the rule of recognition is stated in the constitution. In England, it is accepted that the common law overrides custom and that laws of Parliament override common law.
CONCLUSION In conclusion, Hart‟s analysis of primary and secondary rules provides a very useful framework for understanding the sources of law and how we can distinguish valid laws from invalid ones without entering into subjective moral territory. Hart‟s system creates a way to reconcile some of the inconsistences in Austin‟s theory, while also incorporating some of the more normative nuances of the law without making any moral claims. Hart observes that people feel an obligation to follow primary laws, even in cases where the likelihood of being caught and punished is slim to none. Since Austin defines laws as demands issued by a sovereign under threat of sanctions, this observation cannot be explained by Austin‟s theory. Hart has contributed a lot to the modern legal system through his different works, all though there are criticisms it can be said that he had further refined the positivist views. Hart has not only defined what law is but also has shed light upon what makes a law into a law , how it can be recognized and what obligations it imposes upon the society.
LLB Year 4 – 2016 Spongebob: “What do you usually do when I'm gone? Patrick: waiting for you to come back.” Page 6 of 6
