H. L. A.

HARTS CONCEPT OF LAW IN THE PEIRSPECTIVE OF AMERICAN

LEGAL REALISM
1. INTRODUCTION

ANALYTICAL jurisprudence is the dominant theme of the legal theory of Professor H. L. A. Hart. But other
jurisprudential approaches are discernible in his thought. One of the more important of these other approaches is that
of American Legal Realism.
While Hart adopts some Realist tenets, he is severely critical of others. His criticism of Realism may be designed
chiefly for effect. That is to say, Hart may have caricatured American Legal Realism primarily to make more vivid
certain points in his own theory. Be that as it may, Harts distortion of Realism is so great as to require response. The
writer is of the opinion that Hart and the Realists are not as incompatible in thinking as Hart in his The Concept of
Law seems to suggest.
Recognition of one point is essential to a meaningful comparison of Hart and the Realists: Harts attempt, in the
tradition of analytical jurisprudence, is to describe a universal legal system, while the Realists seek a method of
critical examination rather than a philosophy of law. As Karl Llewellyn, the greatest Realist,
explained :
There is no school of realists. There is no likelihood that there will be such a school. There is, however, a
movement in thought and work about law. The movement, the method of attack, is wider than the number of its
adherents. It includes some or much work of many men who would scorn ascription to its banner.
Because there is no attempt by the Realists to formulate a complete theory of law, point by point comparison of Hart
and the Realists is not possible. What is possible is a comparison of the respective focuses of attention with a
consequent illumination of differences in the degree of importance attached by each to various phases of law and
legal methodology.
While there is no simple system of American Legal Realism, adherents of the method do, however, share several
common points of departure. Three of these, adopted from Mr. Justice Holmes The Path of the Law, are:
(1) separation of law and morality, which is common to both the Realists and Hart;
(2) the fallacy of the logical form as the source for answers to legal questions, which also is
recognised by Hart but is said by him to have been extremely exaggerated by the Realists; and
(3) the prediction theory of law, which is expressly and categorically rejected by Hart as generating
a distorted picture of law.
2. SEPARATION OF LAW AND MORALITY

While the approaches of both Hart2 and the Realists3 generally separate law and morality to facilitate clearer
analysis, the two differ substantially in focus and tone. Only on the fringes, as may be necessary in an analytical
theory of law, does Harts theory provide room for moral considerations in the administration of law.
For the most part, the rules of law are Harts objective is. And the ought most relevant to Harts legal theory4 is the
correct application of rules which provide relatively clear answers in most cases. In the unusual fringe-area or
penumbral case, Harts legal ought does acquire immediate moral relevance:
Here we touch upon a point of necessary intersection between law and morals which demonstrates the
falsity or, at any rate, the misleading character of the Utilitarians emphatic insistence on the separation of
law as it is and ought to be. Surely, Bentham and Austin could only have written as they did because -they
misunderstood or neglected this aspect of the judicial process, because they ignored the problems of the
penumbra.
While Hart and the Realists agree that moral considerations are of vital importance in areas of legal uncertainty they
disagree rather sharply on the scope of laws penumbral frontiers. Harts theory of rule ambiguity and vagueness is,

for at least the most part, quite mechanistic. He suggests that while the meanings of most words contain large cores
of certainty, the meanings do tend to become fuzzy at some outer point. For example, a prohibition against use of a
vehicle in a park would clearly encompass the use of automobiles, buses and motorcycles, but the clarity of
applicability breaks down when the question becomes use of an electrically propelled toy automobile.6 This same
approach is taken by Hart in his examination of legal standards-concepts such as (fair rate, safe system,
reasonable care, and due process.) He describes such concepts as having certainty in the more extreme possible
cases and losing that certainty as the factual situation becomes less extreme.
Such a view of legal uncertainty sacrifices accuracy and completeness for the sake of symmetry and simplicity.
Missed are some patent areas of uncertainty and some that are not so obvious.8 One of the most important omissions
is that of the competing legal premises-an area that provides choice by categorisation and thus allows injection of
moral considerations into the decisional process. A vivid example of the possibilities of decision making through
categorisation can be found in the famous case of Hynes v. New York Cent. I2.R.O There a sixteen-year-old lad,
after swimming across a river, saw a board extending out over the river, away from the bank. The lad climbed out of
the river, onto the bank, which was part of the defendants railroad yard. He walked out onto the board, was hit by a
falling wire and fell to his death in the river below. The lower court held that the lad was a trespasser thus not due
the ordinary standard of care. The Court of Appeals reversed, holding that the river was a public way. Thus the
lad, while standing on the board over the river was not a trespasser. Therefore the defendant should have been held
to the higher degree of care. In his opinion for the court Cardozo J. clearly declared that the court had been faced
with two valid competing premises. The court selected the one consistent with their view of justice in the case.
In numerous other settings, result-oriented categorisation is often unavoidable. One such instance is where nonsubstantial activity in furtherance of performance has occurred prior to revocation of an offer to enter into a
unilateral contract. If the activity is categorised as beginning of performance, the offeror is precluded from
revocation; if categorised as preparation for performance the revocation is effective.1 The same latitude of choice
is present in many cases of mistake in contract formation. Mistakes categorised as mutual have been viewed by the
common law as fatal to contract formation, but not so if categorised as unilateral. Thus in the landmark decision in
Shewood v. Walker l1 the court viewed the buyer and seller of a pregnant cow to have bargained thinking only that
the cow was sterile. Thus mutual mistake prevented contract formation. On the other hand, if the court had described
the buyers state of mind as one of conscious ignorance of the fecundity of his purchase, or as having consciously
been hoping for a good bargain, the mistake would have been categorized as unilateral and would not have
prevented contract formation.
Among the other more significant areas of judicial choice which Hart overlooks are those in which two lines of
precedent exist, each deciding the same point differently.12 Another is the technique of avoiding an undesirable
precedent by confining applicability to its peculiar facts.13 Also missed is the technique very important to the
growth of law of extending older precedents to varying new fact situation.
The Realist is-ought dichotomy is more complex than that of Hart. Realisms approach offers more latitude for
injecting considerations of morality into the administration of law. Realism has taken the view of its founding father,
Holmes, on the potential role of moral considerations in legal decision making. The Holmesian reason for urging an
analytical separation of law and morality, curiously often ignored by his critics, was clearly stated in The Path of
the Law :
When I emphasize the difference between law and morals I do so with reference to a single end, that of
learning and understanding the law. For that purpose you must definitely master its specific marks, and it is
for that I ask you for the moment to imagine yourselves indifferent to other and greater things.15
Responsible Realists continue the basic Holmesian theme urging a separation of law and morality in order to define
the proper role for moral considerations in the operation of law. Llewellyn predicted great potential for the method
in the appellate process:
[T]he field of free play for Ought in appellate courts is vastly wider than traditional Ought-bound
thinking ever had made clear. This, within the confines of precedent as we have it, within the limits and on
the basis of our present order.16

Professor Jones, leader among contemporary Realist thinkers, has depicted a more complete horizon of potential for
the method :
The choice between alternatives, the selection of the path to be pursued, cannot but be influenced by the
decision-maker's ought to be when we enter the realm of the judge's serious business,' the prosecutor's
discretion, the practicing lawyer's choices, we need a moral theory fully as demanding as the older natural
law tradition but more directly addressed to the points of strain at which moral insights are most needed. In
realist perspective, choice, decision, and responsibility for decision are central elements for a philosophy
of law." l7
While the approaches of Hart and the Realists develop from the same starting point, they differ radically in
emphasis. Hart's theory allows morality a direct role in legal administration only at the outer edges; the Realists
provide an orderly method of injecting moral considerations into the mainstream of a lawyer's everyday " serious
business." Actually what Hart is saying is that uncertainty exists only on law's outer limits and that in this area moral
considerations can properly be used in the administration of law. The Realist is saying that the lawyer who attains a
high level of understanding of that with which he works can readily dispose of the many routine, easily answered
questions and focus his attentions on law's broad lee-way areas. Thus if a lawyer knows his business, there is
significant room for the injection of moral considerations into the bulk of what will be his day to day endeavours.
has depicted a more complete horizon of potential for the method :
3. THEF ALLACOYF THE LOGICAFLO RM

Both Hart and the Realists agree that the syllogistic method is not
a satisfactory explanation of all legal decisions. While in agreement
to this extent, there is again fundamental difference in accent.
16

X. Llewellyn, " Some Realism About Realism " (1931) 44 Harv.L.Rev.

1222, 1253. Professor Harry W. Jones, leader among contemporary Realist

thinkers, has correctly interpreted, I believe, Professor Karl Llewellyn to
have advanced a three-sided theory of the is and ought. To Llewellyn,
the law in action-what officials are doing about disputes-was the basic
is. The basic ought was how legal precepts should be applied. At this
point, Hart and the Realists part company. Because the Realist's ought
contains the ambiguity of precedent in hard cases which necessarily provides
legal officials with choice, there are implicit in the Realist ought
ethical and moral considerations independent of positive law. Thus here a
second ought-a moral ought-is injected into the Llewellyn theory. As to
this second ought, the first ought-how legal precepts should be appliedcan
become is; once legal rules are properly utilised, the judicial door is
opened to consideration of the " ought to be "-the moral ought.
H. W. Jones, '' Law and Morality in the Perspective of Legal Realism
(1961) 61 Colum.L.Rev. 799, 808 n. 32.

%
H. W. Jones, " Law and Morality in the Perspective of Legal Realism "
(1961) 61 Colum.L.Rev. 799, 80a809.
Nov. 1972 HARTS CONCEPT OF LAW AND AMERICAN REALISM 611
1'

Realist scepticism toward the role of the logical form in law is

keynoted in the famous passage from Holmes The Common Law:

The life of the law has not been logic; it has been experience.
The felt necessities of the time, the prevalent moral and political
theories, intuitions of public policy avowed or unconscious,
even the prejudices which judges share with their fellowmen,
have had a good deal more to do than the syllogism in
determining the rules by which men should be governed.
Later the Realists amplified this Holmesian theme. According
to Llewellyn, one major reason for the fallacy of the logical form is
because the doctrine of precedent is two headed :

[I]n any case doubtful enough to make litigation respectable

the available authoritative premises-Le., premises legitimate
and impeccable under the traditional legal techniques-are at

...

least two, and

the two are mutually contradictory as
applied to the case in hand. l9
Thus the doctrine of precedent is in most instances a theory of
possibilities. Not only may there be two lines of precedent that
present choice, but, more importantly, in serious cases there will
always be more than one way of interpreting any legal rule derived
from relevant precedent.20 A strict view of a case can be used
to limit the scope of unwelcome precedents. A loose view
ignoring distinguishing factors allows the jurist to capitalise on

welcome precedents.

21 This methodology of choice accompanied

by conscious or unconscious considerations of social advantage
is the essence of the common law judicial process.
Hart does not worship blindly at the altar of certainty in the
temple of the legal rule, but the foundation of Harts legal system is
the rule, and the prime element of the rule is a dominant centre area
of certainty. Any other portrait of law is viewed as false and
deceiving.22 He even has gone so far as to declare specifically:

[Tlhe life of the law consists to a very large extent in the

guidance both of officials and private individuals by determinate
rules which, unlike the applications of variable
standards, do not require from them a fresh judgment from
case to case. 23
While Hart has acknowledged that men cannot live by deduction
alone, 24 he has made clear his view that the need for more
than the rule in the administration of law is limited primarily to
that hazy frontier beyond laws vast mainland of certainty. The
0. W. Holmes, The Common Law, p. 3 (1891).
K. Llewellyn, Some Realism About Realism (1931) 44 Harv.L.Rev.
20 See E. Llewellyn, The Common Law Way, p. 21 (1960).
21 K. Llewellvn. The Bramble Bush. uu. 67-70.
1222, 1239.
22 See H. L.A: Hart, The Concept o f k a w , pp. 131-132, 135 (1961).
23 Ibid. at p. 132.
24 H. L. A. Hart, Positivism and the Separation of Law and Morality
(1958) 71 Harv.L.Rev. 593, 606.
18
19

612 THE MODERN LAW REVIEW VOL. 35

Realist is charged by Hart as a legal heretic; the accused is said
to deny the existence of the rule-the centre of Harts theory.
Hart sees as one central theme of Realism the claim that talk of
rules is a myth, cloaking the truth that law consists simply of

..

decisions of courts and the prediction of them.

.y25 He warns
that Realist theory, to be used beneficially, must be understood to
represent the exceptional rather than the general; it is a chart of
laws twilight zone :

...

[Alt the fringe of

[law], we should welcome the ruleskeptic,
as long as he does not blind us to the fact that what
makes possible these striking developments by courts of the
most fundamental rules is, in great measure, the prestige
gathered by courts from their unquestionably rule-governed

operations over the vast, central areas of the law. 26

The straw-Realist constructed by Hart bears little resemblance
to the real thing. The real-Realist would disagree with Hart
on two primary points. First, Hart mistook the focus of Realist
attention for a definition of law. Choosing to study and urging others
to study the complex problems of laws leeway areas and its actual
societal impact is not to claim that law is a shoreless world of
uncertainty. Second, the Realist would disagree with Hart on the
breadth of legal certainty. The Realist would argue that a little
cynicism and a close look at the law in action reveals the falsity of
much, though definitely not all, apparent book rule certainty.
The record shows clearly that Legal Realism is not destructive
denial of the existence of legal rules.27 This conclusion is demonstrated
by Llewellyns response to Dean Pounds claim that realists
distort the extent to which justice attains certainty through rule
and form. 28 This response would probably be Llewellyns response
as well to the claim by Hart that Realists are non-believers in the
legal rule : The canvass shows that our subjects are much concerned
with how far justice obtains certainty and with how far
it is attained-or hindered-through rule and form. But that they
tend to differ with the
cases. 20

. . . [Professor] on the how far in both

H. L. A. Hart, The Concept of Law, p. 150 (1961).

Ibid. at p. 150; see note 5, supra, and accompanying text.
z7 K. Llewellyn, Some Realism About Realism (1931) 44 Harv.L.Rev.
1222, 1237.
2a R. Pound, The Call for a Realist Jurisprudence (1931) 44 Harv.L.Rev.
697, 707.
29 K. Llewellyn, Some Realism About Realism (1931) 44 Harv.L.Rev.
1822, 1231. Without question there were a few early Realists who were
*5

26

irresponsible and against whom Harts charge would have real merit.
For the most part these men have been forgotten and are not even mentioned
by Hart in The Concept of Law. Instead, the responsible majority
wing of Legal Realism is accused of rule rejection-an intellectual sin
which simply was not theirs. For an indication of some of the names
that might have been included in Harts indictme::, see K. Llewellyn,
On Reading and Using the Newer Jurisprudence (1940) 40 Co1um.L.
Rev. 581, 598-614.

Nw. 1972 HARTS CONCEPT OF LAW AND AMERICAN REALISM 613

At another point, in fact on the first page of The Concept of Law,
Hart draws on a statement by Llewellyn to support an allegation of
gross exaggerations of truths. He cites Llewellyns long
abused and misunderstood statement from The Bramble Bush:

...

What officials do about disputes is

the law itself. 31 Hart
charges the Realist with refusing to recognise the obvious and prime
phases of law-the easily decided case and the internal aspect of
law. Many have taken Llewellyn to task for this statement.3z
Few, other than Hart, have done so since Llewellyn explained the
statement in the preface to the second edition of The Bramble Bush :

No piece of ammunition in the whole teapot compares in the

frequency of its use, nor yet in the irresponsibility thereof, with
our little thirteen-word passage. With its help, I was shown
to disbelieve in rules, to deny them and their existence and
desirability.

. . . This was painful to me. But it was even

more painful to observe that none of the attackers, exactly

none, gave any evidence, as they slung around the little sentence,
of having looked even at the rest of Bramble Bush
itself. 33
Llewellyn was not asserting an exclusive definition of law in his
ill-treated statement. The message for the intended law student
audience was not the non-existence of legal rules, but was a suggested
focus of attention for meaningful study of law. Llewellyns
concern was not the law on the books, the existence of which he did
not deny, but the law in action. This law in action is most vividly
revealed in the conduct of officials in settling disputes. Thus official
conduct in dispute settlement was urged to be the focal point for
purposeful analysis of laws real impact.
Two other of Harts charges against Realist theory require
comment. First, Harts caricature Realist accepts the discredited
psychological theory of rationalisation. The judge in
deciding a case, rather than adhering to the mandate of the legal
rule, selects his desired result and then seeks out an applicable legal
rule to support his previously reached decision.34 In a note at page
250 of The Concept of Law, Hart unequivocally charges Judge
Joseph C. Hutcheson, Jr., as having advocated the erroneous theory
of intuitive application of rules. Without question, some of the
discredited fringe-element Realists could have been cited to
support such a claim of irresp~nsibility.B~~ut the Realist charged
bears little resemblance to Harts intellectual villain.
30

H. L. A. Hart, The Concept of Law, p. 2 (1961).

K. Llewellyn, The Bramble Bush, p. 12 (2nd ed., 1951).

Jbid. at p. 10.
33 Ibid. Such an explanation should not have been needed. See the second
paragraph in The Bramble Bush below the one containing the criticisetl
sentence.
34 H. L. A. Hart, The Concept of Law, p. 137 (1961).
35 Even, the early Judge Jerome Frank might fall within this category, see
J. Frank, Law and the Modern Mind (1930).
31
32

614

THE MODERN LAW REVIEW VOL. 35

The record speaks for itself. To begin with, in the article found
damning by Hart, Judge Hutcheson in his discussion clearly
indicated, by reference to Judge Bridlegoose and the cases to be
decided by (' large dice " and those to be decided by " small dice,"
that he was addressing his remarks to the " small dice " cases-the
hard to decide " leeway " cases.36 This, in itself, reveals Judge
Hutcheson to be innocent of the Hart charge.
Furthermore, as to the " leeway " cases, Judge Hutcheson said :
" [Wlhen the case is difficult or involved, and turns upon a
hairsbreadth of law or a fact, that is to say, ' when there are
many bags on the one side and on the other' and Judge
Bridlegoose would have used his 'little small dice,' I, after
canvassing all the available material at my command, and duly
cogitating upon it, give my imagination play, and brooding
over the cause, wait for the feeling, the hunch-that intuitive
flash of understanding which makes the jump-spark connection
between questions and decision, and at the point where the
path is darkest for the judicial feet, sheds its light along the
way."37
Judge Hutcheson was not advocating judicial decisions based upon
whim, caprice or visceral reaction supported only by post-decisional

application of legal precepts. Certainly, " all relevant material at

my command" includes those legal rules which appear to have
possible applicability.
The Hutcheson message may have been influenced by and is
strongly supported by John Dewey's theory of Instrumental
Reasoning :
" [Mlen do not begin thinking with premises. They begin with
some complicated and confused case, apparently admitting of
alternative modes of treatment and solution. Premises only
gradually emerge from analysis of the total situation. The
problem is not to draw a conclusion from given premises; that
can best be done by a piece of inanimate machinery by fingering
J. Hutcheson, " The Judgment Intuitive; The Function of the ' Hunch '
in Judicial Decision " (1928) 14 Cornell L.Q. 274; see also Rabelais, '' Bridlegoose
Sets Forth The Reasons,Why He Employed Dice In The Cases That He
Was Called Upon To Decide at p. 497, in The Portable Rabelais (Putnam
transl., 1964). Any doubt cis to Judge Hutcheson's position should hav;
been removed by his article Lawyer's Law, and the Little, Small Dice
(1932) 7 T,ul.L.Rev. 1. There without subtle reference, the learned judge
explains: When the matter is plain, the judge is bound, whether he likes
it or not, to follow the beaten way. When, however, he is compelled to
decide a cause for which there is no precedent, no serviceable analogy
available; when on this side and on that advocates are powerfully and
cunningly pressing choices for adoption, what is the hardly pressed judge to
56

do? . . He cannot, because of our modern scruples against the judgment

aleatory, openly confess, as old Judge Bridlegoose did, to divination by
the ' little, small dice.' " It is in these cases that Judg:,Hutcheson urges
use of the intuitive reasoning process he describes as the judicial hunch."
See ibid. at p. 10.
37 J. Hutcheson, " T'fio Judgment Intuitive: The Function of the ' Hunch ' in
Judicial Decision (1929) 14 C0rn.L.Q. 274.
SOV. 1952 HARTS CONCEPT OF LAW AND AMERICAN REALISM 615

a keyboard. The problem is to find statements, of general

principle and of particular fact, which are worthy to serve as
premises. As a matter of actual fact, we generally begin with
some vague anticipation of a conclusion (or at least of alternative
conclusions), and then we look around for principles and
data which will substantiate it or which will enable us to choose
intelligently rival conclusions. 38
Neither Dewey nor Hutcheson is urging that the rule or precept be
ignored.
The Realist message, like that of Dewey, is that the rule or
precept alone cannot be relied upon to solve lifes most difficult
problems-legal or otherwise. As Martin Buber, in a diEEerent
context, so well declared :

[Tlhe relation of faith is no book or rules which can be looked

up to discover what is to be done now, in this very hour . . .
I give the word of my answer by accomplishing among the
actions possible that which seems to my devoted insight to be
the right one. With my choice and decision and action-committing
or omitting, acting or persevering-I answer the word,
however inadequately, yet properly; I answer for my hour. 39
Man, with an awareness of his freedom, its limitations and the
resulting responsibilities, must bring his experience, knowledge and
available ascertainable information to bear in an intensive thought
process. Previously formulated rules must be taken into account in
a well-reasoned deci s i~n,b~u t the decision is much more than the

resurrection of an already existing rigidly fixed abstract rule.

Because all potentially relevant rules must be considered in the
leeway cases, each decision in such cases in one sense moves the
law more and more toward certainty by increasing the number of
specific types of cases previously decided. Yet the movement
toward certainty must for the most part be illusory. Mans scientific
knowledge, social suppositions and economic conditions are constantly
in flux, producing new legal problems and necessitating new
answers to various old problems. Thus the movement of the law
must be an ebb and flow, toward certainty then inevitably always
away.41
.J. Dewey, Logical Method and Law (1924) 10 C0rn.L.Q. 17, 23.
M. Buber, Between Man and Man, p. 68 (Beacon ed., 1955).
40 As so acqurately noted by Professor R. W. M. Dim: [Tlhe assertion
that the hunch is supreme goes scarcely far enough, for the hunch
is itself the product of standards, patterns of behaviour, concepts and
RS
39

...

rules
: Jurisprudence, p. 479 (2d ed., 1964); see also E. W. Patterson,
Logic in the Law (1942) 90 U.Pa.L.Rev. 875, 890.
41 Also of significance, and another matter perhaps confused by Hart, is that
Judge Hutcheson may to ambstantial extent have been more of an advocate
of fact scepticism than rule scepticism. The judicial cynics known
as fact sceptics joined their Realist brethren, the rule sceptics, in
attacking the logical form of judicial decisions. However, their attack was
directed at the minor premise-to the process of fact determination at the
trial level. T h y did not doubt the existence of rules, they doubted the
factual brew that went into the syllogism with the rule. For a
616 THE MODERN LAW REVIEW VOL. 3.5

A related erroneous assertion by Hart against the Realists is:

...

...

Legal Realism
in some versions
holds no statute to be
law until it is actually applied by a court. 42 This principle is from
the theory of law formulated by John Chipman Gray, who, while
he contributed to later Realist theory by moving the judge from the
wings to the centre of the judicial stage, cannot be included as a

member of the Realist group. He was, instead, a great cousin )

of Hart in the family of analytical jurisprudence. While Realists
are interested in what courts do, no Realist, so far as my research
has revealed, has shared Grays theory of statutes as sources of law
separate from actual law. In fact, it seems safe to say that concern
for this type of analytical labelling is simply not a primary part of
the Realist focus. Again a false enemy is challenged by Hart.
4. PREDICTIOTHNE ORY
According to Hart, once the Realist has destroyed the legal rule,
he is left with nothing but a theory of law as a body of predictions
of how officials will decide To illustrate the alleged
Realist preoccuption with prediction theory, Hart extracts another
statement from Llewellyns BrambZe Bush : [Rlules are important
so far as they help you to predict what judges will do. That is all
their importance except as pretty playthings. 44 Of this Hart
urges :
To argue in this way is to ignore what rules actually are in
any sphere of real life. It suggests that we are faced with the
dilemma : Either rules are what they would be in the formalists
heaven and they bind as fetters bind: or there are no
rules, only predictable decisions or patterns of behaviour. Yet
surely this is a false dilemma. 45

To borrow an apt phrase used in a different context by Professor

Dworkin : It is as if a zoologist had proved that fish are not
mammals, and then concluded that they are really only plants. 46
Without question the Realists emphasise the importance of ability
to make accurate legal predictions, but the reason for this emphasis
is not, as charged by Hart, because of any theoretical negation
of the legal rule. Rather it is because recognition of areas of
statement of the distinc$n between rule scepticism and fact scepticism,
see J. Frank, Cardozo and the Upper-Court Myth, (1948) 13
Law alp Contemporary Problems 369. That Judge Hutcheson was a factsceptic
First, at the time he wrote
the article cited by Hart, Judge Hutcheson was a trial judge and thus
necessarily was having to cope with numerous difficult factual situations.
Second, his examples in the article are patent cases and admiralty collision
cases, both of which he describes as presenting difficult factual
is suggested by at least two factors.
I

42
43
44

45
46

problems.
H. L. A. Hart, The Concept of Law, p. 64 (1961).
Zbid. at pp. 132-137.
I(. Llewellyn, The Bramble Bush, p. 14 (2nd ed., 1951).
H. L. A. Hart, The Concept of Law, p. 136 (1961).
R. Dworkin, The Model of Rules (1967), 35 U.Chi.L.Rev. 40.
NOV. 1972 HARTS CONCEPT OF LAW AND AMERICAN REALISM 617

certainty will limit litigation to areas of uncertainty. Only by

developing and testing tentative predictive methods is it possible
to ascertain whether any reasonably accurate criterion for case
prediction in this area does exist. Also because the law never
remains still, there is an ever present need for prediction of developments
both in areas of present and potential movement. Todays
certainty may be tomorrows change and the uncertainty of today
may be the certitude of tomorrow.
Realist prediction theory is not intended to provide a definition
of law; it is instead a conscious matter of focus. Prediction is one
of the areas of the lawyers serious business upon which the
Realists concentrate their attention. One Holmesian statement,
not intended as general definition, provided the foundation for the
later Realist prediction theory. In a lecture to law students, Holmes
declared: The prophecies of what courts will do in fact, and
nothing more pretentious, are what I mean by the Law. 47 Holmes,
in spotlighting laws uncertainty, surely meant : What I mean by
law in this lecture. Prediction of case results was necessary according
to Holmes because considerations smouldering beneath the
surface of the logical form in judicial decisions have often influenced
greatly or even controlled the outcome of cases. The goal is more
certainty, through examination of the law in action as opposed to
the law in books. From such analysis the Realists have sought to
develop narrower and more accurate legal categories, to discover
the policy considerations at work in judicial decisions and ultimately
to provide tools of analysis for maximum accuracy in mapping both
the movement that law is undergoing at any given time and the
movement which is about to occur.
Again, Hart and the Realists are not so much at theoretical odds
as one might intially expect. They are simply focusing on different
matters-a difference more in emphasis than actual theory. Hart
is constructing a model of law in as complete a form as possible. His

primary concern is with legal rules. The Realists are focusing not
on a total legal construct but on serious everyday problems. Theirs
are the questions: What is the law in action? How does it differ
from the law on the books ? What is its effect on the citizenry ? How
may it be improved ? 48
0. W. Holmes, The Path of the Law (1897), Collected Legal Papers,
pp. 167, 173.
48 According to Llewellyn: They (the realists) want Law to deal, they
themselves want to deal, with things, with people, with tangibles, with
definite tangibles, and observable relations between definite tangibles-not
with words alone; when law deals with words they want the words to represent
tangibles which can be got at beneath the words, and observable relation.;
47

between those tangibles. They want to the$ i?s, and rules, and
formulas by facts, to keep them close to facts : Some Realism About
Realism (1931) 44 Harv.L.Rev. 1222-1223. On improvement of the
Law as the primary goal of Realist endeavours, see J. Frank, If Men Were
Angels, p. 57 (1942) and note 16 supra with accompanying text.
618 THE MODERN LAW REVIEW VOL. 36

5. HARTAN D THER EALISTRS ECONCILED

The Realists are illusory adversaries for Hart. They do emphasise

a different dimension of jurisprudence. Hart selected as his task
the construction of an analytical model of law. The Realists offer
no attempt at a complete legal philosophy 49; their contribution is
one of methodology-an approach to analysis. Hart stresses the
entirety of the system. The Realists focus on the points of stress in
the actual day-to-day operation of the legal system, points which
tend to be particularly visible in the adjudication of legal disputes.
Their central theme is that, if legal rules and the decisional process
are truly understood, any case actually worth litigating will be one
in the leeway areas of law described by Hart as the penumbral
area of legal rules. It is here that the legal subject, in this
context the decision maker, will be able, in pursuit of a just and
moral way, to dominate the legal object, the rules of the system.
It is here that man cannot and should not live by deduction
alone.
Just as Realism has been reconciled with Natural Law theory,50
so too can it be readily harmonised with Harts analytical theory.
Hart offers a foundation for legal research. When faced with the
question of what an analytical model seeks to reveal, Hart has
wisely answered :
Suppose a man to be occupied in focusing through a telescope
on a battleship lying in the harbour some distance away. A
friend comes up to him and says Are you concerned with the
image in your glass or with the ship ? Plainly, (if well advised)
the other would answer, Both. I am endeavouring to align the
image in the glass with the battleship in order to see it
better. 51
Yet the overall tone of The Concept of Law suggests that the architect
intended his model and theory as ends in themselves. The
model of law is advanced as a portrait of reality-rather than an
abstracted ideal type. 52 This is perhaps the prime pitfall of
analytical jurisprudence. As Professor Harry Jones recently
denoted of laws dimensions :

There are many mansions in the house of jurisprudence, and

I would not belittle anyones perspective on law in society,

provided only that he does not insist that his is the only perSee E. W. Patterson, J u r i s p y d e n c e : Me n and Ideas of the L ~ Jpp,. 537538 (1953); K. Llewellyn, Some Realism About Realism (1931) 44
Harv.L.Rev. 1222, 1233-1235.
50 See H. W. Jones, Law and Morality in the Perspective of Legal
Realism (1961) 61 Colum.L.Rev. 799; see also E. Garlan, Legal Realism
and Justice (1941).
51 H. L. A. Hart, Analytical Jurisprudence in Mid-Twentieth Century: A
Reply to Professor Bodenheimer (1957) 105 U.Pa.L.Rev. 953, 967.
52 See Hart, The Concept of Law, p. 95 (1961). Here the accuracy of the model
is stressed, with its value as an analytical tool mentioned in a secondary
manner.
Nov. 1972 HARTS CONCEPT OF LAW AND AMERICAN REALISM 619
49

spective that gives a true or meaningful view of ultimate legal

reality. Law is an intricate and crucially important social
technology, and we must beware of the kind of dogmatic
monism, not unknown in legal philosophy, that attempts to
bring every aspect of laws functioning within a unitary scheme
or explanation. The phenomenon of law in society is too complex
to be compressed into a single analytical formula. 53
No analytical model can reflect the constant errors which occur in
the administration of a legal system and which are, or at least have
the force of, law. Nor can it properly portray the dynamic naturethe
constant movement and change-of a legal system. Neither is
there room in the model for the law groups 54 institutional
practices which are not provided for by declared rule. Nor can such
a theory distinguish paper rules from rules in action. In
addition to these weaknesses inherent in any analytical model, Hart
did not provide in his model to the extent possible for the uncertainty
of law.55
Notwithstanding its weaknesses, the model is one of the more
accurate analytical models of law yet offered. While not even
Harts pen and perception are strong enough and accurate enough
to produce a true and exact model of law, this is not to say that
Harts contribution is of less than major magnitude. A chart of
the more easily understood may be a useful preliminary to exploration
of the hazier frontiers of difficulty. But, if it is to be of use,
the Hart model must be recognised for what it is-a Weberian ideal type yy with no counterpart in the world of
reality. Only
with such awareness of its limitations, can the model become an
effective implement in analysis of law.
The potential advantageous uses of Harts model and theory
are many. To begin with the study of the model is in itself a good
mental exercise, which is justification enough in itself for the construction
of the model. In addition, the model offers some concrete
substance, particularly to those not versed in the law, who, of
course, have vague but not precisely delineated notions of what law ) is about. Exposure to the model and its
various segments,
forces one to think about many of ihe phases of the law in a much
more precise manner than before.
Harts primary contribution is not his model but the array of
analytical devices and methods he uses in structuring his model.
Some of these are his creations. Others he adapts from other disciplines,
to use in his philosophy of law. His dichotomy of legal
rules between primary and secondary offers an attractive

framework for categorisation. His hierarchy of rules, reigned over

by the rule of recognition

suggests interesting possibilities for
study, particularly of the inter-play between various levels of legal
53

H. W. Jones, The Efficacy of Lam, p. 5 (1969).

I(. Llewellyn, The Common Law Tradition, pp. 11-120 (1960).

54 See
55 See

note 8 supra with accompanying text.

650 THE MODERN LAW REVIEW lTOL. 35

rules. His definitional approach, which focuses the attention of its

user on functional rather than abstract meaning, has significant
implications for future legal analysis.
If the Realist aim of comparing the is, the law in action, with
the preliminary ought, the way the rules say cases should be
decided, is even to be approached, more than understanding of
empirical research methodology is essential. One must be able to
perceive, at least, faint images of the ought-to ascertain from the
law on the books directions as to how legal precepts should be
applied. Such a perception of the ought cannot help but be aided by
analytical method, and it is in this task that the Hart model and
theory can be quite helpful. With it we can better pursue the
greater ought and answer the challenge laid down by Holmes:
The remoter and more general aspects of the law are those
which give it universal interest. It is through them that you
not only become a great master in your calling, but connect
your subject with the universe and catch an echo of the infinite,
a glimpse of its unfathomable process, a hint of the universal
law. 56
Armed both with Harts contributions and Realist method, and
with a willingness to proceed without definite and authoritative
answers in an uncertain realm of value judgment, man is about as
well prepared as possible to explore law and its effects with real
hope for improvement.
E. HUNTETRA YLORJ,R .*
56

0. W. Holmes, The Path of the Law (1897), Collected Legal Papers,

* LL.B.

(Tulane), LL.M. (Columbia) ; Professor of Law, Rutgers University

pp. 167, 202.

School of Law. Camden.