The concept of law –H.L.A.

Hart

- At the very beginning, Hart entailed that the notion of law was nebulous. He
said that it didn’t have a definite answer from daily experience, but people
could recognize some features of the law.

- At this stage, it seems that Hart did not want to define why law exists. He
wrote:

“Virtually everyone except the child or foreigner coming across the English word
‘law' for the first time could easily multiply such examples, and most people could do
more. how to find out whether something is the law in England;"

- He then postulated five features of what people think as the feature of law:
1. Prescription
2. compensation
3. compulsion
4. rules for punishment and compensation
5. procedural rules

- However, he said it couldn't be the way to define what law is. The reasons for the
vagueness are there are some rules which resemble law, but they are not enacted
by legislative procedure and organized by an effective system of sanctions. The
example could be some primitive law and international law.

- Moreover, he said there are some rules which deviate from laws as a matter of
degree. Those are the standards to be laws. There are some concomitants in some
rules, therefore it demarcates from the meaning of 'law,' but they would share
some features of 'law.'

- He named three issues to identify what law is.

1. Where does the obligation come from in the case of order backed by threat and
the law?

2. if morality will have some influence on the conduct of people, what is the
difference between morality rule and law?
 3. what is the difference between the convergent behavior, such as habit, and the
law in the society?

- The answer cannot attribute to the predictive nature of law, because the law is
guidance and justification, not a compulsory statement that judges must follow
without discretion.

- The answer could also not be explained by a compulsive feeling. When

interpreting the laws, the courts have various alternatives to choose to suit the
best outcome of the case. That would instigate the question of the legitimacy of
the rightness of choice. In this case, it can be observed that the statute of a
country is a source of law, not part of the law.

- He further proffered that laws, therefore, cannot be generalized as a set of rules

of behavior, since it doesn't improve the understanding of the nature of law.
Otherwise, it is a circulatory argument, no more than stating that since it is the
rules of behavior, therefore, it is laws.

- Furthermore, the definition of law could also be useless if the definition could
extend without any limit. As a result, an appropriate context to construct a
description will be vital. The example could be the foot of a man, and the foot of
a mountain.

- After illustrating the precaution in defining what law is, he again stated the
central issue to be concerned:

1. the critique of Austin's command theory

2. the relationship between morality and law and the concept of justice.
3. the other notions which share a similar feature and to distinguish them from
law

(end of chapter 1)
Chapter 2 Law, commands and order

- There are different situations in which one person may express a wish that
another person should do or abstain from doing something.

- When the wish is expressed with an intention that a person should conform
to the wish, it is conventional to call the language using imperative mood.

- There are many imperative forms of languages

1. A request: give me a dollar
2. A plea: do not hurt me
3. A warning: don’t touch

- The imperative form seemed to be appropriate because it fits the context.

- The example which Hart used is: Give me the money, or I will shoot.

- He claimed that it is an order, not mere asking. If the clerk handed over the
money, it could be said that the clerk in the gunman's power. He was
coerced by the gunman.

- The gunman cannot be said to give an order, because it suggests that there is
some authority to grant such order, but that doesn't fit the case.

- It, therefore, is appropriate to say the order backed by threat. (OBT)

- It is also not to say that is a command because it implied a relative

hierarchical organization of men. That's also not the case. To command is
characteristically to exercise authority over men, not power to inflict harm,
and though it may combine with a threat of harm. A command is primarily
an appeal not to fear, but to respect for authority.

- Therefore, Austin's theory is misleading to call 'law' as 'command,' because

the element of authority involved in law has been one of the obstacles in the
path of any easy explanation of what 'law' is.

The indication of general understanding:

- Hart gave an example of canon law. He thought that legal control, e.g.,
penal law, have two ways:
 1. It dictates the general conduct
 2. It applies to a general class of persons.

- And the range of person affected and the manner in which the scope is
indicated may vary with different legal systems and different laws.

- That means the general conduct the law would regulate will be subject to
different legal systems and various laws.

- Its variance will be determined by the general understanding of the subjects

the law would apply. The canon law would also have such understanding
that normally all the members of the church would be within the laws

- Therefore, Hart said the range of application of laws is a question of

interpretation of the particular law aided by such general understanding.

- Austin, as Hart concluded, is wrong as he misled the readers that he

confused the ordering with face to face order. He believes that order does
automatically entail addressing the subject.

- The way of communication to the subjects doesn't determine the existence

of the laws. Law does exist when it is made.

- Moreover, the law is different from the order backed by threat (OBT) in the
gunman situation. The gunman is undoubtedly superior to the clerk because
of the use of violence. However, that is temporary. It is enough for the
gunman to gain a superior position to give an order to the clerk to ask for
money.

- However, law is persistent as standing order.

- Secondly, the law is supposed to be made by a sovereign which lay down

rules that everyone would obey, and it obeys to no one. It is the indication
of supremacy and independence.
 - The Austin’s idea that using a concept of ‘ a general habit of obedience' was
a standard to identify law is a vague idea, because it can't evaluate how
general obedience would become law.

- Some bodies may give orders or rules, as long as it is subjected to a primary

legal source or power. They are not supreme, and they are the subordinate
lawmakers in this case.

- Nevertheless, Hart gave an example of USSR. The Queen in Parliament can

make law concerning USSR, but it would not form part of the law in USSR
since USSR, and the Queen in Parliament are two separate sovereigns in
different territories.

- In conclusion, there must be some people issuing general OBT which are
generally obeyed, and it must generally be believed these threats are likely
to be implemented in the event of disobedience.

- Moreover, the sovereign must be internally supreme, and externally

independence. Those are the condition of laws being made.

(end of chapter 2)
Chapter 3: the variety of laws:

- To distinguish the concept of law from the situation which is the order backed
by threat, there will be three main areas to be concerned.

1. The content of laws

2. The range of application
3. The mode of origin

- The content of laws

- The feature which demarcates the order backed by threat and the law is that
the latter performs a different social function.

- The order backed by threat is an instruction which sets up and defines certain
kinds of conducts as something to be avoided to be followed, irrespective of
their wishes. In contrast, the laws in which sanctions applied would provide a
motive for abstaining from these activities.

- If sanction in the case of violation of laws or breaches of requirements of laws

is to be conceived as 'evil threat' similar to that by criminal behavior, that
would be a confusion.

- First of all, the law is a framework to create rights and duties to individuals
and to facilitate them and realize their wishes. Law, therefore, confers legal
power upon them, by certain specified procedures and subject to certain
conditions, structures of rights and obligation.

- The power thus conferred on individuals to mold their legal relations with
others, and it is one of the significant contributions of law to social life.

- Therefore, individuals have options to choose whether they would follow the
requirement in law. If they do not choose to fulfill the requirement or fail to
fulfill the requirement, there would be no legal force or power created. The
nullity is an effect, but it is not a breach or a violation of any obligation or
duty nor an offense, and it would be confusing to think as the same as the
threat by the gunman's order.
 - The usual requirement for the law to confer legal power on private individuals
will be:
1. Capacity or minimum qualification which those exercising power must
possess (being adult or sane in a formation of contract)
2. The manner and form in which the power is to be exercised.

- Nevertheless, there are also a further class of laws which also confer legal
powers, but the powers are of public or official rather than a private nature.
These rules are specifying the scope and the jurisdictions of the judges,
qualification, appointment.

- If these rules are violated by the court or public body neither do the judges or
the public body to the action commit an offense. It still has its authority, until
it is overruled or quashed by superior courts for lack of jurisdiction.

- The meaning of a case being reversed is that the lower court has said either
about the law applicable to the case or facts is considered wrong.

- The meaning of quashing a case is the order of the lower court is lack of
jurisdiction. It is not what the court said that is wrong, but the order or his
saying itself. The court is not empowered to do, though other courts may be so
authorized.

 The distinction between primary rule (criminal law) and secondary rule (power
conferring rule)

- Hart said the primary rule, as the criminal law, are setting up standards, but the
secondary rule (power-conferring rules) are the rules which confer power to
make general rules or to impose duties on particular person who would
otherwise not be subject to them. Therefore, power-conferring rules are the
recipes for creating duties.

- For those who think of the consequence of failing to fulfill the requirement of
some primary rule as a sanction comparable to the order back by threat. That is
a chagrin.
 Nullity and sanction

- Nullity may not be evil to the person who has failed to satisfy some conditions
required for legal validity.

- The reason why it can’t be assimilated punishment is that we can identify and
distinguish two things:
1. Sanction by the punishment of prohibited behavior
2. Nullity of conduct

- The reason why nullity and sanction are different is that the condition to be
void is a failure of conformity of specific sets of rules. These conditions are
necessary components of the law to become complete and enforceable. In the
absence of them, certain action, such as consideration of a contract, would
become meaningless.

- However, the sanction of violation of prohibited rule could still exist as a

standard of approved behavior, even though the punishment of the provision
could be absent.

- Some dissidents, such as Hans Kelsen, challenge the positivist' s view on the
status of law. Hans said 'law' is the primary norm which stipulates the
sanction. He proposed law is a set of instructions of 'if-then' clause, which
compel the officials to enforce the law when there are violations.

- However, Hart argued that Hans had ignored the diversity of laws. The
reduction proposed by Hans would have distorted the essence and the function
of law in a society. He consented that criminal law is a standard of social
norm, directing the people to behave according to it. It is, nevertheless, the
remedial solution. There are functions which law would have, other than such
punishment.

- The example would be power-conferring law in private domain, and the

secondary rule which is used to changing the scope or to varying the content
of the provisions.
 The range of application

- The range of application is a matter of interpretation because there could be a

possibility that the legislators would enact laws which preclude themselves as
the objects of the law.

- It could also be the reason to differentiate 'law' and 'order backed by threat'
because the person who enacts the law could still be the object of the law to
govern. The self- binding phenomenon could be explicated by the dual
capacity of the legislators, but Hart said that "promise" could also serve the
same function. A promisor could create the obligation owed to others and
fulfill the requirement by himself.

- There is a rare situation in which a promise to whom the promise is made and
who has a special claim to its performance. One the example is the case of
trustee.

-
- With regards to these examples, legislation could be said to introduce and
modify the general standard of behavior to facilitate the people.

 The mode of origin

- The paragraph is related to custom and law

- The encapsulation is that law, to a certain extent, resembles an order, but

there is an area in which the source comes from custom. However, the
difference is the custom lack legal status, as there is no deliberation by a
sovereign or consciousness of a sovereign to recognized custom as law. The
real difference, in the view of Hart, is the existence of sovereign.

- Hart asserted that the custom is a source of law. There are two conditions for
a traditional rule to become a law.
1. The recognition in the legal system
2. The meaning of the legal recognition

- The yardstick of the recognition is sometimes manifested as the concept of

 reasonableness. In determining whether it is reasonable, the court has
absolute discretion in accepting or rejecting a custom from being a law.

- The manners of recognition are by either clear affirmation or tacit

acquiescence. However, in the case of acquiescence, the law-delegated
bodies make orders to its objects, and the reason why such order have legal
status is a resemblance to the general know what the sergeant orders the men
and choose to acquiescent it. The example is used to elaborate that the reason
for a traditional rule to have legal status is by virtue of this manner of
recognition, or it still fails to become law.

- Some antagonists said this is not the case. If customs were laws prior to being
recognized as laws, it had failed to take account on the case, where some
customs were still not regarded as laws. The failure to acquire legal status
and the recognition of the sovereign is two different things. They are not
necessarily linked together. The causation between them is just a mere
possibility.

- In responding to the view of antagonists, it could be said that a statute has

already been ordered, but a traditional rule has not. It is a dogmatic view. The
alternative is reasonableness, but Hart thought that it only approves the
existence of custom only. It is because there should have a distinction
between a legal system having unlimited judicial discretion, and a counter-
part which only accept the circumscription of reasonable custom as an
applicable one.

- The distinction is necessary because the meaning of unlimited judicial

discretion is only valid when there is no confinement. Therefore, what is
called reasonableness should be excluded in a sense.

- If a custom had already existed as law on the ground that the sovereign
acquiescent it and not to intervene, that would not have been the fact that the
custom should be respected as law because there could be other reason for
the sovereign not to exterminate the custom. The mere allowance doesn’t
guarantee the custom could inherit a legal status in a legal system, in which
there is an effect of compulsion on the subjects.
 - Finally, Hart said, the condition for a custom to acquire legal status is the
existence of a sovereign, and it is a necessary condition for the existence of a
legal system.

(end of chapter 3)
Chapter 4 sovereign and subject

- In criticizing the simple model of law as coercive orders, Hart introduced the
concept of a sovereign.

- the stance of the chapter: Whereas law exists, a sovereign will exist.

- “sovereign” is the body who have habitual obedience to no one. The subjects of a
sovereign are those who have habitual obedience to the sovereign. The
relationship creates a vertical structure is an essential part of a society in which
law would govern

- Hart adumbrated two concepts which are the characteristics of a legal system:

1. "the continuity of the authority to make law possessed by a succession of

different legislators."

2. the persistence of laws, which exists even though the maker has perished.

- Hart claimed that the second question is related to the status of a sovereign as to
the legal system.

- He also raised the question as to the connection of custom and obedience to

legislative power and the status of the unlimited supreme law-giver.

 the habit of obedience and the continuity of law

- Habit is a convergent behavior. If people are habitually obedience to a ruler,
there is no guarantee that people would continue to obey him, and his
successor also would have danger to have a stop on his ruling.

- People would wait and see whether the ruling of the successor continues to
be obeyed.

- Therefore, the answers are:

I. habitual obedience may end at volition because there is no right of
 succession
II. there is no automatic transition.

 The similarity and difference of habit and social rule:

- Similarity:
a) they are all repetitive behavior

- differences:
a) a habit exists as long as there is a convergence of behavior, but a
rule would be formed when a deviation of a rule would receive a
sanction.

b) Deviation of rules requested justification which would be

regarded as legitimate. The standard of criticism would usually be
accepted as legitimate or made with good reason by the rule giver
and those who comply with laws.

c) A social rule should have an internal aspect and the external

aspect, whereas a habit could be merely a fact about the
observable behavior of most of the group. The internal aspect of a
social rule is a phenomenon which the members use it as a critical
attitude to a certain pattern of behavior as a common standard.

- A rule is similar to a social rule. A rule, to a certain extent, is the standard of

behavior which a law-giver establishes. When time went by, the rule would
be accepted not only as a standard but also as of right of the law-giver. At
that time, the law-giver then will be considered as a legislator with authority
to legislate.

- The right or the entitlement of obedience will pass to his successor. Unless
there is contrary, it will continue.

- In contrast, the habit of obedience is not enough to account for the right of a
successor to succeed and the continuity of ruling as well as providing a
basis for the ruling.
 - Notwithstanding the fact mention, modern society may be operated in a
more sophisticated way, in which the fact of acceptance can't be achieved as
easily as that of simple tribe society.

- There will have two different kinds of acceptances. One is the type among
the general public, and the other type is among the government official. The
acceptance among the general public will be revealed as a mere
identification of a vague content of rule or make claims and exercise power
conferred by it.

- In contrast, the acceptance of the government official will be shown as the

way to apply the law and guide the ordinary people according to the law. It
could be summarised as the function of law-making, law-identifying and
law-applying.

- With regards to the reason, the concept of habitual obedience and OBT
would not describe all the aspect of laws.

 The persistence of law

- This is something about the existence of laws, and it invariably links to the
right to legislate and the rule of recognition.

- The notion which is claimed that custom should not be regarded as law since
there was a lack of application of the courts fails, because it doesn’t
distinguish a law which was enacted before but now is repealed as being
obsolete by the modern legislator; and a law which was enacted before but still
exist in the same legal system. Both of them acquire legal status. The reason is
whether a lack of application of the courts should not be the rule of
recognition of the legal system, which plays the role as the criterion to identify
whether the given rule is law or not.

- This is the reason to respond to the assertion by Thomas Hobbes, who said the
legislator is he, not by whose authority the laws were first made, but by whose
authority they now continue to be law. It also defends the assertion of legal
realism.
 Legal limitation on legislative power

- This section is investigating the nature of legal limitation.

- Hart opined that the doctrine of sovereign conceals some truths. Hart agrees
what Austin proposed, trying to distinguish the identity of a legislator and a
sovereign, even though they may be referred as the same one in some
situation.

- However, he said there is a situation which a sovereign obeyed to no one

and subjected to no legal limitation, but it could have moral and political
limitation. The courts would consider them in different nature, not
weighting them as important as legal limitation.

-
- If a sovereign legislates beyond the limitation, there would be void, but it
doesn’t mean that he is unable to legislate the law. Therefore, the nature of
the limitation is not a legal duty, but a legal disability.

- Concerning that, the legal limitation is identified by a criterion which

conferring the authority to the legislation, so that it can't be said that the
sovereign is habitually obeyed.

- Moreover, the law of recognition confers the qualification for the legislator
to legislate, not to others with more superior authority.

- Nonetheless, a legislator could submit to a sovereign, but the former could

still be the highest authority to make law.

 The sovereign behind the legislature.

- The section is examining who the sovereign of a legal system should be

- As there could have a differentiation between the identity of a sovereign and

that of a legislative body, for the reason that there could be a situation, in
which a legislative body has the high authority to enact a law, but subjects to
 other restriction.

- It engenders a question of who gives the restriction on the legislative body,

and who a sovereign should be. Austin said the electorate should be the
sovereign. This is an intricate answer as it could mold the situation as if there
were no need to have order and obedience and the sovereign can exist by itself
with no criticism on why the sovereign exists by itself.

- Despite the sophisticated arrangement, the device cannot rescue the theory.
The reasons are as follows:

-
1. Austin’s theory on sovereign creates a situation, in which the individuals’
official capacity constitute another person who is habitually obeyed, but it
doesn’t explain what confers the qualification to define the official
capacity of the individuals.

- And that conferring the qualification must be the secondary rule which
defines how the qualification was recognized.

- Hart tried to exclude the possibility that such rule is an order backed
threat or a custom.

- Is the rule an order?

- First of all, the rule must exist, and it defines what the members of the
society must do to function as an electorate. These are the two premises.

- Is there a situation, in which those who are defined as electorates prior to

the rule which aims at defining who qualifies as being the electorate? The
answer is no. That means the existence of the rule must come before the
existence of the dual capacity of the individuals.

- Moreover, a sovereign would not co-exist with an order, for which it

would not be called as the order without the existence of a hierarchy. If
this is the mechanism of an order, the rule would not be an order, for
which, as Hart said, must have already existed and have been followed.
That means the reason for an order to exist is the existence of a hierarchy
 which contains a sovereign and his subjects.

- Is a rule a custom?

- Hart said the sovereign person is not identifiable independently of the

rules. As a result, it cannot be said that the rule as merely the terms or
condition under which the society habitually obeys the sovereign in
this way.

- Therefore, the rules are constitutive of the sovereign, not a habit of

obedience.

- Moreover, the rules set forth the condition to elect their

representative, not merely serving the function as the qualification.

2. If saying that the sovereign is the electorate, and the existence of the
legislative limitation is due to the order given by the electorate to the
legislature. What is more, is the electorates tacitly give the order to a
legislature, we would find an aberrant conclusion that the ordinary people
in official capacity know the exercise of power or the content of the rules
which is as convoluted as the constitution of United States. However, this
is not the case in reality.

3. As what Hart postulated the example of America Constitution, there are

some restrictions on the legislature. Austin’s theory still cannot solve the
problem.

- Even if the electorate is claimed as to be the sovereign, they cannot

elude the restrictions, since not all constitution contains an amending
power, and sometimes even where there is such an amending power,
certain provisions of the constitution which impose a limit on the
legislature are kept outside its scope. Therefore, the amending power
is limited.

- In Article V of the Constitution of the United States, it provided that

‘no amendment made before the Year 1808 shall in any Manner affect
the first and fourth Clauses in the Ninth Section of the first Article
and that no State without its consent shall be deprived of its equal
 suffrage in the Senate'.

- If a sovereign were the electorate who is imposing the restrictions and

acquiescent them, but he didn’t intend to revolt, that would blur the
distinction between revolution and legislation, as there is no
indispensability of manner and procedural rules.

(end of chapter four)

Chapter 5 – primary rules and secondary rules

 A fresh start:
- Hart asserted that the simple model of law proposed as coercive order
failed to account for some salient points in a legal system.

- The difference between law and coercive order (the reasons for the failure
of the model):
 The law would apply to the law-giver and the subject, but the latter
would only be applicable to the subject.

 There are varieties of law:

 1. Law conferring legal power, which includes the rule of
adjudication, and the rule of legislation.
 2. Law creating or varying legal duties

 The mode of origin: legal rules are not generated by anything

analogous to explicit prescription.

 The model failed to take account on the continuity of legislative

authority, and the sovereign person could not be identified with
either the electorate or the legislature of a modern state, but the
genesis of coercive power could be recognized.

- The bilateral capacity model is giving a good explanation on why the

legislator would be bound by the law he has enacted. However, there is
one thing which has been ignored. It is the rule which defines what sort of
procedural rules which the legislator must conform are. Only if do they
follow the rule; they have the status of being legislators.

- In summary, the coercive orders model cannot give birth to a

comprehensive idea of ‘rules.'

- To ameliorate the pitfalls, rules should be divided into two groups, which
are:
 1. Primary rules: it is the class of rules which impose duties.
 2. Secondary rules: it is the class of rules which conferring power.
 - The primary rules are to prescribe the substantive content of the behavior
or changes.

- The secondary rules are to provide for the operation which leads not
merely to the physical movement of change, but to the creation or
variation of duties or obligations.

- Hart said 'law' is a conglomerate of two types of rules working together to

form a system.

 The idea of obligation:

- The reason why 'law' is conceived as a coercive power is the revelation
that human behavior is not free, and in some sense obligatory.

- Therefore, the idea of having an obligation and the term ‘to be obliged’
should be clearly be distinguished, because that is what the difference
lies.

- Austin tried to use the term ‘chance’ or ‘likelihood’ when the person
suffers punishment for his disobedience to define obligation.

- However, there are fundamental fallacies in his interpretation. It is

because he uses the term ‘chance’ and likelihood,' that implied that he
conceived sanction as a prediction of the existence of the obligation. He
ignored and obscured the internal aspect of rules.

- Having an obligation to do something is an internal perception of rules.

Contrary to the external perception of rules, those who possess the
internal perception are the ones who accept the rule as part of the
GROUNDS for their behavior, not a PREDICTION of what others would
do.

- Therefore, they will not behave the same as by-passer who would usually
claim that ‘if I don’t do the same way as others, I will suffer…’
 - The second fallacy is embedded in the concept of internal perception of
rules. The reason why there is an internal perception is that the existence
of rules is a kind of reflection of the insistence of the significance and
seriousness of rules among the public. This is the nature of rules.

- Moreover, Hart said having an obligation indicates that People will think
that it is of paramount on maintaining their social lives, even though there
are sacrifices and renouncements of their interests as the cost.

- Furthermore, having an obligation would also reveal there is a bond or

contract as a relationship which is substantiated by social pressure, and
which hinge on those who bear the responsibility. It would either be a
punishment or amelioration by paying the equal value of things to others

- These are the difference between having on obligation and having a

feeling to be obliged.

 The element of law:

- Provided that the only means for social control is the general attitude of
the group, which is the realm of the characteristic of rules of obligation,
the primary rule which a society live by should satisfy two conditions:
 The first condition is it must contain some form of restrictions
on the free use of violence.
 The second condition is that there is powerful social pressure for
those who object to the rule.

- It is still possible in a small community, where there is knit by ties of

kinship, a common sentiment, and belief and stable environment which
form a regime of unofficial rules.

- However, it must be defective.

- The first defect is lack of certainty. If anyone who would have doubt or
question what the rules are or what the precise scope of a rule is, there
will be no way to solve the problem.
- The second defect is the static characteristic of rules. If there is an only
primary rule for imposing duties on people, the beneficiary will have no
power to release those bound from their performance or to transfer to
others the benefits which would accrue from the performance. That
means they have no way to change the rule.

- The third defect is the inefficiency. It is because of the diffuse social

pressure so that disputes continue interminably. Lack of final and
authoritative will lead to private vendettas which will be a more serious
defect for many societies.

- The remedy for all of the above problems is to invent the secondary rules
which become the supplement of the primary rules. Hart proposed that is
the indication from primitive world to modern world society.

- As to the remedy of the uncertainty, Hart introduced the term ‘ the rule of
recognition.' It will indicate some features by which a suggested rule will
be recognized the rule which substantiated by social pressure and
conclusive affirmation. The key element is authoritative, and Hart
implied that is the reason for acceptance at this point, and also the what
the concept of legal validity come from.

- The legislative law is superior to the common law is because the rule of
recognition arranges the order of superiority.

- The remedy for the static quality of primary rules is ‘the rule of change.'
There is a close association between the rule of recognition and the rule
of change. Since the latter will not exist without the former, the product
of the rule of change must be identified by the rule of recognition.

- Moreover, the rule of change confers individuals to vary their initial

position under primary rules.

- The remedy of inefficiency is the rule of adjudication. That confers

individuals to make authoritative determinations of the question of
whether primary rules have been broken. Besides, the rules also define
the procedure to be followed.
 - They are different from the primary rules because they confer judicial
power and status on judicial declaration about the breach of obligation.

- The relations between the rule of adjudication and the rule of recognition
is the authority of making a decision by the courts would also come from
the rule of recognition. They are inseparable.

- Finally, Hart said the conglomerate of the three concepts, ‘the rule of
recognition’, the rule of adjudication’, and ‘ the rule of change’ can not
illustrate and explain all the phenomenon and aspects of laws, but they
deserve to be the kernel of the legal system. If the comprehensive picture
can be delineated, there should be a further explanation to describe the
other element.

(end of chapter 5)
Chapter 6 – the foundation of a legal system
- The OBT model fails to describe the internal aspect of a legal system of a
sovereign.

- The significance of the rule of recognition in a sovereign is to set out the

criteria to identify the primary rules.

- These criteria take any one or more of a variety of forms, include:

 1. Authoritative text
 2. Legislative enactment
 3. Customary practice
 4. general declarations of specified persons

- however, it is important to distinguish the concept of subordination of

criteria from the derivation of criteria. The reason for this is that the
legal status of rules is not a tacit exercise of legislative power, but to the
acceptance of a rule of recognition, even though both rules( legislation
and common law) are seemed to be the derivation of legislative power.

- The rule of recognition is a clear indication of the internal perception of

'law'.

- For those who do not accept the rule of recognition as their guidance will
say, ‘ whatever the Queens of Parliament have passed is law in England,'
but those who accept the rule of recognition will say ‘the law
prescribe…’

- The ones who possess the internal perception will use the rule of
recognition as the criteria of authority without any further explanation,
but for those who have an external view are just on-lookers, stating the
fact that others accept the rule of recognition.

- And this is where the concept of ‘validity’ was introduced. ‘Being valid’
is a frequent description in an internal view, in which people would
accept it and use it in the operation of the legal system, but rarely
announce it.
- Nevertheless, it should demarcate between the concept of ‘efficacy’ and
the concept of ‘validity.' They are not necessarily linked together. Some
rules may be disregarded by people, or seldom be enforced by officials,
but that doesn't mean that the rules are invalid. They are stillbe part of the
legal system, identified by the rule of recognition.

- The relationship between ‘efficacy’ of law and ‘validity’ of law:

 People who possess internal perspective of their law will say ‘the
law is valid.' The statement is based on the law which is mentioned
is efficacious in the legal system, in which can be observed from an
observer.

- That means the efficacy will be the background or the cradle of the
validity of law, but they are not the same.

- Objection to the Han Kelsen’s assertion:

 Hart objected that if the theory of prediction, either which says laws
are the indication of what the courts will enforce, or which laws are
the indication of what the officials will follow, is an elusion of the
internal perspective of law- the recognition of the validity of law.

 If putting what Han Kelsen said into the context, of which a judge
sentences a man,' the law is valid.' The defect will become clear. The
judge is not to predict what the efficacy which the law he will
impose on the man will have, but he use the law as his REASON to
sentence the man.

- If we were tracing back the rule of recognition, there must be an ultimate

criterion. The ultimate criterion would be known as the supreme criterion.
Nevertheless, it is very confusing when it compares with the notion of
‘unlimited’ legislative power, because, mostly, they are concomitant.

- To solve the problem – when and why they can be separated, the concept
of ultimate criterion must be investigated.
 The problem of ultimate criterion:
- The ultimate criterion, just as ‘ whatever the Queen in Parliament has
enacted is law,' is a kind of fact.

- Hart rejected all the proposal, suggesting the ultimate criterion is a kind
of assumption, postulation, or hypothesis. He says they are all confusing
statement.

- Hart said the ultimate criterion is indeed, in some extent, presupposed,

but the reason is that all lawyer, judges, or the masses, always lives in
such a way of legal operation day by day. This is not proffered, because it
assimilated into the practice of reality. It is a kind of background of the
operation of a legal system.

- The critique that the ultimate criterion can't be proved is not a good
statement, because, again, it doesn't fit into the context. The validity of
the ‘ultimate criterion' is a statement by the view of those who possess
internal perspective. However, it is the factual practice in daily lives. Hart
said it exists because it was accepted by most people as the range of the
subject of the law.

- The factual practice is embedded in the operation of official, judges, and

lawyer who possess internal perspective of their law.

- Therefore, Hart proposed that saying a law exists is not just a mere
external outcome from an observer. It also bears an internal statement,
which means that the law was universally accepted, but have not been
clearly stated. Such acceptance is a fact, and the form of its existence is in
the practice of the courts, official, and private persons in identifying the
law, which yields to the background of such existence.

Personal criticism: why people would accept the rule? That is the question which Hart
did not touch. And it will be the loophole of his theory.
 The new question:
- Nonetheless, Hart proposed two new questions after the identification of
the ‘ultimate criterion.'
1.) The first question is the problem of classification:

The ultimate criterion is not a convention, and it is not a rule.

However, he reminded us that it should be thought in two senses. It is
both a law and a fact, as only is it seen in this way, it will reveal the
true nature as being a demonstration from an external perspective, and
being a law, which bears validity in the legal system, from an internal
perspective.

2.) The second question is the nature of the existence of a legal system in
a sovereign.

As it can be seen that a legal system is an aggregate of primary and

secondary rules, Austin's model will not be a true nature of a legal
system. Saying that a legal system exists in a sovereign will not take
account on the nature of the relationship between the subjects and the
law, but also fail to demonstrate the relations between the secondary
rule and the officials, and the judges who use the law day by day.

The word ‘obedience’ fails to elucidate the phenomenon of

enactment, identification, and usage of law. The fact that judges and
officials failed to follow the rule to create law is not a defiance of
rules but is a non-performance of creating law.

Henceforth, to assert that a legal system exists must satisfy two

conditions:
i. The ultimate criterion must be universally accepted and obeyed.
ii. The secondary rules must be universally accepted and used as
the justification to form a consensus among officials and judges.
 The pathology of a legal system:

- The most usually circumstances are revolution and conquest. It is because

most people would not obey the rules which were recognized by the
ultimate criterion, or the official would not accept the rules anymore. The
former is internal; the latter is external.

- Another example is 'colony.' When a colony is independent of his parent,

the rule of recognition which was the same as his parent, will no longer
be the same. It has his independent set of the rule of recognition. There
could give rise to two situations. One of which is there are two
independent legal systems; or a situation, in which the parent, owing to
unilateral political sentiment, refused to accept there is two independent
legal system as the truth, still asserting there is only one legal system in
law. That is the distinction between the legal statement and a statement
based on reality.

- The third example is in Harris v Donges, in which the legislative officials

were in deadlock with the executive officials. There is no consensus
among them and cause a constitutional crisis. This is the pathology of the
legal system.

(end of chapter 6)
Chapter 8 justice and morality

- Hart thought that it is not the system of primary and secondary rules that
provide the essence of law. This notion is just providing a power
explanation. Rather, the essence of law is the link between the ‘law' and
the ‘morality.'

- There are different proposal to illustrate the nature of the link between
law and morality. The most lucid explanation was offered by St Thomas
Aquinas, who said:
1.) there must be certain principles of true morality or justice,
discoverable by human reason without the aid of revelation.
2.) Man-made laws which conflict with these principles are not valid law.

- Those who support that the necessary link did exist said:
1.) The conflict between the law and morality will not be able to strip off
the legal status of a moral rule
2.) The feeling of moral obligation, in some cases, may be more intense
than that of legal obligation.

- Hart wants to avoid the investigation of the philosophy of morality. He

wanted to describe the basic characteristic which distinguishes morality
and law.

 The principle of justice:

- Just and unjust cognate with fair and unfair.

- It relates to:
 how classes of people have treated
 the issue of compensation or redress.

- The derivative of application of justice applies to the matter of judgment

and legal process.
 (follow what Dr. Adam Gearey summarised)

 Moral ideals and social criticism:

- Moral obligation and duty are the bedrock of social morality, but they are
not the whole.

- Those above are the four disparity between morality and law in term of
their formality. However, they did not directly indicate that it is essential
to connect rules with morality, nor to any purpose which they must serve
in social life.

- For the sake of survival, some rules will require persons to sacrifice their
interests. This is a necessary cost. The protection they afford is the
minimum which makes a living with others worth while. These simple
facts constitute a core of indisputable truth in the doctrines of Natural
Law.

- Some moralists aim at making a definition on morality. They think that

social rules will not be moral if they cannot survive in rational criticism
based on general human interests as a starting point.

- Hart said it wouldn't be helpful, as morality may take different forms, and
if we scrutinize them with a narrow perspective, in contrast with the
wider perspective which are the social rules which can pass those four
criteria, that will engender unnecessary distinction between them. It is
because those rules which were considered immoral will be respected by
another group of people or in other society.

- Nevertheless, one thing is important. Morality means not merely the duty
and responsibility which people in a society would accept, but also
implies other aspects:

1.) Moral ideal： some heroes and saints acts more than their

duties required
2.) Satisfaction of the social institution: it will contain two
principles:
 a) Rationality: social institution should not be built on
mistaken premises and assumption
b) Generality: morality should protect people from harm,
and should generally applicable to those who are
willing to conform.

- Hart said there is no reconciliation between different form of morality,

and one of the great justifications of democracy is that it permits
experimentation and a revisable choice between such alternatives.

- Moreover, hart reminded us that morality has it private aspect, because

the values pursued by individuals are at least analogous to some of those
recognized in the morality of their society. However, the analogy is not
one of content, but one of form and function. Derivation of the ideal will
also receive a sanction.

(end of chapter 8)
Chapter 9 law and morals

- It is the nub of Hart’s theory. He demonstrated the reason why the link
between law and morality is contingent, rather than necessary.

 Natural law and legal positivism:

- Law and moral have a different type of relation. It is inappropriate to
choose one type of relationship as the only answer to the link between
law and morality.

- Hart conceded that it is hard to deny there is a link between them.

Evidence shows that the law has been being influenced by society and
moral ideal of their relative epoch.

- However, Hart said it should not be the reason to justify that there must
be a necessary link between moral and law or a situation that a legal
system must be entrenched in a generally acceptable moral idea.

- Moreover, it does not follow that the criteria of legal validity of particular
laws used in a legal system must include, tacitly if not explicitly, a
reference to morality or justice.

- Apart from that, there are still problems.

- Hart articulated one of the problems is the issue between Natural Law
and Legal Positivism.

- Legal positivism contends that it is not a necessary truth that laws satisfy
certain demands of morality, even though they have often done so.

- Hart also postulated the Natural Law arguments were refuting the
assertion by Legal Positivism.
1.) The principle of human conduct: the Natural law states that
there are certain principles which will be discovered by human
rationality. Therefore, a law should conform to these
principles, to be valid.
2.) Legal validity and moral value.
- Hart gave the example of the criticism of Mills on the assertion by
Montesquieu. He used the example to rebut that the first argument of
Natural Law. He said they confound the law regulating the Mother Nature
and law applying on men. The former is descriptive, and the latter is
prescriptive.

- He elaborated that the doctrine of Natural Law is part of the older

conception of nature. The conception of nature views that everything
exists not only for the sake of self- preservation but also with the aim of
attaining optimum state as an end or the specific good. It is the
teleological conception in Natural Law.

- Nevertheless, the teleological conception conflates the notion of what

happens with the idea of what ought to happen.

- In the view of teleological conception, “the optimum state is not man’s

good or end because he desires it; rather he desires it because it is already
his natural end.” It is what is asserted by Natural Law.

- Hart said that teleological conception permeated in the thought about

human action. He posited that there is an assumption in these thoughts –
self- preservation. It becomes the common factor of law and morality in
all society.

- He claimed that societies would have different social controls which

engendered from this factor.

- Lastly, he conceived the factor as ‘minimum content of natural law.' He

said it stems from the five characteristics of human nature.
 The minimum content of natural law:
- Hart proffered that the motivation of self-preservation become the
essence of the link between law and morality.

- He later discredited the view of Natural Law that the causal relations
between natural conditions are not mediated by conscious aim or
purposes. It is because conscious aim or purposes are REASONS, but the
connections of the natural conditions are CAUSAL LINKS. That is why
the view of Natural Law obscures what happens and what ought to
happen.

- Hart, at this time, distinguished the nature of causal links and the nature
of the link between law and morality.
1.) Human vulnerability: men are both occasionally prone to bodily
attack. Therefore, rules protect them from physical harm by using
negative form of statements.

2.) Approximate equality: even though there are varieties between

individuals in term of intelligence or physical strengths, it is true
that no one is powerful enough to dominate or subdue others
without any collaboration for a long time. As a result, rules will
require there should be a system of mutual forbearance and
compromise which become the basis of law and morality.

3.) Limited altruism: provided the fact that survival is the aim and the
nature of men which is between devil and angel, mutual
forbearance is necessary and possible. Therefore, limited altruism
is necessary.

4.) Limited resource: since resources are limited, it is, therefore,

indispensable that there should be some form of the institution of
property, and rule which requires respect for individual property.
It also depends on minimum mutual forbearance.

5.) Limited understanding and strength of will: people would have

different considerations for obeying the law. The understanding of
the law will not be equal. Some people would even attempt to
violate the law. That is unjust to those who are willing to comply
 with the law. Sanction and punishment, therefore, required not as
the normal motive for obedience, but as a guarantee that those
obeying the law will not be sacrificed to those malefactors.

- Hart said the simple truism above revealed the core of the doctrine of
Natural Law and explained why it is inadequate if defining the basic form
of law and morality without the reference of its context.

- He then elaborated more that the reason is it can avoid a misleading

dichotomy- yes or no. The answer of the dichotomy does not reveal the
truth.

- He added that sanction is possible and necessary with regards to the

natural fact and the aim of survival of human beings. Therefore, it is the
natural necessity.

- The answer is applicable to positivists who proffered that ‘law may have
any content.'

- However, he finally commented that ‘natural necessity’ is contingent on

human beings and the world they live, but not logically necessary.

 Legal validity and moral value:

- It is the section which Hart aims at defending his ‘minimum content of

natural law.'

- The protections and benefits are extended to a very different range of

persons.

- Some people get protection, but others do not.

- Even though all modern states accept the principle of justices and
morality, at least in paying lip-service, justice often does not cover all
people. It will cause injustice, and regrettably, it usually happens in
reality.
- Moreover, the coercive power and authority of law and government can
only be established with the voluntary cooperation of people.

- However, the coercive power, which is established by authority, may be

used in two ways:

1. Punishing the offender, or;

2. Maintaining the status of dominion by suppressing the inferiority.

- Therefore, it reveals the two facets of a legal system as a social

phenomenon:

1. Internally accept the rule

2. The simple attitudes and behavior involved in obedience or
acquiescence.

- It corresponds to the primary and secondary rules of a legal system.

However, Hart said the transformation from a primitive society which
only has primary rules as the means of social control, to the modern
society, has its cost. The cost is a central organization, which could be
used for oppression.

- He defended that if someone wants to assert that law should conform to

morality in addition to the minimum content of Natural Law, the
arguments they proposed should be perused.

- He maintained that it happens because they do not know the exact

meaning of what ‘necessary link’ is, or misunderstand some truths as the
necessary link between law and morality.

- He finished the chapter with six comments:

1.) Power and authority: the coercive power and the authority
established must rely on voluntary acceptance of some people.
Even though there are different calculations among people to
respect and accept the law, it would not be the case that some
rules must be moral, to be accepted as the laws in the legal
 system.

2.) The influence of morality on the law: laws were tremendously

influenced by morality. A statute may be a mere legal shell, and
it demands, by an express term, to be filled out with the aid of
moral principles. That means morality could be an additional
device on a statute. Such relations could maintain the stability of
the legal system.

3.) Interpretation: morality cannot always be the clear answer to

the situation, where the question of open texture occurs. The
judge will interpret the law with consideration of all the interests
involved, the boundary of laws. It is what judicial virtue
required.

4.) The criticism of law: some people would think that a good legal
system should rest on a certain point, which satisfies the
requirement of justice and morality. They think that is a truism,
but Hart disproved that morality have ambiguous meaning, and
some immoral rules perennially exist.

5.) Principles of legality and justice: Hart does not concur the
distinction between a good legal system and a bad legal system,
according to the standard of whether the legal system rests upon
morality and justice at a certain point or not. He thought that a
minimum of justice must be realized when human behavior is
controlled by general rules publicly announced and judicially
applied.
6.) Legal validity and resistance to law: Austin gave a famous
comment, ‘the existence of law is one thing; its merit or demerit
another.' Hart offered two perspectives to illustrate why the link
between morality and laws is contingent.
 The broader concept of rules: includes primary and
secondary rules
 The narrower concept of rules: only contain rules which
conform to morality, and reject any rules which do no
not.
 The disadvantage of using the narrower concept of rules:

1.) confusing the officials who have to comply with them.

2.) Creating a dangerous situation, in which the perception of

morality and justice which a society recognizes will replace
the authority of law. The example could be the enactment of
some retrospective laws to punish those whose act is
permitted by law previously but is forbidden by the current
law.

3.) Reducing the diversity of law:

4.) It is because the narrower perspective of rules will exclude

secondary rules which are not duty-imposing.

 The advantage of using a broader concept of rules:

1.) It can clearly show the complexity in distinguishing legal
validity from morality

Comment: Hart still focused on the content of morality and law. He maintained that
the link is contingent because it is a causal relation, not purposive reasoning. Causal
relation does not involve human consciousness and intention, but a conclusion from
sociological observation.
(addition)
Perry on Hart’s methodology
- Stephen Perry has written an influential article on hart's methodology in which he
takes the line that Hart's theory cant be purely ‘neutral’ & ‘descriptive,' as Hart
maintained in his postscript

- Perry argues there is a difficulty in Hart's use of a descriptive-explanatory

approach implicit in Hart's Preface.

- Under this methodology, explanatory power is determined by meta-theoretical

criteria, e.g., predictive power, coherence & an attempt at covering all available
phenomena. Hart appears to be attempting this, e.g., when he self-describes ‘ the
concept of law' an ‘ essay in descriptive sociology.'

- Perry rejects this sort of method saying hart instead relies on ‘ evaluative
judgments’ in his choice of a central case of law hart privileges the modern
municipal legal system & so hart's claim to generally is lost.

- Further, a description could only explain why people regard themselves as under
obligations but not why they are under obligations.

- If the aim of description is accuracy, then it should report inconsistencies &

different views about what obligations people are under, but these too can only be
understood by addressing the central question of whether people are under
obligations

- It requires moral argument, not just a description of ‘ how things are.'

Perry thus concludes that an internal account is required to understand the normativity
of law ( the rule-governed nature)

(end of chapter 9)