THE CONCEPT OF LAW BY HART

Hart- Prof of Jurisprudence at Oxford, was a leading figure in the post-war movement for
the revival of interest in the philosophy of law in relation to the much wider field of
general philosophical enquiry.
Hart interested particularly in the development of the doctrine of legal positivism
and set out his view of the fundamentals of a legal system in ‘The Concept of Law’.
Hart viewed law as a social phenomenon/social control and its study involves the
recognition of the ‘characteristics of human condition’ i.e. human vulnerability,
approximate equality; limited altruism (human altruism is limited); limited
resource; and limited understanding and strength of will. These five
‘characteristics of human condition’ Hart refers to it as the ‘Minimum Content of
Natural Law’. However, he made it very clear that it is devoid of any moral
philosophy.
Hart rejects the command theory for not revealing certain distinctive features of law
and legal systems. Hart wants to start a ‘fresh start’. He does it by positing a theory
which claims that the quintessence of law and legal system could be understood by
a ‘union of primary and secondary rules’. This is Hart’s key to the Science of
Jurisprudence.
Meaning of Legal Positivism:
Legal positivism is used to signify a doctrine which rejects any metaphysical speculation
concerning law. In other words, it is considered as a view of law which takes into account
the positive law only i.e., law as it ‘is’ and not law as it ‘ought’ to be.
The term ‘legal positivism’ can best be summarised by this statement: “The existence of
law is one thing; its merits and demerits another...”
As to the connection between law and morality, Hart insisted that the connection was not
a necessary one. Law can still exist without morality. Law can be moral, immoral and
amoral. Legality is one thing; morality is another. (See Nazi-Germany laws from Hart’s
perspective)
Hart’s Nature of Legal Theory:
“what is law”. To this, Hart identifies three recurrent questions which are related to law:
(i) to what extent is law related to coercion- Hart rejects that citizens obey the law
simply out of fear or habit. According to him, in a developed society, people obey the law
out of the a sense of obligation. Thus, he replaced the idea of command (attributed to
Austin) with the idea of a rule.
(ii) to what extent is legal obligation different from moral obligation
(iii) to what extent is law an affair of rules- Hart saw ‘law’ as a means of social control
that is to say law is purposive in that it seeks to regulate societal relationships and it is
also normative in that it is seen as a standard behaviour. He thus, replaced the idea of
command with the idea of a rule. This is because a rule is broader than the concept of
command

Hart on the Role of Language:

Hart argues that there is an appeal to linguistic philosophy in trying to understand the
term ‘what is law?’ It is arguable that Hart’s ‘piecemeal’ identification of law as a
‘concept’ overcomes the deficiencies of its rival methodology (empirical definitions).For
example, we able to distinguish the difference between ‘being obliged’ and ‘being under
obligation’. Hart gave two examples i.e., coercive order, that is made by a bank robber to
a bank clerk to hand over money upon immediate pain of being shot. To Hart, the bank
robber has no authority over the clerk. The other example is that a tax demand made in
pursuant to law or by the Inland Revenue or an equivalent agency. To Hart, the demand is
made with authority. So, to Hart, ‘being obliged’ involves the actual or predictable
application of compulsion. On the other hand, ‘being under obligation’ involves a
concept of duty whether or not any ‘sanction’ can reasonably be expected to be applied.

Regardless of the attack on Hart’s linguistic philosophy, Hart stated that, in law it is
possible to know but not to understand. Hart tried to help our understanding of law by
elucidating on the concept and discussing the basic characteristics of rules. These
characteristics are (i) legitimacy and authority, (ii) normativity/bindingness, (iii)
continuity, and (iv) the internal point of view.

His work in analytical jurisprudence is marked by his distinction between rules and
habits, rules and command, and rules and morals. However, Hart was aware of the limits
of formal analysis and the dangers of simplistic definitions. Thus, in his thesis, he pointed
out the following:
(a) He refused to define ‘law’ because the complex phenomenon of ‘law’ does not
permit simple definitions.
(b) He tried to define rules and concepts by reference to their functions and their
context. This means that he combined formal analysis with sociological, functional
and contextual studies.
(c) While promoting analysis and seeking certainty in legal expressions, he readily
conceded ‘the problem of open texture of legal language’. The open texture gives
judges wide discretion to interpret law creatively.
(d) He talked of the paradigm and the penumbra. There was a core of a settled usage
in the paradigm. He criticised the Realists for their exaggeration that law has no
fixity and certainty. According to Hart, even words like ‘reasonable’ and ‘negligent’
have a core of settled meaning. But the problem of uncertainty in the penumbra was
accepted. This uncertainty and open texture is a blessing, not a curse, it enables
growth and change in creativity.
On the question of validity of law, Hart talked of the “wider” or “narrower” way of
looking at rules. He favoured the wider way which would accept moral as well as
immoral rules if these had gone through the legal filter.

Hart’s View on the Term ‘Law’:

Hart refused to use the word ‘law’ because jurists cannot agree on its meaning. He
wanted to avoid the danger of adopting a wrong definition of any concept. To him, it is
impossible to find a class or family of meaning (genus) to which law belonged.
Hart stated that to define the term ‘what is law’, would be by way of making reference to
linguistic philosophy. To Hart this could be done by comparing the possible usages of the
word, placing them in different contexts and different sentences i.e. observing the usage
of ‘normative language’ e.g. “But you promised”- which shows that a rule exists which
justifies keeping of promises. It is not merely predictive; “You better not park your car
near the yellow line” or “stop, on the light turning red”. All these according to Hart
implies acceptance of certain correct standards of behaviour (rules).
Hart also tried to come up with a distinction which formulate the cause of ‘nature and
laws’ which governs the conduct of man. Hence, Hart perceive the difference between
‘science and law’ through linguistic practices.

Hart’s Idea of Viewing ‘Law’ as a ‘RULE’:

According to Hart, the basic failure of Austinian model is its neglect of a concept of a
rule. Hart argued that to understand the foundations of a legal system, rather than an
account based on habitual obedience to the commands of unlimited sovereign, a
necessary insight will be that laws are a specifies of rules and ultimately the foundations
of a legal system will be based on the acceptance of a fundamental rule.
Hart replaced the idea of command (attributed to Austin) with the idea of rule. This is
because a ‘rule’ is broader than the concept of command e.g. a rule has elements which
command may not have i.e. the ‘internal point of view’, the obedience in the absence of
fear etc.

According to Hart, social habits are not rules. Social habits possess only an ‘external
aspect/external point of view’
Social rules- are of much greater significance in an analysis of what is meant by ‘law’.
When a social rule is broken, criticism will almost invariably result, because a fault has
been committed. Such criticism is generally regarded as warranted, not only by those
who make it but also by the person who is criticised. In other words, for ‘social rule’ to
exist, at least some members of the group must be aware of the existence of the rule, and
must strive to see that it is followed, as a standard, by the group as a whole. If something
is a ‘social rule’, then we find that such words as ‘ought’, ‘must’, ‘should’ are used in
connection with it. Thus, ‘social rules’ possess both ‘external aspect’ and ‘internal
aspect’.
Hart viewed ‘social rules’ as of two kinds and they are: (i) Mere social conventions e.g.
As exemplified by the rules accepted as describing appropriate behaviour in, say, a place
of public worship. Other examples are rules of etiquette. These are more than habits, as a
group strives to see that the rules are observed, and those who break them are criticised.
(ii) Rules constituting obligations- are considered essential if the character and quality
of a community’s life are to be maintained. An example is the set of general rules
forbidding theft. The rules relating to obligations are what we understand by ‘law’. Rules
of this kind often involves some sacrifice for the benefit of the others in the society.
According to Hart, rules which constitute ‘obligations’ may be divided into two
categories and they are:
(a) Rules which form part of the moral code of the society concerned. These rules are
therefore moral obligations. Such obligations may be wholly customary in origin. There
may be no central body responsible for punishing breaches of such rules, the only form of
pressure for conformity being a hostile reaction towards a person who breaks the rule.
(b) Rules which take the form of law- even if a rudimentary of primitive kind of law. A
rule will come into this category if the pressure for conformity includes physical
sanctions against a person who breaks the rule-even if the sanctions are applied, not by
officials, but by the community at large.

Primary & Secondary Rules:

• Primary rules are generally duty imposing. These resemble criminal law which
restricts acts of violence (murder, battery, rape etc), acts against property (theft,
robbery, criminal trespass etc). In other words, primary rules of obligation generally
concern requirements to perform, or abstain from, specified types of activity (rules
of obligation or duty). Hart argues that if a society is to operate solely on the basis
of primary rules, certain conditions arising from human nature and the very world
in which we live would have to be satisfied.
Furthermore, Hart argues that there are certain defects of a system solely based on
‘primary rules’ The defects are: The defect of uncertainty: the rules will not form a
system, but will simply be a set of separate standards, without any identifying on
common mark. Hence, if doubt is to arise as to what rules or as to the precise scope
of some given rule, there will be no procedure for settling this doubt, either by
reference to an authoritative text or to an official whose declarations on this point
are authoritative.
The defect of static rules, the community would remain static e.g. any form of
change is slow. This is as a result of a very slow process of growth or by a gradual
process of decay. Every member of the society must accept the new rule which is
impossible. In other words, it would be very difficult to adapt the rules so as to fit
changing circumstances.
There is also the defect of inefficiency, which is considered as the most serious
defect of all. This would arise as a result of disputes as to whether an admitted rule
has or has not been violated. Thus, they would be no means of settling disputes as
to whether rules have been broken. In other words, the lack of agency specifically
empowered to ascertain authoritatively and finally whether or not a rule has been
violated is an extremely serious defect of system comprising only of primary rules.
• ‘Secondary rules’ are ones which let people, by doing certain things, introduce
new rules of the first kind, or alter them. They give people (power to introduce or
vary the first kind of rule. In other words, secondary rules are power conferring.
• Hart argues that the defects of the primary rules-only system may be remedied by
the introduction of a system of secondary rules which will act as supplement to
primary rules. These secondary rules are ‘parasitic’ on the primary rules and will
allow members of the community, by performing actions or saying things, to
introduce new types of primary rules, modify old rules and control the operations
and effects of primary rules.
• secondary rules into three categories i.e. rule of recognition, rule of change and
rule of adjudication.
a) Rule of Recognition
It is the ultimate rule that determines the existence and validity of all other rules
 in a legal system. In other words, it is the heart of a legal system. For example, the
‘rule of recognition’ describes what usually officials understand as the ‘sources’
of law.
The ‘rule of recognition’ identifies the law. Thus, to Hart if a society has a ‘rule of
recognition’ then it has a way of determining whether law is valid.
The ‘rule of recognition’ resolves problems of uncertainty in primary rules.
The main features of a ‘rule of recognition’ are:
(i) it is a rule and so there is a standard there, to be observed;
(ii) that standard must be accepted by all officials and might be accepted by the rest
of the community;
(iii) the existence of a rule of recognition is a question of empirical fact in each
community and there is no requirement that an official ought to accept it;
(iv) the rule of recognition is the ultimate rule of the system in that it is the final test
of validity of a legal system’s rules; and
(v) a legal system exists when (a) a rule of recognition exists and (b) the rules that it
validates are generally effective within the jurisdiction marked out by the rules.

b) Rule of Change
This rule confers powers to legislators, judges and officials to amend, repeal, enact
new rules.
c) Rule of Adjudication
It is a rule conferring power on judicial officials to adjudicate on disputes and
breach of law. In other words, it is a rule setting out standards for determination by
courts of the instances, extent and the commensurate punishment or compensation
for any breach of law.
The ‘rule of adjudication’ also enables compliance with rules conferring power to
for example the police to maintain law and order. It also specify certain procedures
in which adjudication is to take place. (See the relevant statutes i.e. CPC, Evidence
Act 1950 etc)
Criticisms on Hart’s Distinction of Primary and Secondary Rules:
Cohen argues that the ‘rule of recognition’ does not always confer powers. He claims that
the main function is mainly to ‘identify’, to ‘make it clear’ or to ‘determine the scope of
certain rules’.
Certain secondary rules are duty imposing in nature such as; Hughes argues that the ‘rule
of recognition’ could be said to impose duties upon judicial officials to exercise their
adjudicative powers by applying laws satisfying certain criteria. Rules of adjudication
also imposes duties as well i.e. the rules of adjudication such as ‘exclusionary’ rules of
hearsay, rules on admissibility of a confession etc
Hacker briefly pointed out that secondary rules could be about secondary rules as well.
For example, the ‘rule of recognition’ identifies the law and so the ‘rule of recognition is
logically prior to the ‘rules of adjudication’. In other words, the ‘rule of recognition’
cannot be subsumed under ‘rules of adjudication’.
Defend: Hart merely wanted a ‘very loose’ and ‘general’ classification of rules. He is just
appealing to the ‘uncontroversial’ fact that we do indeed think of laws as consisting of
primary and secondary rules. This unrigid classification is clear when Hart says that he is
merely ‘distinguishing certain laws under the very rough head of laws.

Hart on Morality:
Hart claims that there is no necessary connection between law and morality. However,
this does not mean he has no view on morality. In ‘Liberty, Law and Morality’ Hart
discusses the role of morality in law creation (i.e. human rights enshrined in constitutions,
equitable principles applied by judges and Fuller’s 8 principles of legality are examples
of morality inherent in law). Hart subscribes to paternal morality (to save people from
harm) and does not approve conventional morality as propounded by judges like Lord
Devlin.
Hart came to the conclusion that:
(i) there are different degrees of importance for moral rules, single standard for legal
rules (valid/invalid).
(ii) Immunity to change for moral rules which gradually fades away with disuse. Legal
rules however can be repealed or created at will.
(iii) Voluntary nature of moral rules. Legal rules, however, are mandatory.
(iv) Moral pressure for moral rules, sanctions for disobedience of legal rules.

As to the connection between law and morality, Hart insisted that the connection was not
a necessary one. The connection was casual and not causal. Law can exist without
morality. Law can be moral, immoral or amoral. Legality is one thing; morality is
another. According to Hart, identification of law or determination of its validity is a
formal exercise wholly dependent on the ‘rule of recognition’. The rule of recognition
can be moral, immoral or amoral. Likewise primary rules may be morally neutral.
Nevertheless in his engaging debates with Lon Fuller, Hart conceded the importance of
morality to the law. Thus, at a thousand and one points law and morality intersect.
Morality exerts a strong influence on many aspects of law and the legal system.
Although Hart talks like a positivist, there are strong moral elements in Hart’s theory e.g.
viewing law as a means of social control and emphasising the internal aspect of rules and
reject any explanation which rest law on orders, threats, obedience and habits. To him,
law rests on an attitude or behaviour involving voluntary acceptance of the rules. Such
voluntary acceptance may be motivated by many considerations including the moral
worth of the law.

All that Hart suggests is that given survival as the aim, law and morals should
include a specific common content.
USA the written constitution can be construed as the dominant feature of the ultimate rule
of recognition. The constitution is mostly a moral code containing principles of justice
and morality. As such, the rule of recognition is essentially a moral rule. Hart asserts that
no positivist would deny the connection between law and morals.
Morality influences the interpretation of laws.
other examples are: (i) the internal point of view which refers to the obedience of ‘rules’
in the absence of fear. Hart’s idea of the IPV is not a wholesale moral idea but partakes of
moral considerations.
(ii) the difference between legal validity and duty to obey laws. Hart accepts that at the
foundations of a legal system, the idea of legal validity and the duty to obey the law
cannot be based on threats or habits of obedience. According to Hart, if a system of rules
is to be imposed by force, there must be a sufficient number who accept it voluntarily.
Without voluntary cooperation thus creating authority the coercive power of law and
government cannot be established. A legal system must rest on a moral sense of
obligation or on the conviction of the moral value of the system since it does and cannot
rest on mere power of man over man.
(iii) the defiance of unjust laws. Hart argues that the certification of something as legally
valid is not conclusive of the question of obedience. Like Fuller and Finnis, he leaves the
door open for defiance of laws which fail to satisfy the requirements of justice and
morality.
(iv) the stability and continuity of a legal system. Hart concedes that stability of a legal
system depends in part upon correspondence with morals.
Hart also argues that likewise on issues like recognition by officials of the ‘rules of
recognition’, interpretation and administration of the law by state officials, he openly
acknowledged the influence of morality. Hart admits that in the penumbra judges may be
guided by moral standards.
All in all, although Hart is viewed as a positivist, it is very clear from the discussion
above that there are some moral elements in his theory.

Hart’s Descriptive Sociology:

(a) Formal Test of Validity: According to Hart, law is law because of enactment, not
because of morality. The test of validity is a formal test, that is, whether the rule has
gone through the recognised and accepted rule of recognition of the legal system.
Thus, Nazi law is law despite its immorality. Morality is not relevant to
identification of law. It plays a role only in relation to issues in the time frame of
continuum.
(b) Rule of Recognition is a Social Fact: The rules of recognition are (or the ultimate
rule of recognition is) an empirical social fact and not a postulate as in Kelsen.
Validity is a matter of descriptive sociology, and not a matter of morality, history,
etc. Hart disagrees with morally inspired decisions of the German Courts in cases
such as the Grudge-Informer case. He rejects ‘lex injusta non est lex’ (unjust law is
not law).
(c) Natural Law can be derived empirically: The theory of natural law is based on the
five facts of human condition and not on values or presumptions of the good and
just. Hart uses the word ‘natural’ to mean that which reflects man’s physical, social,
biological and psychological make up.
(d) Context determines Content: Hart accepts that concepts do not have an objective,
fixed, universal meaning. Words and concepts must be understood in their societal,
hermeneutic context. Hart disagrees with Dworkin’s attempt to give words a
“morally charged” interpretation. He rejects Dworkin’s approval of Riggs v Palmer-
a person shall not profit from his own wrong in which the court balanced the maxim
against the formal rule that a person may inherit under a valid will (considering the
actions of a legatee who killed a testator so as to prevent a revocation of the will).
(e) Settled Usage: The idea of ‘a paradigm of settled usage’ seeks to discover the agreed
 or accepted ground of legal practice.
(f) Rights are derived from law: Legal rights are derived from actual existing law. They
are not inherent. For example, rights to enter into a contract, make a will, etc.
(g) Jurisprudence should be descriptive, not prescriptive: Unlike Dworkin. Hart says
that he is seeking to describe legal practice, not to direct it in particular directions.
(h) General Jurisprudence: Hart’s theory is general i.e., not tied to any particular legal
system. Unlike Austin, Hart is neutral as between democracy and dictatorship.
(i) Certainty & Predictability: He denies Dworkin’s assertion that the primary purpose
of judicial practice is to justify (from a moral point of view) the application of
coercion to human beings against their will. The primary purpose of legal practice
is to make the law certain and predictable and to separate law from matters of
personal conscience. Thus, the introduction of secondary rules was meant to
achieve aims different from the justification of the coercive powers of the state.

Critics also pointed out that Hart’s work contains definite normative elements based on
the following arguments:
(a) Criterion of Validity: The choice of the criterion of validity can never be neutral.
The statement that ‘judges accept this rule as law’ may be a descriptive statement.
(b) There are no objective facts: Dworkin points out that positivism is not descriptive
but interpretive.
(c) Belief that certainty is desirable: The purpose of making law certain by referring to
authoritative rules of recognition is normative in nature.
(d) Not taking sides amount to taking sides: The desire to be neutral is itself a form of
judgement. Neutrality is another form of engagement.
(e) Moral or priori judgements in Hart’s theory: The internal point of view, the idea of
legitimacy and authority, the idea of having an obligation as opposed to being
obliged are all normative in nature and partake of non-empirical and possibly moral
considerations.
(f) Accepted sources and hierarchies: Hart believes that (i) there are clear-cut sources
of law (pedigree); (ii) these sources exist in a hierarchy; and that (iii) municipal law
is a systematic unity. These are not facts. These are assumptions because it is
undeniable that non-rule standards exist independently of the rule of recognition
and they do play a role in judicial decision making. The sources of law are alleged
to exist in a hierarchy. In actual practice they compete with each other. The system
unity of the legal system is denied by the critics.
(i) Cotterral talking about Hart’s elucidation of rules as opposed to habits, point out
one of Hart’s departure from ‘descriptivity’. Hart says that rules are different from
habits by introducing a ‘correct standard of behaviour’ which is accepted as a
reason for compliance. The interesting thing is that Hart mentions the presence of
‘social pressure’ to conform, and ‘criticisms upon deviation from the rule- these
imbue his theory with a sociological drift. However, Hart’s failure to specify or
describe who or which segment of society assert this pressure or criticise makes
Hart’s distinction one grounded in ‘speculative philosophy’.
(j) Guest argues that the language of the law (linguistic philosophy) is itself
normative. The choice between the ‘wider conception’ (a positive theory) and the
‘narrower conception’ (a natural law theory) is, to Hart, ‘all presented as a verbal
 one’. Thus, Hart is not appealing to a description of how we actually think about
law (through the endorsement of linguistic philosophy) but that the way we actually
think of law is a good one. Hence, we should continue thinking of law this way.

Conclusion:
Hart’s view of the law is morally neutral. But it should always be remembered that
his contribution to jurisprudence should not be treated lightly especially in the areas
of legal validity and contents of law. For example, looking at ‘content of law’ from
Hart’s point of view, one would eventually conclude that there are some moral
elements in his theory although he was viewed as a positivist.