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H.L.A HART
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Hart set many of the terms of the debate on 20th century philosophy. Hart’s ‘The Concept of Law’
remains one of the most influential texts of legal philosophy in the English-speaking world. Hart
responded to his predecessors, Bentham, Austin, Kelsen, the American Realists and the
Scandinavian Realists in the eyes of many convincingly demolishing their accounts. From that
point he constructed his own influential account of law as a system of rules, socially practiced
rules.

The Legal System as a System of Rules-

• The law for Hart was a union of primary and secondary rules. Hart argued that law is the
union of primary and secondary rules.
• Primary rules impose duties on people to behave in certain ways. Secondary rules, by
contrast, pertain to the primary rules. Primary rules do not themselves settle which of them
meet the criteria of legal validity and thus are to count as primary rules in the first place,
or the solution in the event of a conflict between two or more primary rules.
• This is where the secondary rules assume significance. They lend an element of dynamism
to the legal system of which they are a part by permitting it to solve problems that would
arise were it to comprise exclusively of primary rules alone.
• Hart identifies three types of secondary rules: rule of recognition, adjudication and
change.
• Rules of recognition provide conclusive methods for ascertaining which primary rules meet
the criteria of legal validity. Rules of change enable and regulate the process of altering,
and repealing primary rules. Rules of adjudication empower some officials (courts) to make
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authoritative determinations of departures and violations. These three types of rule exhaust
the realm of secondary rules for Hart.
• Rules and Legal Obligation- As far as his account of legal obligation goes, Hart argues
that a legal obligation is a statement of what is required to comply with a rule. He seeks to
walk a tight rope between many pitfalls among them being extreme empiricism (like
Bentham, Austin, American Realists); metaphysical ambition, or profligacy, if you will
(like the natural lawyers); and obscurity (like Kelsen who struggled to tell exactly what the
nature of the legal obligation was).

Rules and Adjudication-

• Closely intertwined with Hart’s account of obligation and his criticism of American Legal
Realism is his theory of adjudication.
• His objective here again was to steer the middle path between two extremes. One
extreme saying there is really no law and whatever the judge does is law (the
American Legal Realists) which Hart called the nightmare and the other extreme
where all the judge does is merely apply the law at all times which Hart called the
noble dream.
• Hart argues that there are times when the judge applies the law. But then there could be
gaps in the law, in which case the judge makes law.
• Albeit Hart's ‘modified positivism' can be distinguished from the classical positivism in
certain ways, Hart agrees with “earlier legal positivists, specifically with the nineteenth
century jurist John Austin, on two points”. First, Hart agrees to begin his analysis of the
theory of law by “appreciation of the fact that where there is law, there human
conduct is made in some sense non-optional or obligatory”. Second, Hart stood by
Bentham, refusing to admit a connection between law and morality.
• In Hart's words, “though there are many different contingent connections between law and
morality there are no necessary conceptual connections between the content of law and
morality”.
• In his support for Bentham's separation of laws and morals, he proposed the ‘Separability
Thesis', which remains a central fort of his theory.
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• The ‘Separability Thesis' referred to the separation of law and morality. “This abstract
formulation can be interpreted in a number of ways”.
• On one hand, extreme positivists like Faber argue that the definition of law should be
completely free from morality, rejecting any moral consideration related to the concept of
law, legal validity and legal system. On the other hand, soft positivists like Hart believe
that whilst law does not necessarily “reproduce or satisfy demands of morality, in fact they
have often done so”.
• As Hart describes, although “a legal system must exhibit some specific conformity with
morality or justice, or must rest on a widely diffused conviction that there is a moral
obligation to obey it...[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”.
• Another proposition put forward by Hart is that law, as he sees it, is a system of rules. This
includes obligation rules, which impose duties or obligations.
• Obligation rules, as Wacks observed, can be separated into moral rules and legal rules. As
mentioned in the preceding section, when Hart attempted to refine the classical positivism
theory, he distinguishes legal rules between primary rules and secondary rules.
• According to Hart, many primary rules are also social rules. As presented in the last
paragraph, many people are adhering to the law for the function and success of the society.
Thus, it is arguable that these social rules carry a moral duty to observe the law.
• Nonetheless, Hart is opposed to the idea that such moral obligations have made them laws.
Rather, these primary rules must be combined with the secondary rules, which “specify the
ways in which the primary rules may be conclusively ascertained, introduced, eliminated,
varied, and the fact of their violation conclusively determined”, to be social rules laws
properly so called. From this, it is evident that Hart does rely on social rules in the
formulation of his theory.
• However, as Hart identified, there are three defects with primary rules in the simplest form
of social structure. Firstly, of the defect which Hart termed as ‘uncertainty', primary rules
by itself do not provide procedure to resolve doubts arose as a result of uncertainty over
what the rules are and the scope of the rules. The second defect arose a result of the rules'
‘static' character, where “there will be no means, in such a society, of deliberately adapting
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the rules to changing circumstances”. The third defect “is the inefficiency of the diffuse
social pressure by which rules are maintained”. The final defect arises when despite efforts
to catch and punish offenders; there is an “absence of an official monopoly of
‘sanctions'”. These defects led Hart to propose the secondary rules, consisting of rules of
recognition, rules of change, and rules of adjudication, to supplement the primary rules and
thus resolving these defects.
• On the defect of ‘uncertainty', Hart stated that it should be remedied by a ‘rule of
recognition', which “will specify some feature or features possession of which by a
suggested rule is taken as a conclusive affirmative indication that is a rule of the group to
be supported by the social pressure it exerts”. In classical era, this may mean “an
authoritative list or text of the rules... in a written document or carved on some public
monument”; in modern days, the list may refer to “some general characteristics possessed
by the primary rules”.
• Hart then went on to introduce the ‘rules of change' to remedy the ‘static' defect. In Hart's
words, “the simplest form of such a rule is that which empowers an individual or body of
persons to introduce new primary rules for the conduct of the life of the group, or of some
class within it, and to eliminate old rules”.
• Hart explained that “there will be a very close connection between the rules of change and
the rules of recognition: for where the former exists the latter will necessarily incorporate
a reference to legislation as an identifying feature of the rules”. Finally, the defect of
‘inefficiency' was countered by the ‘rules of adjudication'. This means that individuals
will be empowered to “make authoritative determinations of the question whether, on a
particular occasion, a primary rule has been broken”.
• Again, the ‘rules' of adjudication' has very close links with the ‘rules of recognition' for
“the rule which confers jurisdiction will also be a rule of recognition, identifying the
primary rules through the judgments of the courts”. As such, the concept of ‘rules of
recognition' is, in Hart's theory, vital to the existence of a legal system.
• The Concept of Law (1961) is an analysis of the relation between law, coercion, and
morality, and it is an attempt to clarify the question of whether all laws may be properly
conceptualized as coercive orders or as moral commands.
7|Page ANSHUL RAMESH

• Hart says that there is no logically necessary connection between law and coercion or
between law and morality.
• He explains that to classify all laws as coercive orders or as moral commands is to
oversimplify the relation between law, coercion, and morality. He also explains that to
conceptualize all laws as coercive orders or as moral commands is to impose a misleading
appearance of uniformity on different kinds of laws and on different kinds of social
functions which laws may perform.
• He argues that to describe all laws as coercive orders is to mischaracterize the purpose and
function of some laws and is to misunderstand their content, mode of origin, and range of
application.
• Laws are rules that may forbid individuals to perform various kinds of actions or that may
impose various obligations on individuals. Laws may require individuals to undergo
punishment for injuring other individuals. However, not all laws may be regarded as
coercive orders, because some laws may confer powers or privileges on individuals without
imposing duties or obligations on them.
• Hart criticizes the concept of law that is formulated by John Austin in ‘The Province of
Jurisprudence Determined’ (1832) and that proposes that all laws are commands of a
legally unlimited sovereign. Austin claims that all laws are coercive orders that impose
duties or obligations on individuals. Hart says, however, that laws may differ from the
commands of a sovereign, because they may apply to those individuals who enact them
and not merely to other individuals. Laws may also differ from coercive orders in that they
may not necessarily impose duties or obligations but may instead confer powers or
privileges.
• Hart as “primary rules of obligation” describes laws that impose duties or obligations on
individuals. In order for a system of primary rules to function effectively, "secondary rules"
may also be necessary in order to provide an authoritative statement of all the primary
rules. Secondary rules may be necessary in order to allow legislators to make changes in
the primary rules if the primary rules are found to be defective or inadequate. Secondary
rules may also be necessary in order to enable courts to resolve disputes over the
interpretation and application of the primary rules.
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• The secondary rules of a legal system may thus include 1) rules of recognition, 2) rules
of change, and 3) rules of adjudication.
• In order for the primary rules of a legal system to function effectively, the rules must be
sufficiently clear and intelligible to be understood by those individuals to whom they apply.
If the primary rules are not sufficiently clear or intelligible, then there may be uncertainty
about the obligations which have been imposed on individuals. Vagueness or ambiguity in
the secondary rules of a legal system may also cause uncertainty as to whether powers have
been conferred on individuals in accordance with statutory requirements or may cause
uncertainty as to whether legislators have the authority to change laws. Vagueness or
ambiguity in the secondary rules of a legal system may also cause uncertainty as to whether
courts have jurisdiction over disputes concerning the interpretation and application of laws.
• Primary rules of obligation are not in themselves sufficient to establish a system of laws
that can be formally recognized, changed, or adjudicated, says Hart. Primary rules must be
combined with secondary rules in order to advance from the pre-legal to the legal stage of
determination. A union of primary and secondary rules may thus establish a legal system.
• Hart distinguishes between the "external" and "internal" points of view with respect
to how the rules of a legal system may be described or evaluated. The external point
of view is that of an observer who does not necessarily have to accept the rules of the
legal system. The internal point of view, on the other hand, is that of individuals who
are governed by the rules of the legal system and who accept these rules as standards
of conduct.
• The "external" aspect of rules may be evident in the regular pattern of conduct which may
occur among a group of individuals. The "internal" aspect of rules distinguishes rules from
habits, in that habits may be viewed as regular patterns of conduct but are not usually
viewed as standards of conduct.
• Hart argues that the foundations of a legal system do not consist, as Austin claims, of habits
of obedience to a legally unlimited sovereign, but instead consist of adherence to, or
acceptance of, an ultimate rule of recognition by which the validity of any primary or
secondary rule may be evaluated. If a primary or secondary rule satisfies the criteria which
are provided by the ultimate rule of recognition, then that rule is legally valid.
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• There are two minimum requirements which must be satisfied in order for a legal system
to exist:
1. Private citizens must generally obey the primary rules of obligation
2. Public officials must accept the secondary rules of recognition, change, and
adjudication as standards of official conduct.
• If both of these requirements are not satisfied, then primary rules may only be sufficient to
establish a pre-legal form of government.
• Moral and legal rules may overlap, because moral and legal obligation may be similar in
some situations. However, moral and legal obligation may also differ in some situations.
• Moral and legal rules may apply to similar aspects of conduct, such as the obligation to be
honest and truthful or the obligation to respect the rights of other individuals. However,
moral rules cannot always be changed in the same way that legal rules can be changed.
• According to Hart, there is no necessary logical connection between the content of law and
morality, and that the existence of legal rights and duties may be devoid of any moral
justification. Thus, his interpretation of the relation between law and morality differs from
that of Ronald Dworkin, who in Law’s Empire suggests that every legal action has a moral
dimension. Dworkin rejects the concept of law as acceptance of conventional patterns of
recognition, and describes law not merely as a descriptive concept but as an interpretive
concept which combines jurisprudence and adjudication.
• Hart defines legal positivism as the theory that there is no logically necessary
connection between law and morality. However, he describes his own viewpoint as a
"soft positivism," because he admits that rules of recognition may consider the
compatibility or incompatibility of a rule with moral values as a criterion of the rule’s
legal validity.
• Hart criticizes both formalism and rule-skepticism as methods of evaluating the
importance of rules as structural elements of a legal system. Formalism may rely on a
rigid adherence to general rules of conduct in order to decide which action should be
performed in a particular situation. On the other hand, rule-skepticism may not rely on any
general rule of conduct in order to decide which action should be performed in a particular
situation. Formalism may produce such inflexibility in the rules of a legal system that the
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rules are not adaptable to particular cases. Rule-skepticism may produce such uncertainty
in the application of the rules of a legal system that every case has to be adjudicated.
• Hart describes international law as problematic, because it may not have all of the
elements of a fully developed legal system. International law may in some cases lack
secondary rules of recognition, change, and adjudication. International legislatures may
not always have the power to enforce sanctions against nations who disobey international
law. International courts may not always have jurisdiction over legal disputes between
nations. International law may be disregarded by some nations who may not face any
significant pressure to comply. Nations who comply with international law must still be
able to exercise their sovereignty.

Introduction (from the course manual)

His work can be approached in three distinct but interlocking bits:

(1) His criticism of the sovereign/ command theory;

(2) His criticism of the account of legal obligation as comprising of either of predictions (in
the fashion of the American Legal Realists) or in feelings of being bound (in the fashion
of the Scandinavian Realists);
(3) His rejection of a postulated grundnorm at the helm of a legal system.

In the place of the models he discredited, he proposed a (some would say) sparse (but no one would
deny, elegant) model of the law as a system of rules, which were firmly grounded in social practice.
For sake of convenience this can be split into three parts (though you must note they don’t come
neatly distinguished in the text of The Concept of Law)

(1) The Legal System as a System of Rules

The law for Hart was a union of primary and secondary rules. Hart argued that law is the union of
primary and secondary rules.

Primary rules impose duties on people to behave in certain ways.

Secondary rules, by contrast, pertain to the primary rules.

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Primary rules do not themselves settle which of them meet the criteria of legal validity and thus
are to count as primary rules in the first place, or the solution in the event of a conflict between
two or more primary rules.

This is where the secondary rules assume significance. They lend an element of dynamism to the
legal system of which they are a part by permitting it to solve problems that would arise were it to
comprise exclusively of primary rules alone.

Hart identifies three types of secondary rules:

(a) Rule of recognition

Rules of recognition provide conclusive methods for ascertaining which primary rules meet the
criteria of legal validity.
It corresponds to creation.

(b) Rules of change

Rules of change enable and regulate the process of altering, and repealing primary rules.
It can partially or completely change. Being the rule of change it can change rule of recognition
and adjudication.

(c) Rules of adjudication

Rules of adjudication empower some officials (courts) to make authoritative determinations of
departures and violations.

These three types of rule exhaust the realm of secondary rules for Hart.

(2) Rules and Legal Obligation

As far as his account of legal obligation goes, Hart argues that a legal obligation is a statement of
what is required to comply with a rule.

He says that rules can be predictions as far citizens go. But judges cannot view laws like that i.e.
as mere predictions.
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(3) Rules and Adjudication

Closely intertwined with Hart’s account of obligation and his criticism of American Legal Realism
is his theory of adjudication. His objective here again was to steer the middle path between two
extremes. One extreme saying there is really no law and whatever the judge does is law (the
American Legal Realists) which Hart called the nightmare and the other extreme where all the
judge does is merely apply the law at all times which Hart called the noble dream.

Hart argues that there are times when the judge applies the law. Then there could be gaps in the
law, in which case the judge makes law. This view of Hart’s has become one of the foundational
assumptions of legal positivism until it was challenged by one of his one former students Ronald
Dworkin (more on this later).

Notes:
The simple model of law as the sovereign’s coercive orders failed to reproduce the following
features of the legal system,
1. It became clear that though of all the varieties of law, a criminal statute, forbidding or enjoining
certain actions under penalty, most resembles orders backed by threats given by one person to
others, such a statute none of the less differs from such orders in the important respect that it
commonly applies to those who enact it and not merely to others.
2. There are other varieties of law, notably those conferring legal powers to adjudicate or legislate
(public powers) or to create or vary legal relations (private powers) which cannot, without
absurdity, be construed as orders backed by threats.
3. There are legal rules which differ from orders in their mode of origin, because they are not
brought into being by anything analogous to explicit prescription. The analysis of law in terms
of the sovereign, habitually obeyed and necessarily exempt from all legal limitation, failed to
account for the continuity of legislative authority characteristic of a modern legal system, & the
sovereign person/s could not be identified with either the electorate or the legislature of a modern
State.

LAW AS A SYSTEM OF RULES

• For Hart, the legal system is a system of social rules
• The rules are “social” in two senses:
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o “social” because they regulate the conduct of members of societies

o “social” because they are derived from human practices

• Hart thought that were two kinds of rules:

o Primary rules
o Secondary rules
• Primary rules = impose a duty e.g. the rules of criminal law or the law of tort (e.g. negligence)
• Secondary rules = could be divided into three types:

o The rule of recognition

▪ This is the foundation rule which tells any one of us how to know that a rule is a valid rule
▪ It is an ‘ultimate’ rule – (e.g. he compares it to the metre bar in Paris which is the ultimate test of
the measurement of a metre) which we all assume is, itself, correct.
• e.g. in the UK, what the Queen in Parliament enacts is law
• e.g. in Kuwait, what is published in Kuwait Today is law
▪ In a basic/primitive society, it might be a rule that says: anything written in a certain book, or
anything written on a certain stone, is law.
▪ It corresponds to creation. It sees what is a law.

o Rules of change
▪ The rules which regulate the process of change of the primary rules themselves e.g. The power to
pass legislation in accordance with certain procedures
▪ Any rule that says how to change, add to or delete a primary rule
▪ Rules of change enable and regulate the process of altering, and repealing primary rules. It can
partially or completely change. Being the rule of change it can change rule of recognition and
adjudication.
▪ It is linked with destruction.

o Rules of adjudication
▪ The rules which give power to officials to pass judgment in cases of alleged wrongs e.g. by
ordering the payment of money or putting someone in prison
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▪ Rules of adjudication empower some officials (courts) to make authoritative determinations of

departures and violations.
▪ It is linked with sustaination.
▪ It is to maintain stability in the system, to see if the rules are maintained.
These three are interlocked. We cannot say anyone of them is superior. They are needed for the
existence of other. These are all secondary rules/ Primary rules are directed at citizens and they
prescribe a specific method of conduct.

SEPARATION OF LAW AND MORALITY

▪ For Hart, law and morality are separate
▪ An evil law is still a “law”
▪ For example, Nazi laws regarding informing on people, spying etc. They were valid laws but after
World War II, some people were prosecuted for breaching them
▪ There is a famous debate between Hart and Lon Fuller over this issue: Hart says that some laws
are morally deficient, but are still laws. Fuller disagrees.

HART’S IDEA ON THE ‘INTERNAL ASPECT OF LAW’

▪ The ‘legal system’ according to Hart will only exist when the rules of behavior are commonly
obeyed by the citizens and when the rule of recognition is commonly accepted (hopefully by
everyone, but at least by officials) – they must accept these rules from “the internal point of view”.

▪ What does the “internal point of view” mean? This is something that Hart developed and his theory
is different from his predecessors such as Austin and Bentham here.

▪ He means that law depends on more than just external pressures that are brought to bear on
humans; it also depends on an inner point of view – that the law is placing obligations upon us. We
(both offenders of the law and others) must see the law as setting common standards of behavior, and
that we will be criticized if we fail to meet those standards.

▪ Hart introduces the ‘internal aspect of law’ to distinguish law from mere habits
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▪ MacCormick helps explain this by using an example. Let’s say a person is stopped at the traffic
lights and the person is playing their radio. To the outside observer, there is nothing to distinguish
between the two activities (stopping at the traffic lights and playing the radio) but to the driver the
distinction is based on the different thought patterns involved: stopping at the red lights is an
obligation and not doing so will be considered a lapse in behavior (by him/her and by others) which
leaves the driver open to criticism. Whereas that is not the case with failure to play his/her car radio.

▪ So, the law has an internal aspect but it depends on how we see the rules, not just on what an
outsider observes.

• The Concept of Law (1961) is an analysis of the relation between law, coercion, and
morality, and it is an attempt to clarify the question of whether all laws may be properly
conceptualized as coercive orders or as moral commands. Hart says that there is no
logically necessary connection between law and coercion or between law and morality. He
explains that to classify all laws as coercive orders or as moral commands is to oversimplify
the relation between law, coercion, and morality. He also explains that to conceptualize all
laws as coercive orders or as moral commands is to impose a misleading appearance of
uniformity on different kinds of laws and on different kinds of social functions which laws
may perform. He argues that to describe all laws as coercive orders is to mischaracterize
the purpose and function of some laws and is to misunderstand their content, mode of
origin, and range of application.
• Laws are rules that may forbid individuals to perform various kinds of actions or that may
impose various obligations on individuals. Laws may require individuals to undergo
punishment for injuring other individuals. They may also specify how contracts are to be
arranged and how official documents are to be created. They may also specify how
legislatures are to be assembled and how courts are to function. They may specify how new
laws are to be enacted and how old laws are to be changed. They may exert coercive power
over individuals by imposing penalties on those individuals who do not comply with
various kinds of duties or obligations. However, not all laws may be regarded as
coercive orders, because some laws may confer powers or privileges on individuals
without imposing duties or obligations on them.
16 | P a g e ANSHUL RAMESH

• Hart criticizes the concept of law that is formulated by John Austin in The Province of
Jurisprudence Determined (1832) and that proposes that all laws are commands of a legally
unlimited sovereign. Austin claims that all laws are coercive orders that impose duties or
obligations on individuals. Hart says, however, that laws may differ from the commands
of a sovereign, because they may apply to those individuals who enact them and not merely
to other individuals. Laws may also differ from coercive orders in that they may not
necessarily impose duties or obligations but may instead confer powers or privileges.
• Laws that impose duties or obligations on individuals are described by Hart as "primary
rules of obligation." In order for a system of primary rules to function effectively,
"secondary rules" may also be necessary in order to provide an authoritative statement of
all the primary rules. Secondary rules may be necessary in order to allow legislators to
make changes in the primary rules if the primary rules are found to be defective or
inadequate. Secondary rules may also be necessary in order to enable courts to resolve
disputes over the interpretation and application of the primary rules. The secondary rules
of a legal system may thus include 1) rules of recognition, 2) rules of change, and 3) rules
of adjudication.
• In order for the primary rules of a legal system to function effectively, the rules must be
sufficiently clear and intelligible to be understood by those individuals to whom they apply.
If the primary rules are not sufficiently clear or intelligible, then there may be uncertainty
about the obligations which have been imposed on individuals. Vagueness or ambiguity in
the secondary rules of a legal system may also cause uncertainty as to whether powers have
been conferred on individuals in accordance with statutory requirements or may cause
uncertainty as to whether legislators have the authority to change laws. Vagueness or
ambiguity in the secondary rules of a legal system may also cause uncertainty as to whether
courts have jurisdiction over disputes concerning the interpretation and application of laws.
• Primary rules of obligation are not in themselves sufficient to establish a system of laws
that can be formally recognized, changed, or adjudicated, says Hart. Primary rules must be
combined with secondary rules in order to advance from the pre-legal to the legal stage of
determination. A legal system may thus be established by a union of primary and secondary
rules (although Hart does not claim that this union is the only valid criterion of a legal
17 | P a g e ANSHUL RAMESH

system or that a legal system must be described in these terms in order to be properly
defined).
• Hart distinguishes between the "external" and "internal" points of view with respect to how
the rules of a legal system may be described or evaluated. The external point of view is that
of an observer who does not necessarily have to accept the rules of the legal system. The
external observer may be able to evaluate the extent to which the rules of the legal system
produce a regular pattern of conduct on the part of individuals to whom the rules apply.
The internal point of view, on the other hand, is that of individuals who are governed by
the rules of the legal system and who accept these rules as standards of conduct.
• The "external" aspect of rules may be evident in the regular pattern of conduct which may
occur among a group of individuals. The "internal" aspect of rules distinguishes rules from
habits, in that habits may be viewed as regular patterns of conduct but are not usually
viewed as standards of conduct. The external aspect of rules may in some cases enable us
to predict the conduct of individuals, but we may have to consider the 'internal' aspect of
rules in order to interpret or explain the conduct of individuals.
• Hart argues that the foundations of a legal system do not consist, as Austin claims, of habits
of obedience to a legally unlimited sovereign, but instead consist of adherence to, or
acceptance of, an ultimate rule of recognition by which the validity of any primary or
secondary rule may be evaluated. If a primary or secondary rule satisfies the criteria which
are provided by the ultimate rule of recognition, then that rule is legally valid.
• There are two minimum requirements which must be satisfied in order for a legal system
to exist: 1) private citizens must generally obey the primary rules of obligation, and 2)
public officials must accept the secondary rules of recognition, change, and adjudication
as standards of official conduct. If both of these requirements are not satisfied, then primary
rules may only be sufficient to establish a pre-legal form of government.
• Moral and legal rules may overlap, because moral and legal obligation may be similar in
some situations. However, moral and legal obligation may also differ in some situations.
Moral and legal rules may apply to similar aspects of conduct, such as the obligation to be
honest and truthful or the obligation to respect the rights of other individuals. However,
moral rules cannot always be changed in the same way that legal rules can be changed.
18 | P a g e ANSHUL RAMESH

• According to Hart, there is no necessary logical connection between the content of law and
morality, and that the existence of legal rights and duties may be devoid of any moral
justification. Thus, his interpretation of the relation between law and morality differs from
that of Ronald Dworkin, who in Law’s Empire suggests that every legal action has a moral
dimension. Dworkin rejects the concept of law as acceptance of conventional patterns of
recognition, and describes law not merely as a descriptive concept but as an interpretive
concept which combines jurisprudence and adjudication.
• Hart defines legal positivism as the theory that there is no logically necessary connection
between law and morality. However, he describes his own viewpoint as a "soft positivism,"
because he admits that rules of recognition may consider the compatibility or
incompatibility of a rule with moral values as a criterion of the rule’s legal validity.
• Legal positivism may disagree with theories of natural law, which assert that civil laws
must be based on moral laws in order for society to be properly governed. Theories of
natural law may also assert that there are moral laws which are universal and which are
discoverable by reason. Thus, they may fail to recognize the difference between descriptive
and prescriptive laws. Laws that describe physical or social phenomena may differ in form
and content from laws which prescribe proper moral conduct.
• Hart criticizes both formalism and rule-skepticism as methods of evaluating the importance
of rules as structural elements of a legal system. Formalism may rely on a rigid adherence
to general rules of conduct in order to decide which action should be performed in a
particular situation. On the other hand, rule-skepticism may not rely on any general rule of
conduct in order to decide which action should be performed in a particular situation.
Formalism may produce such inflexibility in the rules of a legal system that the rules
are not adaptable to particular cases. Rule-skepticism may produce such uncertainty
in the application of the rules of a legal system that every case has to be adjudicated.
• International law is described by Hart as problematic, because it may not have all of
the elements of a fully developed legal system. International law may in some cases lack
secondary rules of recognition, change, and adjudication. International legislatures may not
always have the power to enforce sanctions against nations who disobey international law.
International courts may not always have jurisdiction over legal disputes between nations.
International law may be disregarded by some nations who may not face any significant
19 | P a g e ANSHUL RAMESH

pressure to comply. Nations who comply with international law must still be able to
exercise their sovereignty.
• In any legal system, there may be cases in which existing laws are vague or indeterminate
and that judicial discretion may be necessary in order to clarify existing laws in these cases.
Hart also argues that by clarifying vague or indeterminate laws, judges may actually make
new laws. He explains that this argument is rejected by Ronald Dworkin, who contends
that judicial discretion is not an exercise in making new laws but is a means of determining
which legal principles are most consistent with existing laws and which legal principles
provide the best justification for existing laws.
• Dworkin says in Law’s Empire that legal theory may advance from the "pre-interpretive
stage" (in which rules of conduct are identified) to the "interpretive stage" (in which the
justification for these rules is decided upon) to the "post-interpretive stage" (in which the
rules of conduct are reevaluated based on what has been found to justify them). A complete
legal theory does not merely identify the rules of a legal system, but also interprets and
evaluates them. A complete legal theory must consider not only the relation between law
and coercion (i.e. the "force" of law), but the relation between law and rightfulness or
justifiability (i.e. the "grounds" of law).
• Thus, Dworkin argues that a complete legal theory must address not only the question of
whether the rules of a legal system are justified but the question of whether there are
sufficient grounds for coercing individuals to comply with the rules of the system.
20 | P a g e ANSHUL RAMESH

Topic: Outline of Hart Chapter 7- Formalism and Rule Skepticism

1. The Open Texture of Law

In order to have a legal system, one has to have rules and guidelines that control the society. The
law has to refer to general actions and discuss the implications on general classes of people. Law
has to refer to classes of people and acts. Its successful operation in the vast array of social classes
depends on its ability to recognize particular things and groups of people and acts.

There are two devices that are used to declare a general law and apply it to specific groups:

i. Legislation
ii. precedent

• Teaching by conduct may be very complex. A person can specify exactly what is being
expected and on the other hand can assume that they are a leader and that their actions will
be mimicked.
• In terms of a legal precedent, we must suppose that this person is following traditional
standards and not be creating new ones. A general order to follow what that person does
will lead to confusion, because it might not be so clear exactly what he is asking to imitate.
• For example, the man saying to his son, “Do as I do”; the kid has to assume what he is
talking about, and how much to follow, and has to use his common sense and knowledge
of what adults like to do, and figure out what the context is. This is the inherent difficulty
in trying to lead by example.
• On the other hand, it is much easier and clearer to follow an order that is precise and
carefully worded. The demands are in words, and you don’t have to infer anything. Also
makes it easier to follow those rules in the future. You then have a rule that you can apply
by yourself on different occasion, as opposed to needing an example in those future
instances too.
• This century’s jurisprudence has discovered that things aren’t as clear as this example
suggests. Often a direct command leads to incredible amounts of confusion and uncertainty
will exist in concrete cases. It is often difficult to understand when to apply to rule to the
case, which rule to apply.
21 | P a g e ANSHUL RAMESH

• Language has a limit as to how much information and guidance it can provide. Some things
will be clear, but not always. The interpretations that are posed can help clear up some
things, but not everything. The only ones that are really clear are cases where the rule is a
common one and constantly recurring in similar contexts, where there is a general
agreement to when it applies. General terms would be useless to us as a medium of
communication unless there were such familiar, generally unchallenged cases. Sometimes
a person can think a general statement is a great thing, and sometimes it is confusing to
people. But if it is going to be solved, somebody has to make a decision of what it means
from all the choices available. In this case, the general language of a rule is as uncertain as
the example was. The language that we thought was the simpler, clearer way is really only
clear in terms of the obvious, simple case that it refers to. This is similar to a precedent,
except that in a verbal rule you don’t need to infer things or be as perceptive in order to
understand what’s being discussed. You can try to lead by example and also give a general
rule, but in both cases, when a new situation arises, you might have to ask yourself the
same questions of whether this case applies to the example or rule that you learned/saw
earlier. Does this new case resemble the “plain case” sufficiently and in relevant aspects?
The discretion left to determine by language may be very wide. When he decides that
something does fit in with the role posed, he is making a choice to include it into the legal
understanding because of its resemblance to the rule.
• Both precedent and legislation will eventually prove indeterminate- they will have an
open texture.
• For legislation, it is a feature of language that it is limited when discussing general rules,
there will be uncertainty. Why shouldn’t we aim to create a system of laws that are so
specific that they deal with every type of situation in advance? Because we need the choice,
it is the feature of the human predicament that we have 2 problems when trying to regulate
conduct in advance without intent to give further direction in concrete cases later.
i. Our relative ignorance of fact;
ii. Our relative indeterminacy of aim.

• We don’t know about every single type of situation that could arise with every possible
combination- we’re just human. If we knew everything that would and could ever happen,
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we could make a rule to fit each situation and have a world fit for “mechanical
jurisprudence”, but that is not our world. This lack of ability to foretell gives the
indeterminacy of aim.
• We use general rules because they help us with this problem- we fit all the potential cases
into the general one. There are some clear cases that will be obvious to us, and then we
compare the new potential cases with the obvious ones and if similar enough, we say the
new case fits with the law, and have made a choice.
• Indeterminate would be if we have not settled, because of not having anticipated, the
question raised by an unenvisaged case. When this type of case DOES arise, we confront
the issue at stake and choose between competing interests to satisfy us. In doing so we have
rendered more determinate our initial aim and shall incidentally have settled a question as
to the meaning, for the purpose of this rule, of a general word. Legal systems can either
ignore or acknowledge the need for future choices in the application of a general rule to a
particular case.
• Formalism or conceptualism tries to minimize the choice making, after the general rule is
in place. One way of doing this: freeze the meaning of the rule so that its general terms
must have the same meaning in every case where its application is in question. We may
specify features that are necessary no matter what to have the cases be included in the rule.
This secures certainty or probability at the cost of blindly prejudging future cases that may
arise. This would force us to include certain things as being in the scope of the law, even
if we wouldn’t want to include them for any reason. The rigidity of our classification will
thus war with our aims in having or maintaining the rule. A “heaven of concepts” occurs
when the term at debate is said to mean the exact same thing in every context it is in in the
legal system- no effort is then ever required to understand the term in its context, it will
always mean the same one thing.
• All legal systems compromise between 2 social needs:
o need for certain rules which can safely be applied by individuals to their actions
without official guidance;
o need to leave open issues that can only be settled by an official when they arise in
a specific case.
23 | P a g e ANSHUL RAMESH

• Sometimes too much is sacrificed for certainty and for a concrete law that will fit formally
all situations that it encounters, and sometimes the opposite is true, and the laws aren’t
significantly concrete, and everything is up to the judge to decide. So what happens is that
there are these 2 extremes- and the legal systems either ignore or exaggerate the
indeterminacies of legal rules. To prevent this it is important to remember that we as
humans lack the ability to know the future, and that is at the root of this indeterminacy, and
there are a lot of techniques that a legal system can use to deal with this issue.
o Sometimes it is clear that the system that the rules are trying to control is one where
the facts of each case will be so different that one system can’t encompass
everything, and there must be individual decisions made to fit each case.
o The legislature sets up general rules and then delegates an administrative, rule
making body and instructs them to make sure the rules fit with specific cases. The
legislature may require an industry to meet standards or charge only a fair rate or
provide safe systems of work – in this way, the legislature must determine what
these actually are, to be able to impose the rules on the industry.
o The legislation will want to look into understanding the industry and its facts before
making any regulations that must be implemented. Even with very general
standards, it won’t always be clear who meets them and who doesn’t. The rate, for
example, can vary between a cost that is so high that the people are forced to do
everything to afford it, or so low that there is no incentive for the owners to run the
company at all. The things in between these are the things that are difficult to deem
as following or not following the standards and regulations. There can’t only be
one answer found, there is a bunch of interests that should be met in determining
guilt.
o Second technique is used in cases where it is impossible to identify a class of
specific actions to be uniformly done or forebone and to make them the subject of
a simple rule, yet the range of circumstances, though very varied, covers familiar
features of common experience. Here, judgements of what is REASONABLE can
be used by the law. The individual is the one who should create and measure the
balance of what is reasonable. They try to anticipate whether their actions fit into
the box, and only AFTER the fact may understand that they were wrong or what
24 | P a g e ANSHUL RAMESH

was required. A good example of this is the standard of care required in negligence
cases- the court imposes a standard that should be met, and it is up to the individual
to balance between his interests and his obligation to be careful to prevent damages.
Balance between ensuring people’s safety and making sure that the demand isn’t
too detrimental to you. This isn’t something we can foresee.
o The individual has to foresee what the legal system could and would not. After the
experience was had, the legal system will decide. There are some thing that we want
to control in advance through specific rules with disregard for the variety of cases
that can occur because they are SO important that the specific cases don't
really make a difference. For example, killing. We say killing somebody is illegal,
because very few factors appear to us to outweigh or make us revise our estimate
of the importance of protecting life. The act of killing is more important than the
other factors that can come with it, so we can say a blanket statement that killing is
bad and illegal. The times when killing is justified (self-defense, etc.) are so few
that we can state them as individual exceptions to the rule. There are also some
things that have a clear right and wrong not because of their moral significance to
us, but because there needs to be an easily identifiable and uniform procedure, such
as which side of the road to drive on. There will be very few exceptions to this type
of rule, because there are very few cases where the circumstances outweigh the
need for a clear, one sided rule.
o Precedent- we will attempt to characterize the area of open texture and the judicial
creativity involved. Precedent in English law must allow a place for the following
pairs of contrasting facts.

i. no single method of determining the rule for which a given authoritative precedent is an
authority.
ii. no authoritative or uniquely correct formulation of any rule to be extracted from cases.
iii. Whatever authoritative status a rule extracted from precedent may have, it is compatible
with the exercise by courts that are bound by it of the following 2 types of creative or
legislative activity:
25 | P a g e ANSHUL RAMESH

• The court may come to a conclusion that was the opposite of the conclusion of the
precedent if it brings the precedent to show that this case is an instance that is an exception.
This process distinguishes this case from the rule determined by the precedent. There have
to be legally relevant differences between the 2 cases.
• In following an earlier precedent, the courts may discard a restriction found in the rule by
saying that it is not required by any law or former precedent. This widens the rule. Either
way, the result of the precedent is to produce, by its use, a body of rules of which a vast
number are as determinate as any statutory rule. The open texture of law means that
there will always be more to develop and apply, and different interests to value in
different cases.
• Law also needs determinate rules that don’t need to be tested from case to case. But the
courts use precedent and in this way CREATE some laws, similar to the legislature, even
though the courts say they only interpret and apply the laws- they really have a rule
producing function.

2. Varieties of Rule-Skepticism

As we discussed, the law is open to change, to application, to interpretations- in every legal

system, a field is left open for the exercise of discretion by courts in making sure standards

are determinate, resolving uncertainty, developing rules. But you can't take this to mean that

the outcome isn't a rule. The framework and the end product are general rules. These rules

can be understood by individuals without need for further direction. Rule Skepticism is the

claim that rules are a myth, and that the law is simply the decisions of court and the

predictions of what the courts will decide. This is impossible because the existence of a court

entails the existence of secondary rules which make the judges rules authoritative and which

are imposed on the individual. If there were no rules, and there was only a court, there would
26 | P a g e ANSHUL RAMESH

be no difference between a courts decision and a friends decision. Some versions of this

theory aren't as extreme, and for example will say that if there are courts,there have to be

some rules which constitute them, and these can't be predictions of what the courts are

expected to decide. This doesn't really help though- this doesn't make sense because
it's

saying that statutes are nothing until the courts apply them and they become laws, but at the

same time it's saying that the only rules that exist are those required to constitute courts.

There must be secondary rules that give legislation power over individuals. The theory DOES

say that there exist statutes- but says that they are only sources of laws, not laws themselves

until a court applies them.May be that rule scepticism never intended to deny the existence of

secondary rules, and never said that secondary rules are just predictions of what the courts

will decide... Rule skepticism is obviously false in one way- individuals exhibit the internal

point of view. They do not understand the law to be a prediction of what the court will

decide, or things that don't apply to them directly, rather they see it as a guide for how they

should conduct themselves. Laws function as accepted legal standards of behavior. It's true

that people do believe that the courts will decide in accordance with the laws delineated, but

at the same time, it's clear that individuals do not confine themselves to an external point of

view, just predicting the outcome or decisions of courts. They express their shared acceptance
27 | P a g e ANSHUL RAMESH

of laws as a guide to conduct. They are USED as rules and not just predictions. Rule

skepticism only has claims in regard to the function of rules in judicial decisions. Judges are

not “bound”, then, to decide based on the rules. They may be predictable enough and make

the same decision over and over so that people are bound to his decision. A judge might

himself feel obligated to judge in a certain way, but there is nothing that we can consider to

be a rule which they observe. Nothing that courts can treat as standards of correct judicial

behavior. Judges don’t have that internal point of view of the acceptance of law as rules that

individuals have. Skepticism bases its case on the fact that a judge won't be subject to

sanctions for not following a “rule”, that rules have an open texture, and that rules have an

infinite amount of exceptions. Arguing this is ignoring the reality of what a rule is- it's saying

that if rules aren't formally binding for every single instance, they don't really exist.
Just

because there are exceptions and not all cases fit under one general category, it doesn't mean

that rules don't exist. “A rule that ends with the word 'unless...' is still a rule”.
Sometimes

when a person accepts a rule as something that he can't change, he follows it intuitively and

not because it's a rule. You stop at a red light without thinking that this is a rule, and so you

must follow it, or else you're doing something illegal. It becomes a direct response to the

situation and not a calculation in terms of the rule. At the same time, if somebody asked you
28 | P a g e ANSHUL RAMESH

why you stopped at the stop light, you very well might say that you did because it's a law
that

you have to follow. We have to be able to distinguish between an action which in genuinely

an observance of a rule from one that merely happens to coincide with it.It's possible that

judges make decisions based on their initial reaction and hunch, and then later search for a

rule to attribute their decisions to, but it's usually clear that a lot of thought and work was
put

into conforming to rules consciously taken as guiding standards of decision.(2 types of rule

scepticism above were: based on open character of law, and intuitive character of many

decisions) A 3rd type is based on the fact that the decision of a court has a unique position as

something authoritative, and final.

3. Finality and Infallibility in Judicial Decision

A court can never be “wrong”- there are no consequences to saying that, because the decision
can't be changed or overruled.. a legislation can make the ruling ineffectual, but there's
no point in saying that the decision was “wrong” because as far as the law is concerned, that's
unimportant. Based on this understanding, it's pedantic to differentiate between a court
decision's finality and infallibility. This leads to another type of denial of the fact that courts
are bound by rules: “The law is what the courts say it is”. Hart gives an example of a game where
the scorers decisions are final and unchallengeable. In this case, the scoring RULE is the same,
and the scorer's only job is to decide when a point is actually deserved or not. He has to apply
the rules as well as he can. Saying that “the score is what the scorer says it is” doesn’t mean that
there are no rules involved in the game, and that it’s all up to the scorers

discretion and everything is futile, it just means that he's the determining factor. The scorer
29 | P a g e ANSHUL RAMESH

can of course make mistakes, or even be abusive or violate the rules himself- like any human

is capable of. Provision may be made for correcting his rulings by appeals to a higher

authority; but there must be a final place where the case rests as closed. When an official

scorer is appointed and his decisions are said to be final, every other opinion is completely

irrelevant. We wouldn't say that the players statements are predictions of the scorers rulings...

after a scorer is appointed, the player is still doing what he did before: assessing the progress

of the game based on objective situations. This is what the scorer is also doing- the players

statements are unofficial applications of the games rules, and therefore have no computing

significance. The scorers statements are authoritative andfinal. If the game had no rules and

points were allocated based on whatever whims the scorer had, THEN the player would be

predicting (and nothing else). In that case, the scoring rule would be whatever the scored said

it was. Then, the scorers rulings would be final and infallible- but the infallible part doesn't

really fit, because there'd be no right and wrong, just fact. **Bottom line here: In an ordinary

game 'the score is what the scorer says it is' is not the scoring rule: its a rule providing
for the

authority and finality of his application of the scoring rule in particular cases.This game that

we've depicted isn't just a game of the scorers discretion in that there are actual rules
to

follow, but despite this, there may still be room for the scorer to make a choice in an open

texture. This choice is where we can say that the scorers decisions may be final, but are not
30 | P a g e ANSHUL RAMESH

infallible. In this place, where he has to make the decision between choices, can we say that

he's erred. This is true in law as well. Although some mistakes are tolerated, there is a limit
at

which we'd say that too many mistakes means that the scorer must be replaced or that
it's no

longer the same game as was intended to play. A mistake here and there is still final, and so it

must be accepted, but too many becomes a game of “scorers discretion”. BUT, the fact that in

all games the scorers decisions are final doesn't mean that they are all games of scorers

discretion. Must understand this distinction when we deal with the rule skepticism thats based

on the fact that the courts ruling is final and authoritative. The open texture of law allows

courts to create precedent (which is even more wide than the power given to the scorer, who

can only determine, but not create precedents). The decisions of courts, whether its something

clear or something debatable, stands until legislation might chose to change it, but

nevertheless, there is still a difference between a constitution that says that the law is

whatever the supreme court decides it should be and a constitution that exists in reality. At

any given moment, judges, even those of a SC, are parts of a system the rules of which are

determinate enough at the center to supply standards of correct judicial decision. The courts

are NOT free to disregard this despite the fact that their decisions will be unchallenged. The

judges accept the standard of conduct. Hart then addresses the possibility that the judges

might combine and reject an existing rule in favor of their own decision and disregard a clear
31 | P a g e ANSHUL RAMESH

legislative law. If this happened often enough and was accepted, the game would be changed

to scorers discretion. No rules can be guaranteed to be followed, but if it happens for long

enough, the rules will cease to exist. It's possible that the judges will all decide to stop

following the rules and to do whatever they want, and then the rules will stop being rules, but

this is extremely unlikely and just wont happen. Finally- in terms of a rule being merely a

prediction... although it may be clear to us and easy to predict what a court will decide, it

doesn’t give that a meaning there’s no inherent correlation. It's like predicting that a checkers
player will try to jump another piece- it's ultimately an appreciation of the non-predictive
aspect of rules and of the internal point of view of the rules as standards accepted by those to whom
the predictions relate.

4. Uncertainty in the Rule of Recognition

The truth lies in between formalism and R.S. Before we analyze this, we should go back to

the Rule of Recognition. This concerned the uncertainty of the ultimate criteria used by

courts in identifying valid tules of law. The distinction between the uncertainty of a particular

rule, and the uncertainty of the criterion used in identifying it as a rule of the system is not

always a clear one. It is the clearest where the rules are statutory enactments with an

authoritative text. There may be doubts as to whether the legislation has the right to make

rules about this topic- but then you might only need to check another rule of law which

conferred this particular legislative power. What's the ultimate criteria for legal validity

(meaning what's the ror)? Some might say that “whatever the Queen in Parliament enacts is
32 | P a g e ANSHUL RAMESH

law' and often that's good enough of an answer. But still, questions will arise in regards
to the meaning and the scope of that statement. We'll use the English system as an example,
even though it applies to any system. “Austinian doctrine that law is essentially the product of a
legally untrammeled will, older constitutional theorists wrote as if it was a logical necessity that
there should be a legislature that was sovereign in the sense that it is free, at every moment of
it's existence as continuing body not only from legal limitations imposed ab extra but also
from its own prior legislation.” Another principle that might deserve the name sovereignty- the
principle that parliament should not be incapable of limiting irrevocably the legislative competence
of its successors but, on the contrary, should have this wider self limiting power. “The requirement
that at every moment of its existence parliament should be free from legal limitations including
even those imposed by itself is, after all, only one interpretation of the ambiguous idea of legal
omnipotence. Continuing omnipotence Self Embracing omnipotence2 conceptions of an
omnipotent g-d: on the one hand, a g-d who at every moment of his existence enjoys the same
powers and so is incapable of cutting down those powers and on the other a g-d whose powers
include the power to destroy for the future his omnipotence. Thus it is clear that the presently
accepted rule is one of continuing sovereignty so that the parliament cannot protect its statutes
from repeal. Yet, as with every other rule, the fact that the rule of parliamentary sovereignty is
determinate at this point does not mean that it is so at all points.” There may be questions that are
raised that can be settled only by a choice, made by somebody who was given the authority to
make this choice. The indeterminacies in the rule of parliamentary sovereignty present themselves
in the following way: The rule today is that parliament cannot by statue irrevocably withdraw any
topic from the scope of future legislation by parliament. There's a difference between making
this rule and making a rule that makes it EXTREMELY difficult for a law to be passed (and
basically achieving the same purpose of not allowing the law to be passed). Difference between
not allowing a topic to be raised, and allowing to be passed only under “special conditions”. This
is a partial alteration in the legislative process and be consistent with the rule that Parliament cant
bind it's successors but at the same time it transfers their rights to deal with a certain issue.
“Parliament has not bound or fettered Parliament or diminished its continuing omnipotence, but
has redefined parliament and what must be done to legislate”. The same result could be achieved
by even though parliament wouldn’t be allowed to bind its successors. This is the open texture of
the system's most fundamental rule, where there is no one answer.
33 | P a g e ANSHUL RAMESH

Hart raises all the questions that deal with the extent of parliaments powers- and how much they
can “commit suicide” and give away their powers for future generations. “Will have a unique
authoritative status among the answers which might be given. The courts will have made
determinate at this point the ultimate rule by which valid law is identified.

Here, the constitution is what the judges say it is, that does not mean merely that particular
decisions of supreme tribunals cannot be challenged.” “Though every rule may be doubtful at some
points, it is indeed a necessary condition of the legal system existing that not every rule is open to
doubt on all points. It is clear that such ordinary cases must arise in any system and so it seems
obviously to be part, even if only an implied part, of the rules of which courts act that courts have
jurisdiction to settle them by choosing between the alternatives which the statue leaves open even
if they prefer to disguise this choice as a discovery. Questions concerning the fundamental criteria
of validity often seem not to have this previously envisageable quality which makes it natural to
say that when they arise the courts already have under the existing rules a clear authority to settle
questions of this sort.” “The question whether that court had authority to rule that it was not bound
by its own precedents on matters concerning the liberty of the subject might have appeared entirely
open. The statement that the court always had an adherent power to rule in this way would surely
only be a way of making the situation look tidier than it already is. Here, we should welcome the
rule sceptic as long as he does not forget that it is at the fringe that he is welcome, and 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.”

OPEN TEXTURE OF LAW

Hart says that a general term in natural language has a central core of determinate meaning and a
surrounding penumbra of indeterminate meaning. There is no ambiguity in determining the
outcome of such cases where the standard meaning applies. In cases where the facts fall into the
word’s core meaning, the only task that remains is the identification of clear instances of the
classificatory heads for the purposes of categorization. On the other hand, there is vagueness
surrounding the application of the rule to the borderline cases leading to a situation of
indeterminacy. This, as per Hart, is attributable to the open texture of the language so used.
According to Hart, this indeterminacy enables application of rules to situations that the legislators
34 | P a g e ANSHUL RAMESH

did not foresee. He states that the judges act as surrogate legislators in such cases where the
indeterminacy prevails. This is in contrast to the opinion of the Formalists and the Realists. The
former argue that law always provides for adequate grounds for deciding any legal question,
whereas the latter claim that law never provides any answers. Hart’s position, juxtaposed between
two contrasting opinions, appears to strike a middle ground. THIS IS ALSO WHY HE IS A SOFT
POSITIVIST, AS HE IS APPLYING NATURAL LAW WHEN CASES FALL IN THE
PENUMBRA.