TOPIC: H.L.

A HART
This paper presents H.L.A hart’s critical re-evaluation of the command theory. He also proposes
that idea of state coercion is not logically essential to the definition of law.

Herbert Hart’s new beginning: the burial of the command concept of law:

H.L.A Hart criticized Austin’s theory of law and states that it is essentially false to the facts.
Austin asserts that “every possible law is a command of sovereign and law gets its force from
threat of sanction.” Hart, here argues that there are too many laws that do not look like
commands backed by sanction for us to find this theory compelling.

Hart called his theory a version of “soft positivism” because though he denies a necessary
connection between law and morality, he asserts that the court may apply a moral standard
(within the limits of law) in resolving a case.

Rules and obligations:

Hart argues against the view that law or legal system can be understood in terms of coercive
order or predictable habits of behavior. His positive argument is that understanding “the general
idea of obligation ids necessary to understand (obligation) in its legal form.” He says to
understand obligation we need to understand social rules and their existence; which include
standard of conduct to which we appeal. The sense of obligation arises from social pressure. The
pressure here is generated by common hostility that produces feelings of shame and guilt but
stops short of physical sanctions. We find moral rules imposing moral sanctions. However,
when pressure takes the form of physical sanctions that is primitive kind of law imposing legal
obligations.

External and internal aspects of a legal rule:

Hart distinguished between “external” and “internal” aspects with respect to how rules of legal
system may be described or evaluated. The external aspect is independently observable fact that
people tend to obey the rule with regularity and internal aspect is the feeling of an individual of
being in some sense obligated to follow the rule.
Primary and secondary rules of obligation:

According to Hart, there are two types of rules, primary and secondary. Primary rules either
forbid or require certain action and can generate duties or obligation. For a citizen with an
internal perspective to the law, the existence of a primary rule will create an obligation for him or
her to behave a certain way. Secondary rules on the other hand, set up the procedures through
which primary rules can be introduced, modified or enforced. When analyzing the necessity for
secondary rules, Hart imagines a society with only primary rules, but concludes such a society
will face a number of challenges; because there would be no systematic method of rule creation.
There would be uncertainty about what the rules actually are, the system would be very static,
finally without a defined adjudication method, inefficiencies would arise from disputes over
whether a rule was actually broken. These three problems can be remedied with the introduction
of three types of secondary rules; the rule of recognition, rule of change, and rule of adjudication.
In most countries, the secondary rules of obligation are set out in written constitutions.

The rule of recognition:

Out of the above three secondary rules, Hart believed that rule of recognition is the most
important. The rule of recognition tells us how to identify a law. Its most important function is to
determine validity of a rule. Validity is what allows us to determine which rules should be
considered laws and therefore, which rules shall create obligation for citizens.

International law:

Hart further considers whether international law is genuinely law or is it better seen as
international morality and argues that it is indeed law though it differs in some important aspects
from municipal law.

Law and morality:

H.L.A Hart is a positivist, so he doesn’t believe there is a necessary connection between law and
morality. While he doesn’t acknowledge that there is a close relationship between law and
morality he doesn’t disagree that the development of law has been immensely influenced by
morality. He is known as a “soft positivist” which is an intermediate theoretical space between
natural law and traditional positivism. He asserts that a judge may apply a moral standard in
making a judgment subject to whatever constraints imposed by law.

British positivism’s contribution to jurisprudence:

British legal positivism’s contribution to jurisprudence is extensive and profound, there is no

denying that. Legal positivism embraced empiricism and science. This theory conveys that we
can make law better if we do not confuse it with morality. Therefore, from a positivist
perspective we can say that legal rules as laws are valid not because they are rooted in moral or
natural law, but because they are enacted by legitimate authority and are accepted by society as
such.