Legal Positivism: THE CONCEPT

OF LAW BY HART
Introduction
Hart’s Nature of Legal Theory
Hart on the Role of Language
Hart’s View on the Term ‘Law’
Hart’s Idea of Viewing ‘Law’ as a ‘RULE’
Primary & Secondary Rules
Criticisms on Hart’s Distinction of Primary and Secondary
Rules
Hart on Morality
Hart’s Descriptive Sociology
Conclusion
 Introduction
• Hart (1907-1992), who was a Prof of Jurisprudence at Oxford
during 1952-68, 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.
• He was 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’ (1961).
 Cont…
• Prof. Hart in Chapters 8 and 9 of ‘The Concept of Law’
expounds his view of morality. He claims that there is no
necessary connection between law and morality. However, this
does not mean that he has no view on morality. In ‘Liberty, Law
and Morality’ Hart discusses the role of morality in law creation.
Hart subscribes to paternal morality (to save people from harm)
and does not approve conventional morality as propounded by
judges like Lord Devlin.
 Cont…

• 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.
 Hart’s Nature of Legal
Theory
• Hart, like other jurists i.e. Austin and Kelsen also wants to
understand the perennial question: “what is law”. To this, Hart
identifies three recurrent questions which are related to law:
(i) to what extent is law related to
(ii) to what extent is legal obligation different from moral
obligation (see his moral principle of Nulla Poena Sine Lege).
(iii) to what extent is law an affair of rules
 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 are able to distinguish the difference between
‘being obliged’ and ‘being under obligation’.
 Cont..
• In addition to the above, according to Dworkin, the problem cannot
be resolved by recourse to linguistic philosophy. They could only
be approached at finding out the ‘point’ in which the statement is
made. Hence, Dworkin suggested the ‘interpretative approach’.
• 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.
 Cont…
• 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.

• 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. He thus stated that although it is possible to define an elephant
as ‘quadruped with thick skin, tusks and trunks’ or a lemon as a ‘yellow
citrus fruit that taste sour’, it is not so for law. 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). These are not merely predictive but there is a
justification to obey. The maker of the statement could be said to have
received a signal (not a sign) to remove his car from the yellow line or stop.
 Cont…
• Hart also tried to come up with a distinction which formulate the
cause of ‘nature and laws’ which governs the conduct of man.
• Hence, as a result of that distinction, Hart could perceive the
difference between ‘science and law’ through linguistic practices.
• For example, we find that we do not say that birds ‘break’ the law
if they do not fly south during winter but ‘reformulate’ our
understanding of the flight of birds.
• Furthermore, the same could not be said of a thief who ‘breaks’
the law when he steals. We find that ‘law’ is often associated with
‘law impregnated words’ such as ‘ought’, ‘would’ or ‘should’.
 Hart’s Idea of Viewing ‘Law’
as a ‘RULE’
• According to Hart, the basic failure of the 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 posed a question in his understanding of the
‘law’ that is, to what extent is law an affair of rules.
• Hart argued that in every society there are certain matters that
influence human behaviour and this can be divided into:
• (i) Social habits
• (ii) Social rules
• Mere social conventions
• Rules constituting obligations
• Rules which form part of the moral code of the society
concerned
• Rules which take the form of law
 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).
• 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.

• For example, the rules would have to contain restrictions: ‘on free use
of violence, theft and deception to which human beings are tempted
which they must, in general repress, if they are to co-exist in close
proximity to each other’.
 Cont…
• Hart argues that in such society (which operates solely on the
basis of primary rules), those who reject the rules ‘except where
fear of social pressure induces them to conform’ must be no more
than a small minority. Hart also make reference to a hypothetical
pre-legal society that lives by primary rules alone i.e. Where
legislature and court may be absent.
• Furthermore, Hart argues that there are certain defects of a system
solely based on ‘primary rules’ i.e. A pre-legal society.
• 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; except of course that they are
rules which a particular group of human beings accept.
• They will in this respect resemble our own rules of etiquette.
 Cont…
• 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.
• 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.
 Secondary rule

• According to Hart, ‘secondary rules’ are ones which let people,

by doing certain things, introduce new rules of the first kind, or
alter them. They give people (private individuals or public bodies)
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. Hart suggests
that introducing remedies for each of the defects of the primary
rules-only system would constitute ‘a step from the pre-legal
order into a legal world’. In other words, heading towards a
‘developed legal system’.
 Cont…
• Secondary rules are classified into three categories:
• rules of recognition,
• rules of change
• rules of adjudication.
(a) Rules of Recognition
• 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 ‘rules of recognition’ describe what usually officials
understand as the ‘sources’ of law.
• The ‘rule of recognition’ resolves problems of uncertainty in primary
rules i.e. Formal distinction of what is law and what is not. For example,
it helps to separate between legal rules and other social rules which are
based on morality, coercive norms etc
 Rules of Recognition

• The main features of a ‘rules 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.
 Rule of change
(b) Rules of Change
• Confer powers to legislators, judges and officials to amend,
repeal, enact new rules.
• Thus, the ‘rules of change’ play the role of remedying the defect
of being static caused by primary rules.
• In the area of private law, the ‘rules of change’ enable the private
citizens to change their legal position through the conferment of
power to make wills, marry, make contracts etc.
 Rules of Adjudication

(c) Rules of Adjudication

• Confer power on judicial officials to adjudicate on disputes and
breach of law. In other words, rules setting out standards for
determination by courts of the instances, extent and the
commensurate punishment or compensation for any breach of
law.
• The ‘rules 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
1. 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’. (See the
ECA 1972 in the context of Community or EU law).
2. 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. For example, the ECA 1972 which imposes a
duty on a judge to give precedence to community law. 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 impose duties on judges to exclude them .
 Cont…
3. Cohen once again argues that the labelling of the rules of evidence
and court procedure as secondary rules (often labelled the secondary
rules of adjudication) distorts the real function of these rules. For
example, the rules of evidence are not merely ‘adjuncts’ to rules
conferring powers upon officials to adjudicate. It is better to see them
as an independent body of law, which is being developed separately.
4. 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’.
5. Sometimes, a ‘primary rule’ could be about another ‘primary rule’ as
well. This is because certain elements of a ‘primary rule’ rides on
another ‘primary rule’, constituting a new offence. For example, we
find that the basic elements of theft in an offence such as burglary.
 Cont…
• Irrespective of the criticisms raised by the critics, it is possible to
defend Hart from such attacks by basically stating that he merely
wanted a ‘very loose’ and ‘general’ classification of rules.
• He is just appealing to the ‘uncontroversial’ (in this sense,
undeniable) 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 that
confer powers from those that impose duties’.
End of Lecture