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Jurisprudence

Harts The Concept of Law

Introduction
In this topic, we consider Harts Concept of Law. Hart is a positive
legal theorist in the sense that he gives descriptive priority to the
positive (i.e. written down, set down) law in his Concept of Law. Hart
refuses to provide a definition of law as he does not think that would
be a useful endeavour. Instead, he identifies three recurrent
questions: the difference between law and morality; the difference
between legal obligation and orders backed by threats; and what
does it mean to say that a rule exists?. He suggests that a focus on
these questions will provide a better understanding of the law. That
understanding is informed both by description (Hart as descriptive
sociologist) and by an analysis of concepts (Hart as analytical
positivist).

Hart identifies three objections to the conception of law as orders


backed by threats. First, the content of laws many of them do not
impose obligations. Secondly, the range of application laws often
have a self-binding force. Thirdly, the mode of origin customary
laws cannot be seen as orders issued by a sovereign. Hart also
identifies objections to the idea of a sovereign issuing orders that
are habitually obeyed: such an idea cannot explain why the subjects
obey the orders of a new sovereign nor why the orders of an old
sovereign continue to be obeyed.

This discussion allows Hart to introduce his idea that a rule is


different to a habit in that a rule provides a standard for behaviour.
A rule exists where there is a particular pattern of behaviour and
people view themselves as having an obligation to act in accordance
with that pattern. Those who have an internal perspective on the
law view rules as providing them with reasons to behave in a
particular way. There are two types of rule: primary and secondary.
Primary rules impose obligations and secondary rules provide
competences, both public and private. A rule of recognition is a type
of secondary rule which provides a criterion for the identification of
other rules. Hart suggests that there is a chain of rules of
recognition until one reaches the ultimate rule of recognition. The
ultimate rule of recognition allows one to identify all the other valid
rules of the legal system, but itself can be neither valid nor invalid.
It depends for its existence on acceptance of it on the part of legal
officials.

Hart believes that adjudication primarily involves the application of


rules (although he later made some allowance for principles in his
postscript). He argues that rules have open texture. Where their
meaning is clear, rules are simply applied by judges. However,
where their meaning is unclear (in the open texture), judges have
discretion.

Hopefully, this basic summary of some of the main features of Harts


Concept of Law will make it easier for you to understand the text.

Hart, pp.1-17
Hart considers that, even though there is much common knowledge
about law, there is no accepted answer to the question: what is
law? He considers a number of problems. Why does he think that
the reason for problems is not simply the existence of borderline
cases? What three recurrent questions does Hart identify? How
would you answer them?
Why is definition per genus et differentiam inadequate to answer
the question: what is law?. Ultimately, he says that the purpose of
the book is not to provide a definition of law, in the sense of a rule
by reference to which the correctness of the use of the word can be
tested; it is to advance legal theory by providing an improved
analysis of the distinctive structure of a municipal legal system and
a better understanding of the resemblances and differences
between law, coercion, and morality as types of social phenomena.
What do you think this means?

Hart, pp. 18-25


Why, according to Hart, is the theory of a command unhelpful in the
elucidation of law? What modifications does Hart make to the
gunman situation in order to establish a plausible description of law
which he can then criticise in later chapters?

Hart, pp.26-49
What three objections does Hart identify to the conception of law as
orders backed by threats? For each objection, what counter-
arguments does he identify and why does he reject the counter-
arguments? Is his rejection of the counter-arguments justified?
Overall, which of his three objections do you find most convincing?
Why?

Hart, pp.50-66
What problem is posed by the succession of Rex II to Rex I for the
conception of law as orders issued by a sovereign habitually obeyed
by his/her subjects? What is the difference between a social habit
and a social rule? What problem is posed by the persistence of Rex
Is laws in the reign of Rex II for the conception of law as orders
issued by a sovereign habitually obeyed by his/her subjects?

Hart, pp.79-99
At pp.82-91, Hart considers the nature of obligation. He
differentiates between the idea of being obliged to do something
and having an obligation to do something? What is this difference?
He explains obligation in terms of a distinction between the internal
point of view and the external point of view. What does he mean by
this? Do you think this is a good explanation of obligation? In this
light, what does it mean to say that a rule exists? Is Hart right to say
that those who reject the obligation imposed by rules complying
with rules only for fear of punishment do not have an internal
perspective on those rules?

According to Hart, what is a primary rule? What is a secondary rule?


Hart views secondary rules as remedies for the uncertainty, static
character and inefficiency of a legal system comprised solely of
primary rules. In this light, think of examples of secondary rules in
the Irish legal system. What place does the union of primary and
secondary rules have in Harts concept of law?

Hart, pp.101-110
What is a rule of recognition? In what sense is the rule of recognition
ultimate? How does an external theorist, such as Hart, identify the
rule of recognition of a system? How would officials of a legal
system identify the rule of recognition of their own legal system?
What is the rule of recognition of the Irish legal system? How do you
know?

110-117
What two perspectives on the ultimate rule of recognition does Hart
identify? Why is the assertion that a legal system exists a complex
assertion? Why does Hart consider that it is inappropriate to speak
of judges and legislators obeying the law when exercising their
official function? What are Harts two minimum conditions for the
existence of a legal system? What different reasons may people
have for obeying the law? Why must legal officials have an internal
perspective on the ultimate rule of recognition? What sort of
society would be a sheep-like society, for Hart?

117-123
Why might a legal system cease to exist? What happens where a
colony parts company from its former imperial master? Why need
there not be unified official consensus on all the original criteria of
legal validity in order for a legal system to be said to exist?

Hart, pp.124-141
What does Hart mean by the open texture of rules? What does Hart
mean by formalism? Hart sees legal systems as attempting a
compromise between two competing functional concerns: the need
for certain rules and the need to leave some matters open for later
decision. Is this an appealing account of rule-formulation and judicial
decision-making? Why? What does Hart mean by rule-scepticism?

Hart, pp.154-167
What does Hart mean by the necessary connection between law
and morality? What does Hart see as the distinction between
justice and morality? How is justice linked to fairness and equality?
What is the difference between justice in the administration of law
and justice in law? What does Hart mean by well-known foci of
human prejudice? What criteria guide the assessment of relevant
resemblances and differences? How is justice implicated in the
restoration of the moral status quo? What values does Hart conceive
of justice being subordinated to? Why is justice the most public and
legal of virtues?

Hart, pp167-180
What does Hart mean by the morality of a given society? How
does a distinction emerge between the rules that constitute the
morality of a given society and the legal rules of that society? How
does one mark out the relevant importance of these moral rules?
What similarities do these moral rules have with legal rules? What
moral rules are obviously required for social life? What four
features serve to distinguish morality from all other forms of social
rule (including legal rules)?

Hart, pp180-184
What facts constitute the core indisputable truth in Natural Law?
How does a moral ideal differ from a moral duty/obligation? How are
moral ideals related to moral criticism? What is the connection
between a personal moral ideal and a societal moral ideal?

Hart, pp184-193
What different possible relationships between law and morality does
Hart note? How, according to Hart, did Mill address Montesquieus
question? According to Hart, how does old natural law theory link
the question of what ought to occur with the question of what does
occur? Why does Hart say that the actions spoken of as naturally
good to do are those which are required for survival? Why does
Hart prefer to think of the survival urge as a contingent fact? What
does Hart mean by the minimum content of natural law?

Hart, pp193-200
What does Hart see as the rational connection between natural
facts and the content of legal and moral rules? What is the
difference between a cause and a reason? What are Harts five
truisms of the human condition? Which moral and legal content
does each truism suggest? How does this account of law and
morality develop a rigidly positivist account (such as one that says
that the law may have any content)?
Hart, pp200-212
Why is it that the move from the pre-legal society into the legal
society brings advantages at a cost? Why does this require us to
reconsider the link between law and morality? Why does Hart
disagree with the proposition that a legal system must rest on a
sense of moral obligation or on the conviction of the moral value of
the system? Why does Hart accept that morality influences the law?
Why does the role of morality in judging not undermine the
separation of law and morality? Why does moral criticism of law not
undermine the separation of law and morality? Are principles of
legality and justice necessarily part of law? How does Hart address
the argument that there a systems ultimate criterion of validity
necessarily includes moral values? What functional reasons does
Hart advance for preferring the positivists account of this issue?