INTRIDUCTION

Herbert Lionel Adolphus Hart (18 July 1907 – 19 December 1992), usually cited as H. L.
A. Hart, was a British legal philosopher, and a major figure in political and legal
philosophy. He was Professor of Jurisprudence at Oxford University and the Principal
of Brasenose College, Oxford. His most famous work is The Concept of Law (1961; 3rd
edition, 2012). He is considered one of the world's foremost legal philosophers in the
twentieth century, alongside Hans Kelsen Hart is well known as having had an impact
on jurisprudence, especially for his work on a modern approach to positivism, almost
single-handedly changing the borders of contemporary positivism by adopting an
analytical and philosophical approach to legal theory. Hart’s magnum opus is his 1961
book, The Concept of Law where he lays out the meaning of legal concepts, how we
deploy them and how we consider the law and legal system. The Concept of Law is a
jurisprudential heavyweight; perhaps the most important document in analytical
jurisprudence since John Austin’s The Province of Jurisprudence Determined. Hart was
undoubtedly a positivist and yet differed markedly from previous positivists like Austin
and Bentham. The Concept of Law is the key behind this, setting out Hart’s views on
rules, legal systems and positivism in general. In this assignment, the key ideas from
The Concept of Law will be examined and their importance analysed to show the impact
the book has had on jurisprudence and modern legal positivism.

Commands, rules and the rule of recognition

John Austin was an eminent positivist perhaps best known for his command theory:
viewing laws as commands backed by sanctions. Hart differed markedly from Austin in
that he rejected the idea of laws as commands, but supported the concept of law as
rules: while we can command others to perform actions, we cannot command
ourselves. The command theory of law is rejected by Hart: after all, is an order by a
gunman not a command backed by a sanction Indeed, Hart is quick to point out that
there are numerous laws that are not commands at all. Hart gives the example of wills:
while there are disadvantages for non-compliace with the Wills Act, 1837 (such as the
will being invalid for non-compliance with the Wills Act), it is not a breach or a violation
of any obligation or duty. Rather, many laws empower citizens to create and enforce
contracts. Hart addresses the gunman analogy by distinguishing between rules and
orders: rules apply to all persons and deal with general courses of conduct. By contrast,
orders are individual, face-to- face directives mandating a particular way of conduct. A
command from a gunman is an order rather than a rule, whereas legal rules such as the
Wills Act empower citizens to perform actions without being backed by a sanction.

In The Concept of Law, Hart distinguished between two key types of rules: the first
being that of primary rules. Primary rules are ones which give a rough idea of
permissible conduct within society (they are close to morality as they are basic rules of
obligation that arise through deliberation). However, these rules are deficient in that are
only effective in primitive societies, they are static/unchanging and they are vague. Hart
picked up on these, noting the need for secondary rules; effectively ways of modifying
and altering deficient primary rules. These became necessary as societies evolved and
grew. They differed from primary rules in that they were entrusted to specific persons or
groups of persons such as lawyers, judges and legislatures.Unlike primary rules,
secondary rules confer power rather than imposing duties with the key exception being
the Rule of Recognition.
To Hart, the Rule of Recognition is paramount in identifying a law. That is, a meta-rule
that is the fundamental ‘rule for conclusive identification of the primary rules of
obligation’. The Rule of Recognition varies between different legal systems and in a
developed legal system, can become fairly complex. To Hart, rules are only valid under
a legal system if they satisfy the Rule of Recognition and must be one where the rule is
accepted by officials: in the UK the rule of recognition is seen via statutes and
precedents and a similar system would be seen in Ireland, including compliance with
the Irish Constitution. While this does not mean there is one single magical rule which
makes a rule a legal one, it does create a criterion where a legal rule can be deduced
from a rule of mere obedience. Examining the behaviour of officials allows us to
discover the regular conduct that decides disputes and laws, it might not be stated but it
is shown through practice. By taking an empirical approach, we can deduce a legal
system’s Rule of Recognition.The Rule of Recognition can best be deduced as a social
rule, arising informally out of the practices and customs of a particular social group.That
something is a Rule of Recognition in a given society essentially relies on its recognition
by citizens, even if they are unable to comprehensively state what the rule of recognition
is.
It is therefore through The Concept of Law that Hart made an especially seminal
contribution to modern positivism. Hart’s criticism of Austin’s command theory was
comprehensive, not only noting the shortcomings of sanctions backed by a command
through the gunman analogy, but especially by his highlighting that many modern laws
are power conferring rather than strictly duties. Austin was a veritable giant in legal
positivism and to so for Hart to so deftly point out the Command Theory’s inherent
problems is no mean feat. Likewise, The Concept of Law is noteworthy for dividing rules
between primary and secondary rules. This distinction is important given that secondary
rules effectively act as rules for primary rules with the rule of recognition being of special
note. To Hart, the legal system can be best understood as a union of primary and
secondary rules, with the Rule of Recognition being the fundamental way of determining
what exactly counts as part of the law. The Rule of Recognition is especially seminal,
acting as an underlying feature of every law and allowing citizens and jurists to
empirically deduce what constitutes a law under their own legal system. However, it is
the general combination of primary and secondary rules that composes what Hart calls
the ‘the key to the science of jurisprudence’.

Morality and the law

Morality is a concern in legal circles, being used to justify everything from prosecuting
consenting sado-masochists (as per the Brown case) to limiting personal rights under
the Irish Constitution.While Hart does not deny the importance of morality, he feels that
laws must be enacted by separating the law’s morality from an accurate analysis.
Neither does Hart claim that morality has no influence on the law; law is influenced by
moral views but it still needs to abide by the Rule of Recognition before it can be seen
as a legal term. Hart can best be described as a moral relativist. While he fully accepts
that law is heavily influenced by morality, Hart rejects that law must conform to morality.
Given that law is a human institution, law is highly fallible: as evil people can make laws,
inherently unjust laws can be passed. Hart is unquestionably a positivist, holding that
key positivist belief in the separation of law and morality. However, Hart accepts that
concepts that are widely seen as moral frequently overlap with what is necessary for a
functioning society, with both law and morality involving similar concepts of protection at
a minimum. However, it would be impossible to overly separate law and morality given
the law follows morality. Hart differed markedly from previous positivists in that he
accepts the concept of ‘indisputable truth’ in natural law. He also criticised positivists
such as Bentham and Austin for treating the connection between law and morality as
something to be attacked rather than analysed. Morality also has a crucial role to play in
laws given that it forms the core of legal systems within small communities (primary
rules). Virtually all legal systems share common characteristics such as limiting when
violence and theft can be used and regulating property: Hart sees this common grasp of
law not as coincidental but arising from natural necessities of civilization.

Ultimately, ‘The law of every modern state shows […] the influence of both the accepted
social morality and wider moral ideals’. Statutes are often ‘legal shells’ which are
fleshed out by moral principles whereas secondary rules such as contracts and liability
are often curtailed by morality. Hart acknowledges that no positivist can deny the
connection between law and morals. Hart takes a nuanced approach to morality,
recognising the limitations of morality, while accepting the impact (and usefulness) that
morality can have upon law, given the requirement of certain rules for a society to exist.

Rules, both Internal and External

In addition to rejecting Austin’s command theory, Hart also rejects the concept that rules
are always externally observable. There is also a social dimension to rules in how
citizens perceive a rule, not merely their attitude towards it. These can be distinguished
from habits which can simply involve the common behaviour of a group: deviation from
this behaviour is not necessarily a bad thing but neither is the convergence of behaviour
enough to constitute a rule. Rules are of such a nature that deviation from them is
enough of a reason to require them to be rules in the first place, with criticism of
deviation being seen as both legitimate and justifiable by the majority of citizens. In
addition, such rules are deemed as understandable both by those who make the laws
and those subject to them. However it is the third aspect of rules that Hart views as
especially important. Both social rules and habits share an external aspect, given that
they both involve regular, uniform behaviour observable to outsiders. Social rules differ
markedly in that they involve an internal aspect: they regard it as standard for all in a
society. Hart uses chess as an example to differentiate between internal and external
aspects: anyone observing chess players could see that they move queens in a certain
way (external aspect of a rule) although this could merely be habitual.However, chess
players view the way queens’ move as important and will criticise opponents who do not
behave in this manner, demanding they conform to the rules of the chess: this is the
internal aspect of the rules of chess. It is here that Hart differs from Austin who focussed
on the external aspects of law: Hart notes the importance of the internal aspects of
law.Austin’s approach makes it far too difficult to differentiate rules from habits: this is
insufficient, given the importance of the sources of rules to positivists. As such, Hart can
be seen to have made a fundamental impact in this area, changing how rules are
viewed and allowing differentiation which would otherwise make classifying social rules
far more opaque than needed. It is through our observance of social rules that we can
deduce the social source of our legal rules which is far more important than commands
or sanctions given that they are a real manifestation of our thoughts, values, words and
actions.

Legal systems

For Hart, a legal system requires two conditions.The first condition being the
acceptance by the authorities of the Rule of Recognition, viewing it as something
requiring compliance. This applies to public officials under the expectation that they will
abide the rules themselves and punish transgressions of the system by other officials.
The second condition is that the rules of behaviour which are valid under the system’s
concepts of validity must also be generally obeyed. This applies to private citizens and it
merely requires their abiding by the rules, even if they only abide by it out of fear of
punishment. All that is required is obedience. It is here that a key point of the internal
attitude to rules can be seen: Hart does not see it as necessary for private citizens to
accept the primary rules of recognition: only public officials must adopt an internal point
of view. Valid rules can still exist independently of whether or not they are being
enforced: a law might have been passed many years ago and no longer be enforced,
and yet, as it came into being under the Rule of Recognition, it is still valid although no
one thinks to abide by it.

Language

A simple and yet important way that Hart presented a new legal theory was in his
analysis of legal expressions as is shown through day to day use of legal language.
Hart was from the English school of analytical jurisprudence and so sought to clarify
legal concepts to try and work out what they were referring to. For Hart, we cannot
properly understand law when it is disconnected from the context where the terms
emerge and develop. Language has inherent deficiencies in communicating law, due to
the uncertainties that persist in language; even canons of interpretation’ cannot entirely
eliminate the uncertainty of language nor can they be of much help in the law’s
interpretation. Hart holds that the definitions of legal terms require periodic revision due
to the changing circumstances with the effort to uncover these aspects highlighting the
nature of law.After all, analytical jurisprudence is rooted in empiricism whereby concepts
arise from observable reality.

Criticisms

Hart’s theory on law is fundamentally based around the Rule of Recognition so it is here
that he is most criticised and discussed. The main way Hart is criticised is via the
‘incompleteness thesis’ which holds that legal systems are so complex that no Rule of
Recognition can offer a complete account of legal obligations. Dworkin is a key critic
here, noting that law consists not merely of rules but also ‘non-rule standards’: courts
will draw on these (moral or political) principles to reach a decision and that there is no
Rule of Recognition which distinguishes between legal and moral principles. Such
‘principles and policies’ (as Dworkin labels them) are justified on moral or ethical
grounds but as they are absent from Hart’s legal theory, they show a lacuna in his
reasoning. Such principles and policies are frequently referenced by judges without
judges there being any obvious account for how they found their way into law. An
example of this being the case of Riggs v Palmer where a man murdered his
grandfather but still claimed entitlement under the will: the court ruled he was unable to
profit from his own wrongdoing, appealing to a principle that did not exist in law under
any Rule of Recognition and even went against the statute. That these legal obligations
can exist independently of the Rule of Recognition puts doubts on Hart’s legal theory.
However, Hart fought back in the second edition of The Concept of Law, acknowledging
how influential Dworkin’s criticisms were. Hart concedes the ambiguity of some of his
work and sought to address this, accepting that there can be moral reasons for coercion
and moral justifications for conforming to the law.71 Perhaps most crucially on the Rule
of Recognition, Hart notes that in many countries, the Rule of Recognition can often
require conformity to moral principles.
A further criticism of the Concept of Law is the connection thesis. This holds that legal
obligations are on par with moral obligations, requiring a degree of moral and ethical
reasoning to understand legal principles. Legal practice needs to be directly answerable
to primary obligations existing independently of the secondary Rule of Recognition. This
essentially draws from a critical enquiry into the Rule of Recognition, with questions as
to the validity of the Rule of Recognition itself, given the ambiguity over where its validity
comes from.

Analysis

There can be little doubt that the Concept of Law is anything less than a seminal piece
of work in modern legal positivism, being variously described as ‘the most important
book in the field of analytical jurisprudence to appear for many years’, ‘the springboard
[for] several legal theorists [and the] inspiration for many more’ and ‘perhaps the most
important work of legal philosophy of the twentieth century’.The Concept of Law offers a
multitude of insights into the nature of law while providing an excellent framework of
legal thought, encompassing everything from the tricky natural law/positivism debate to
the oft-ignored role of language in legal terms.The Concept of Law shows a new theory
in how it brings a new analytical jurisprudence approach to positivism, approaching
jurisprudence from a clearly positivistic viewpoint while differing from previous positivists
such as Austin and Bentham. As Hart notes in the 2nd edition of the book, he seeks to
define morality, law and coercion as differing but still related social phenomenon. Hart
acknowledges the importance of morality, especially the core of indisputable truth and
rejects Austin’s concept of law as fundamentally a series of coercive orders. Indeed,
positivism before Hart was mainly concerned with the command theory: Hobbes and
Austin both agreed that it is the threat of punishment that distinguishes legal obligation
from moral obligation. However, Hart’s new approach to legal theory meant he holds the
key to jurisprudence as being the combination of primary and secondary laws, which is
especially important given his highlighting of legal systems including laws which contain
no sanctions but instead empower citizens. Hart differed notably from previous
positivists as The Concept of Law rejects the idea that legal authority is shown in
habitual obedience.
The Concept of Law is also crucial in its highlighting of the difference between rules and
habits. Austin focussed overly on the external aspects of law, Hart pointed out that
observing the external aspects of a rule made them indistinguishable from regular
habits. Hart is a positivist, seeing law as mainly based around its sources rather than its
merits. As such, distinguishing rules from habits is crucial, given that citizens treat the
rule as a imposing obligations and conferring rights rather than as an observable
regularity. Indeed, Hart views Austin’s failure to examine the concept of rules as the
fundamental inadequacy of Austinian jurisprudence.
That The Concept of Law has caused such controversy is a testament to its importance
to modern positivism. In addition, it has influenced numerous jurists who have gone
onto add to the field of jurisprudence themselves. A case in point is Joseph Raz, a
famed positivist who was himself a student of Hart. Raz was not only heavily inspired by
The Concept of Law but used it as a springboard to develop his own ideas and add to
jurisprudence. So great was Raz’s respect for The Concept of Law, that he edited a
second edition of the book, including additional sections detailing Hart’s response to
various critics such as Dworkin, whereas Hart has been defended from Dworkin’s
criticisms from a variety of jurists.
Conclusion

The conclusion can therefore be drawn that The Concept of Law had a critical impact on
modern jurisprudence. While the Rule of Recognition is perhaps the most famous
theory from The Concept of Law, it is by no means the most important, with rules,
semantics and morality all playing key parts in Hart’s jurisprudence. However, probably
the most influential aspect of Hart’s theory was the fresh approach he took to positivism.
An innovative analysis of the internal aspects of law, the connection between law and
morality and the rejection of the command theory all mark The Concept of Law as a
colossal addition to modern legal positivism.
Hart’s impact remains controversial with the Hart/Dworkin debate on positivism/natural
law and the Hart/Fuller debate on morality remaining famous in the jurisprudential world.
That he is viewed as someone worth arguing against by such famous jurists is a
testament to his intellectual pedigree whereas there seems to be unanimous agreement
that The Concept of Law is one of the most important books of modern jurisprudence,
influencing and energising a variety of jurists. For this reason, it is clear that Hart made
a Herculean contribution to legal positivism.
Bibliography

HLA Hart. The Concept of Law (Oxford University Press, 1961)

Hart The Concept of Law (2ND Ed) p.i

David Ingram Law: Key Concepts in Philosophy (Continuum, 2006)

Mark Murphy. Philosophy of Law: The Fundamentals (Blackwell, 2007)