The Concept of Law: Summaries

Submitted by: PASCUAL, Joshua Ejeil A.

A2021 / 2012 – 30683
Legal Theory – Prof. Laureta
 Chapter 1 of Hart’s The Concept of Law

In this introductory chapter, heart tackles the three recurring issues in defining law, which
are: 1) How does the law differ from and how is it related to orders backed by threats, 2) How does
legal obligation differ from, and how is it related to, moral obligation, and 3) What are rules and
to what extent is law an affair of rules?
In answering the first question, Hart goes on to tackle the comprehensive definitions
arrived at by scholars which, simply put, are rules and punishment. He goes on to tackle how such
definitions are mired with hesitations in their application due to the lack of an international
legislature and the blurry line between clear-cut and borderline cases.
As to the second question, Hart discusses the relationship of law and morality. There is
seemingly a fine line between the two, so much so that it raises the question of the justice and the
injustice of laws. According to Hart, these two concepts share only a vocabulary of rights and
duties, with morality being only one aspect of it.
As to the third question, Hart discusses the interplay between the standardized definition
for the rules and the different meanings they take according to varying contexts. According to Hart,
there exists two types of rules: mandatory, and others prescribing the procedures and formalities
of conduct. There seems to exist an unwritten law that certain rules – though not laws themselves
per se – are followed due to the societal structure.
As to the purpose of the book, Hart has this to say: “[It] 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 resemblance and difference between
law, coercion, and morality, as types of social phenomena.” With this, Hart hopes to contribute to
the ever-growing body of literature that seeks to provide a better understanding of the law.
 Chapter 2: Laws, Commands, and Orders

Chapter II of Hart’s book talks about the use of imperatives in society and in the general
sense of the word “law”. Hart distinguishes between “pleas”, “warnings”, and “requests” and their
functions in society. Building on this discussion, Hart uses the gunman situation – wherein a
gunman coerces a bank clerk to hand over notes – to further elucidate on the differences of the
imperatives that exist. In the gunman situation, Hart characterizes the relationship of the gunman
and the bank clerk as having its foundation on a “coercive order”. Such would be one of the
characteristics of law in society.

On the discussion of what law is, Hart continued to build on the gunman situation. He
discusses the power relationship between the gunman and the bank clerk. The gunman has the
authority, no matter how short, over the bank clerk to compel the latter to obey his command to
hand over the notes lest the gunman kills the clerk. Thus, in law, there seems to be a general order
backed by general threats for the obedience or compliance of said order given by someone with
general authority over society. This general order is what is known as “standing orders” since those
are for long-term compliance.

To end the chapter, Hart briefly discusses the territoriality of legal systems and the
authority of the sovereign. Legal systems are composed of a hierarchy of authorities giving
commands and orders for the general compliance of all. At the top of it is the sovereign which
exercises supreme authority over the subordinates. The sovereign’s authority is contained in the
territory where such is exercised, and other sovereigns are not compelled to follow the orders of
another.

Chapter 3: The Variety of Laws

In this chapter, Hart takes on the question on what laws would be like if it really consisted
of orders directed to us by a legal sovereign. He makes three criticisms, which are: 1) the Content
of Laws; 2) the Range of Application; and 3) the Mode of Origin.
 In regard the matter of content of laws, Hart speaks of the model of orders a being much
closer to the idea of all laws imposing duties similar to the way criminal law does. Hart states that
this idea extends to all categories of laws, such as torts, contracts, wills, etc. These categories
provide individuals with facilities for realizing their power, as it gives people the capacity to create
conditions beneficial for themselves within the coercive framework of the law.

Hart then delves into the conferment of power. He states that power falls into
distinguishable kinds themselves: rules regarding capacity, manner and form, maximum and
minimum duration of contracts, and powers of a judicial nature, among others. Moreover, Hart
says that the legal system makes provisions for power conferring rules. It would be ludicrous to
reduce the variety of laws into a single simple type as civil law; for it is the recipe for creating
duties, whereas, criminal law imposes these duties.

With regard to sanctions, Hart is of the opinion that the focus on such conceals the “self-
applicatory” nature of laws. He is of the belief that sanctions should come to play only when
there is a breach of an order or law. To hold otherwise would distort the distinctions within the
characters of law.

As regards the range of application, Hart states that the applicability of the “top-down”
scheme of law (wherein a sovereign imposes rules on the subjects), and the treatment of power
conferring rules as promises rather than coercive orders has an unlikely real life applicability.
These would create scenarios wherein the character of laws would be distorted.

Finally, on the matter of mode of origin, Hart discusses the legal status of a local custom.
It is not necessary to always find out the origin of a particular category of laws. What is
important is to look at is the local context of such laws. If such laws are reasonable, then it
should be regarded as arising over time instead of being “born” at an exact time and place.
Hart says that it is not true that custom is not law unless it is recognized by courts because in
fact IT IS law because people obey it for they have internalized it.
 Chapter 4: Sovereign and Subject

In this chapter, Hart discusses how Austin talks about the concept of illimitable sovereign
and those who habitually obey him. On the subject of “habitual obedience”, Hart sought to answer
the question on the continuity of law and the persistence of laws long after the sovereign and those
who have habitually obeyed such a sovereign have died.

In explaining the habit of obedience and the continuity of law, Hart traces the definition to
its meaning of respect for authority. However, there is no guarantee that this authority is to be
transmitted, most especially in the system of succession of monarchies. Hart offers the solution of
having a “system of rules which bridge the transaction from one law giver to another.” This can
be likened to a monarch father paving the way for his subjects to follow his monarch son upon the
former’s death.

In the case of legislators, Hart points out how different these are from the rules on the
succession of monarchies.

Hart then proceeds to talk about the complex social practice of rule-following. He does so
by comparing and contrasting habits and rules. Generally, habits and deviance from such do not
merit stringent punishments as opposed to rules. More so, habits are internally fueled; rules, on the
other hand, are more influenced by external factors.

On the topic of the persistence of laws, Hart tackles the question of how law can made by
an earlier legislator long dead still be law for a society that cannot be said to have habitually obeyed
him. According to Hart, the answer to this lies in the idea of substituting the simple habit of
obedience to currently accepted fundamental rules which govern the right to legislate and describe
the persons who have this right.
 Chapter 5: Law as the Union of Primary and Secondary Rules

According to Hart, Primary rules are that which require human beings to do or abstain from
certain activities whether they want to or not. In other words they impose duties which we people
have to perform.

He defines secondary rules by saying that they are parasitical upon primary rules as they
have the power to change or introduce primary rules. They confer powers, both public and private
and provide for the creation and variation of duties and obligations. According to Hart, it is the
union of primary and secondary rules that is the key to the science of jurisprudence. This union is
what would bridge societies from pre-legal to legal. However, Hart points out that there are defects
in systems that makes use of such rules, namely: uncertainty, staticity, and inefficiency.

Hart poses three remedies for such defects: Rule of Recognition, Rule of Change, and Rule
of Adjudication. In the Rule of Recognition, which is the remedy for uncertainty, he points out
that what is essential is the acknowledgment of writings (e.g. laws, memorandums, orders) as
authoritative. This rule deals more with the primary rules of obligation. In the Rule of Change,
which is the remedy for staticity, such arises through what we now call the process of legislation.
It is the act by which individuals or groups create new rights and obligations. In the Rule of
Adjudication, the remedy for inefficiency, there are conferred powers on certain individuals to
arbitrate or judge and also define in accordance with which adjudication would take place.

Chapter 6: The Foundation of a Legal System

According to Hart, the foundations of the legal system can be traced to the topic on the
Rule of Recognition. The foundations can be found in the acknowledgment of the writings and
other similar measures used by those in authority. These can be in the form of texts, enactments,
practices, declarations, or cases.
 Hart then proceeds to distinguish between a supreme criterion and an ultimate rule of
recognition. The former is that part of the rule of recognition which dominates over the rest of the
“elements” in such a rule. The latter is the entire system itself. It is the beginning and the ending.

On the topic of minimum conditions for the existence of a legal system, Hart lays out the
criteria: 1) internal attitude of officials and private citizens of the rule of recognition of the system,
and 2) and such rules must be valid and obeyed by persons from the public and private sectors. If
such criteria are met, then there would be a legal system. However, there are nuances in such a
description. Hart gives the examples of revolutions breaking out, ex-colonies having their
independence, and disunity among the officials in the legal system.

Chapter 7: Formalism and Rule-Sceptism

In this chapter, Hart talks of “two principal devices, at first sight very different from each
other, which have been used for the communication of such general standards of conduct in
advance of the successive occasions on which they are to be applied. One of them makes a maximal
and the other a minimal use of general classifying words. The first is typified by what we call
legislation and the second by precedent.” More so, Hart tells that “much of the jurisprudence of
this century has consisted of the progressive realization (and sometimes the exaggeration) of the
important fact that the distinction between the uncertainties of communication by authoritative
example (precedent), and the certainties of communication by authoritative general language
(legislation) is far less firm than this naive contrast suggests.” According to Hart, “The open texture
of law means that there are, indeed, areas of conduct where much must be left to be developed by
courts or officials striking a balance, in the light of circum- stances, between competing interests
which vary in weight from case to case.”

Hart then moves on to discuss Rule-Sceptism, which he defines as “the claim that talk of
rules is a myth, cloaking the truth that law consists simply of the decisions of courts and the
prediction of them.” He further argues that this is so because “the existence of a court entails the
existence of secondary rules conferring jurisdiction on a changing succession of individuals and
so making their decisions authoritative.” Hart says, “(t)he last but most interesting form of rule-
scepticism does not rest either on the open character of legal rules or on the intuitive character of
many decisions; but on the fact that the decision of a court has a unique position as something au-
thoritative, and in the case of supreme tribunals, final.

On the finality and infallibility in judicial decision, Hart talks about how a supreme tribunal
has the last word in saying what the law is, and that such statement if it be wrong has no
consequences within the system: no one’s rights and duties being altered. Hart then traverses to
the topic.

Chapter 8: Justice and Morality

In this Chapter, Hart talks about the general contention between law and morality, and this
should be taken as central in any attempt to understand the notion of law. Hart states that elements
are of subordinate importance, and that until the 'necessary' relationship with morality is made
explicit and its central importance seen, the mists which have so long clouded the understanding
of law cannot be dissipated.

Hart then discusses the “claim that between law and morality there is a necessary
connection has many important variants, not all of them conspicuous for their clarity. There are
many possible interpretations of the key terms 'necessary' and 'morality' and these have not always
been distinguished and separately considered by either advocates or critics. The clearest, perhaps,
because it is the most extreme form of expression of this point of view, is that associated with the
Thomist tradition of Natural Law. This comprises a twofold contention: first, that there are certain
principles of true morality or justice, discoverable by human reason without the aid of revelation
even though they have a divine origin; secondly, that man-made laws which conflict with these
principles are not valid law. 'Lex iniusta non est lex.'” Lastly, Hart concludes that the full
assessment of the different varieties of theory asserting a necessary connection between law ans
morals would take us far into moral philosophy.

On the topic of principles of justice, Hart discusses the notions of fairness/unfairness, and
justness/unjustness. The general principle latent in these diverse applications of the idea of justice
is that individuals are entitled in respect of each other to a certain relative position of equality or
in- equality. “This is something to be respected in the vicissitudes of social life when burdens or
benefits fall to be distributed; it is also something to be restored when it is disturbed. Hence justice
is traditionally thought of as maintaining or restoring a balance or proportion, and its leading
precept is often formulated as 'Treat like cases alike'; though we need to add to the latter 'and treat
different cases differently'.”

On the topic of moral and legal obligation, Hart continues with his discussion on justice.
Hart states that “justice constitutes one segment of morality primarily concerned not with
individual conduct but with the ways in which classes of individuals are treated. It is this which
gives justice its special relevance in the criticism of law and of other public or social institutions.
It is the most public and the most legal of the virtues. But principles of justice do not exhaust the
idea of morality; and not all criticism of law made on moral grounds is made in the name of justice.
Laws may be condemned as morally bad simply because they require men to do particular actions
which morality forbids individuals to do, or because they require men to abstain from doing those
which are morally obligatory.” Succintly, Hart concludes with stating that “Moral and legal rules
of obligation and duty have therefore certain striking similarities enough to show that their com-
mon vocabulary is no accident. These may be summarized as follows. They are alike in that they
are conceived as binding independently of the consent of the individual bound and are supported
by serious social pressure for conformity; compliance with both legal and moral obligations is
regarded not as a matter for praise but as a minimum contribution to social life to be taken as a
matter of course. Further both law and morals include rules governing the behaviour of individuals
in situations constantly recurring throughout life rather than special activities or occasions, and
though both may include much that is peculiar to the real or fancied needs of a particular society,
both make demands which must obviously be satisfied by any group of human beings who are to
succeed in living together.”
 Chapter 9: Laws and Morals

In this chapter, Hart discusses natural law and legal positivism. He starts by stating that
“THERE are many different types of relation between law and morals and there is nothing which
can be profitably singled out for study as the relation between them. Instead it is important to
distinguish some of the many different things which may be meant by the assertion or denial that
law and morals are related.” According to Hart, “The doctrine of Natural Law is part of an older
conception of nature in which the observable world is not merely a scene of such regularities, and
knowledge of nature is not merely a knowledge of them.”

On the topic of minimum content of natural law, Hart states that “The general form of the
argument is sim- ply that without such a content laws and morals could not forward the minimum
purpose of survival which men have in associating with each other. In the absence of this content
men, as they are, would have no reason for obeying voluntarily any rules; and without a minimum
of co-operation given voluntarily by those who find that it is in their interest to submit to and
maintain the rules, coercion of others who would not voluntarily conform would be impossible.”
Hart categorizes the content of certain legal and moral rules with the following truism: human
vulnerability ,approximate equality, limited altruism, limited resources, limited understanding,
and strength of will.

On legal validity and moral value, Hart states that “The protections and benefits provided
by the system of mutual forbearances which underlies both law and morals may, in different
societies, be extended to very different ranges of persons. It is true that the denial of these
elementary protections to any class of human beings, willing to accept the corresponding
restrictions, would offend the principles of morality and justice to which all modern states pay, at
any rate, lip-service. Their professed moral outlook is, in general, permeated by the conception
that in these fundamentals at least, human beings are entitled to be treated alike and that differences
of treatment require more to justify them than just an appeal to the interests of others….. Yet it is
plain that neither the law nor the accepted morality of societies need extend their minimal
protections and benefits to all within their scope, and often they have not done so.”
 Near the end of the chapter, Hart lays out topics which can help further the discussion on
law and morals. These are: 1) power and authority, 2) the influence of morality on law, 3)
interpretation, 4) the criticism of law, 5) principles of legality and justice, and 6) legal validity and
resistance to law. Hart ends the chapter by stating that “A concept of law which allows the
invalidity of law to be distinguished from its immorality, enables us to see the complexity and
variety of these separate issues; whereas a narrow concept of law which denies legal validity to
iniquitous rules may blind us to them.”

Chapter 10: International Law

In this chapter, Hart starts with the discussion on the sources of doubt. He states that
“Though the idea of the union of primary and secondary rules has these virtues, and though it
would accord with usage to treat the existence of this characteristic union of rules as a sufficient
condition for the application of the expression 'legal system', we have not claimed that the word
'law' must be defined in its terms. It is because we make no such claim to identify or regulate in
this way the use of words like 'law' or 'legal', that this book is offered as an elucidation of the
concept of law, rather than a definition of 'law' which might naturally be expected to provide a rule
or rules for the use of these expressions.” International law, Hart says, presents us with an
interesting case. “or, though it is consistent with the usage of the last I so years to use the expression
'law' here, the absence of an international legislature, courts with compulsory jurisdiction, and
centrally organized sanctions have inspired misgivings, at any rate in the breasts of legal theorists.
The absence of these institutions means that the rules for states resemble that simple form of social
structure, consisting only of primary rules of obligation, which, when we find it among societies
of individuals, we are accustomed to contrast with a developed legal system.”

Hart tackles the question, “Is international law really law?”. Hart suggests that, “It is true
that among the reasons which have led theorists to hesit- ate over the extension of the word 'law'
to international law, a too simple, and indeed absurd view, of what justifies the application of the
same word to many different things has played some part. The variety of types of principle which
commonly guide the extension of general classifying terms has too often been ignored in
jurisprudence. None the less, the sources of doubt about international law are deeper, and more
interesting than these mistaken views about the use of words.”

There are two principal sources of doubt concerning the legal character of international law
that Hart urges us to consider, and the steps which theorists have taken to meet these doubts. On
this topic, Hart has this to say: “Both forms of doubt arise from an adverse comparison of
international law with municipal law, which is taken as the clear, standard example of what law is.
The first has its roots deep in the conception of law as fundamentally a matter of orders backed by
threats and contrasts the character of the rules of international law with those of municipal law.
The second form of doubt springs from the obscure belief that states are fundamentally incapable
of being the subjects of legal obligation, and contrasts the character of the subjects of international
law with those of municipal law.”

On the topic of obligations and sanctions, Hart poses the question, “…what is meant by
saying of a whole system of law that it is ‘binding’?”. Hart answers: “To argue that international
law is not binding because of its lack of organized sanctions is tacitly to accept the analysis of
obligation contained in the theory that law is essentially a matter of orders backed by threats.”
However, Hart says that we need to “consider another form of the argument, more plausible
because it is not committed to definition of obligation in terms of the likelihood of threatened
sanctions.”

With regard to obligation and the sovereignty of states, Hart has this to say: “One of the
most persistent sources of perplexity about the obligatory character of international law has been
the difficulty felt in accepting or explaining the fact that a state which is sovereign may also be
'bound' by, or have an obligation under, international law. This form of scepticism is, in a sense,
more extreme than the objection that international law is not binding because it lacks sanctions.
For whereas that would be met if one day international law were reinforced by a system of
sanctions, the present objection is based on a radical inconsistency, said or felt to exist, in the
conception of a state which is at once sovereign and subject to law. Examination of this objection
involves a scrutiny of the notion of sovereignty, applied not to a legislature or to some other
element or person within a state, but to a state itself. Whenever the word 'sovereign' appears in
jurisprudence, there is a tendency to associate with it the idea of a person above the law whose
word is law for his inferiors or subjects.”

On international law and morality, Hart says that “international law resembles such a
regime of primary rules, even though the content of its often elaborate rules are very unlike those
of a primitive society, and many of its concepts, methods, and techniques are the same as those of
modern municipal law. The difference in character between international law and anything which
we naturally think of as morality has another aspect. A legislature cannot introduce a new rule and
give it the status of a moral rule by its fiat, just as it cannot, by the same means, give a rule the
status of a tradition, though the reasons why this is so may not be the same in the two cases.
Accordingly morality does not merely lack or hap- pen not to have a legislature; the very idea of
change by human legislative fiat is repugnant to the idea of morality. This is so because we
conceive of morality as the ultimate standard by which human actions (legislative or otherwise)
are evaluated. The contrast with international law is clear. There is nothing in the nature or function
of international law which is similarly inconsistent with the idea that the rules might be subject to
legislative change; the lack of a legislature is just a lack which many think of as a defect one day
to be repaired.”