Hart’s concept of law
Prof H.L.A.Hart in his Concept of Law (1961) has tried to reconcile the conflict between the theories of Austin and Kelsen that emphasize imperative authority as the essential element of a legal norm and the theories of Savigny and Ehrlich that emphasize social acceptance as essential characteristic of law.
Hart has revived interest in analytical positivism in 20th century. In his ‘The Concept of Law’ he expounded his legal theory as a system of rules by exploring the relationship between law and society. Hart differs from his analytical predecessors by clearly stating that his main objective has been to further ‘the understanding of law, coercion and morality as different but related social phenomena.’ Hart’s concept of law emerged as a substitute to Austin’s theory. Hart has dealt exhaustively with the problems faced by Austin. Hart’s theory of law is entirely different from the orthodox analytical positivism of Austin and his views in regard to nature of law is different having moral and social implications. That is why Hart is styled as naturalist among positivists.
definition and theory in jurisprudence
In his inaugural lecture, published as “Definition and Theory in Jurisprudence” he observed that the questions such as “What is a State?” “What is law?” “What is right?” have great ambiguity. He believed that a fruitful approach would be to elucidate the conditions to which true statements are made in legal contexts about ‘state’, ‘law’, ‘rights’ etc. This project was pursued in his ‘The Concept of Law’. There is no definition of law or of a legal system as such in the concept. The aim is elucidation, elucidation of concepts like rule and obligation, which have puzzled generations of legal thinkers. For Hart, we cannot properly understand law unless we understand the conceptual context in which it emerges and develops.
The relationship between law and language pervades much of his thinking about law. He argues, for instance, that language has an ‘open texture’; words have a number of clear meanings, but there are always several ‘penumbral’ cases where it is uncertain of rules can provide predetermined answers to every case that may arise. This does not mean, however, that the meaning of words is completely arbitrary and unpredictable. In most cases judges have little difficulty in simply applying the appropriate rule without any need to call in aid moral or political considerations.
Hart objected to Austin’s command theory on the ground that it failed to encompass the “variety of laws”. The definition of law as a rule of conduct backed by a threat of sanction may be true of criminal law; but not of civil laws which mould many legal relations between individuals, such as contracts, wills, marriages. Punitive sanction cannot be said to be of essence of law in modern days. Hart believed the basis of legal norms to be social acceptance.
Rules of obligation
For Hart the legal system is a system of social rules. The rules are “social” in two senses, first in that they regulate the conduct of members of societies; secondly, in that they derive from human social practices. They are not the only social rules. There are, for example, rules of morality. Like rules of morality, laws are concerned with obligations; they make certain conduct “obligatory”. But unlike rules of morality they have “systematic quality”. There is an interrelationship between two types of rules, called by Hart “primary rules” and “secondary rules.”
All societies have social rules. These include rules relating to morals, games etc., as well as obligation rules which impose duties or obligations. Obligation rules may be divided into moral rules and legal rules. Legal rules are divisible into primary rules and secondary rules.
Hart says that there is a need for obligation rules in all societies. Social acceptance predominated in primitive societies; organized authority predominates in developed societies. The reason is that rules of social conduct in primitive societies were uncertain and inefficient. According to Hart, the remedy for uncertainty is general acceptance of validity of the rules, and remedy for inefficiency is authoritative adjudications on breach of rules. These remedies necessitated the rise of a centralised authority to effectuate them, and thus arose the State. Enunciation of law by the State assured authority and certainty to it. When the government of the State was by the people through their elected representatives, the legislation involved social acceptance also.
Law as system of rules
Natural law theorists look upon law as consisting of rules dictated by reason, positivists as rules decreed by the sovereign and realists as rules applied by courts. However, none of these theorists provides us with an adequate analysis of the term “rule” or the notion of a system of rules.
Rules are concerned not with what happens but with what ought to be done; they are imperative and prescriptive rather than indicative and descriptive. In some cases rules may be constitutive and they will define the activity in question. In others they regulate activities which activities would in any way take place whether there were rules or not. Examples of the former are rules for playing of bridge, football, tennis etc. and of the latter rules of grammar, spelling, etiquette, law etc. American realists identify the rules with regularities of judicial behaviour.
Rules involve two aspects, external behaviour such as for example, stopping at a traffic signal and internal attitude that such a behaviour is obligatory. But in order to ascertain whether a person accepts the existence of a rule we must look not to the inner workings of his mind but to what he says and how he acts.
Here there is a better explanation of compliance with law than that of Austin. Compliance arises not out of coercive process but out of a sense of obligation. And this is shown by the fact that even a person who cannot be compelled to obey the law is still considered as having an obligation to obey. Law and rules are concerned with obligation rather than coercion.
Coming now to the legal rules we find that in some respects they are analogous to the rules of games, clubs etc. But again moral and legal rules have also something in common. Both legal and moral rules are not optional. Rules of games may apply to players and that also during the time of the play. But not so the legal or moral rules. Morality may apply to every human act, while law, though narrower in scope, extends to a number of such acts. Secondly, games and clubs are not compulsory, withdrawal and resignation are permanent possibilities. There is no such choice in the case of legal and moral rules. Law applies to a citizen whether he likes it or not. Of course, one may withdraw from a particular legal system and this involves emigration from a state but, even so, avoidance of legal systems altogether is not possible.
Hart’s analysis of the term “rule” explaining the internal and external aspects or rule observance is really valuable.
Hart asked us to imagine a community in which only primary rules exist without a legislature, courts or officials of any kind. Such a group lived in a pre-legal state. Hart says, such a primitive small community is closely knit by ties of kinship, common sentiment, and belief and placed in a stable environment. They could live successfully by such a regime of unofficial rules. According to Hart, primary rules are those that impose duty upon individuals and are binding because of social acceptance. In primitive community, there were only primary rules which imposed duties or obligations on individuals. Such a community suffers from three defects because of social control based on a regime of unofficial primary rules.
The first defect, in the simple social structure of primary rules, is uncertainty. In such a community there is no systematic procedure to identify as to what the rules are or what their scope is. There is no definitive test to distinguish legal rules from the other social rules.
The second defect is the static character. There is no instrument or authority in such a society for deliberately adopting the rules or introducing new rules and no way to modify the primary rules. Change is accomplished only by the slow process of growth and decay.
The third defect of the regime of primary rules is the inefficiency. There is no agency for determining the rule violations and for settlement of disputes. The rules are applied only by diffuse social pressure.
According to Hart, secondary rules are power conferring rules such as the laws that facilitate the making of contracts, wills, trusts, marriage etc. (Private power), or which lay down rules governing the composition and powers of courts, legislatures and other official bodies (Public power). These rules are secondary to primary rules. According to Hart, there are three kinds of secondary rules.
Hart says, the remedy for the three defects of the regime of primary rules is the supplementation of primary rules with secondary rules. The introduction of secondary rules is a step from the pre-legal state to legal state. The three defects were removed by the introduction of three types of secondary rules. They are rules of recognition, rules of change and rules of adjudication.
The remedy for uncertainty of the regime of primary rules is the introduction of ‘rule of recognition’. The rule of recognition authoritatively settles the doubts as to what the rules are and what their scope is. It provides criteria for how legal rules are to be identified, to be followed and enforced within the community.
The remedy for static character of primary rules is the introduction of rules of change. These rules regulate the process of change by conferring the power to enact legislation in accordance with specified procedures. These rules also confer power on ordinary individuals to produce changes in the legal relationships they have with others.
The remedy for inefficiency of the regime of primary rules is the introduction of the rules of adjudication. These rules confer competence on officials to pass judgment in cases of alleged wrongs and also to enforce the law. These rules provide a mechanism for effective adjudication of rule violations.
These secondary rules relate in various ways to the primary rules. Rule of recognition lays down criteria for identifying the primary rules. The rules of change provide mechanism for changing primary rules. Rules of Adjudication specify for determinations whether primary rules have been violated. Hart remarks: Law is a union of primary and secondary rules.
Rule of recognition:
Hart’s view is that a legal system arises from the combination of primary and secondary rules. Primary rules are those which simply impose duties; secondary rules are power conferring rules. Of secondary rules, the most important are those which confer power to make and unmake other rules in the system. In other words, rules that determine the criteria which govern the validity of the rules of the system. Hart called them as rule of recognition. These are rules of a higher order, being rules about the other rules of the legal system. They can be looked at from two different angles. We may regard them as prescribing the method and procedures for creating, annuling and altering rules of law. Or we may look on them as tests to discover whether a given rule is one of the legal system in question.
The English rule about parliamentary sovereignty at one and the same time lays down the procedure for legislation and serves as one means of identifying rules as rules of English law. It is these rules of recognition which in Hart’s view transform a static set of unrelated rules into a unified dynamic legal system capable of adoption to social change. He parts company from Kelsen, however, in refusing to regard them as hypothesis. The basic rule of a legal system is not something which we have to assume or postulate. On the contrary it is itself a rule accepted and observed in the society in question. Unlike the other rules of the system it cannot, of course, be derived from any more basic rule. It is nonetheless a rule – a customary rule, acceptance and observance of which finds expression in social practice and the general attitude of society.
Although the rule about parliamentary sovereignty in England cannot be derived from any other rule of English law, it is more than a hypothesis, it is a customary rule of English law, followed in practice and regarded as a standard requiring compliance. Certainly the basic secondary rules concerning the criteria for identification provide unifying force to a legal system. But are there not other factors of equal importance? Suppose for example, that the legislative sovereign is forcibly replaced by a new body, but that law remains in every other respect unaltered, and that the various rules in the different branches of private and public law retain their validity. Hart’s analysis would suggest that in such a case the legal system must be said to have changed. But it might equally well be argued that what was changed is not the legal system but only the basic constitution of the State.
Well developed legal systems, such as English Law, contain both primary rules and secondary rules in Hart’s sense. International Law is a less developed system, which lacks the basic rules relating to the criteria for identification, it therefore qualifies in Hart’s view as a mere set of primary rules.
According to Hart, the rule of recognition is essential to the existence of a legal system. It determines the criteria by which the validity of the rules of a legal system are decided. He claims that for every developed legal system there is an ‘ultimate rule of recognition’, whose validity cannot be questioned and whose existence depends solely on the fact that it is accepted by officials ‘from the point of view’. Hart says in order to identify the rule of recognition in a particular legal system, one has to see how the officials, judges, legislators and other public functionaries work and behave. He says in the United Kingdom the rule of recognition is ‘What the Queen in Parliament enacts is law’. Where there is a written Constitution, the provisions of the Constitution are the rules of recognition. Validity of the rule of recognition cannot be questioned. It is neither be valid nor invalid but is simply accepted as appropriate for use in this way.