"HLA Hart's The Concept of Law, published in 1961, presented a new theory of legal positivism.

Critically assess Hart's contribution.

"HLA Hart's The Concept of Law, published in 1961, presented a new theory of legal positivism. Critically assess Hart's contribution."

Word Count (excluding Abstract, cover page and bibliography: 3623

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"HLA Hart's The Concept of Law, published in 1961, presented a new theory of legal positivism. Critically assess Hart's contribution.

Abstract 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.1 Harts 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.2 The Concept of Law is a jurisprudential heavyweight; perhaps the most important document in analytical jurisprudence since John Austins The Province of Jurisprudence Determined.3 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 Harts 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
1

Raymond Wacks. Philosophy of law: a very short introduction (Oxford University Press, 2006) p.72 Raymond Wacks. Understanding Jurisprudence (Oxford University Press, 2005)p.72 3 R Sartorius More Essays in Legal Philosophy: General Assessments of Legal Philosophy p. 131
2

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"HLA Hart's The Concept of Law, published in 1961, presented a new theory of legal positivism. Critically assess Hart's contribution. ourselves.4 The command theory of law is rejected by Hart: after all, is an order by a gunman not a command backed by a sanction?5 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.6 Rather, many laws empower citizens to create and enforce contracts.7 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.8 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).9 However, these rules are deficient in that are only effective in primitive societies, they are static/unchanging and they are vague.10 Hart picked up on these, noting the need for secondary rules; effectively ways of modifying and altering deficient primary rules. 11 These became necessary as

4 5

Mark Murphy. Philosophy of Law: The Fundamentals (Blackwell, 2007)p.26 Wacks Understanding Jurisprudence p.74 6 HLA Hart. The Concept of Law (Oxford University Press, 1961) p.28 7 David Ingram Law: Key Concepts in Philosophy (Continuum, 2006) p.30 8 R Summers, Professor H.L.A Harts Concept of Law Duke Law (Journal Vol. 1963, No. 4 p.629, Autumn, 1963) p.633 9 George Pavlakos.Law as Recognition: H.L.A Hart and Analytical Positivism in Tim Murphy (Ed.) Western Jurisprudence (Round Hall, 2004 pp.240-241 10 Hart, The Concept of Law pp. 89-91 11 N.E Simmonds. Central Issues in Jurisprudence: Justice, Law and Rights (Sweet and Maxwell, 2002) p.136

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"HLA Hart's The Concept of Law, published in 1961, presented a new theory of legal positivism. Critically assess Hart's contribution. 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.12 Unlike primary rules, secondary rules confer power rather than imposing duties with the key exception being the Rule of Recognition.13 To Hart, the Rule of Recognition is paramount in identifying a law. That is, a metarule that is the fundamental rule for conclusive identification of the primary rules of obligation.14 The Rule of Recognition varies between different legal systems and in a developed legal system, can become fairly complex.15 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.16 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.17 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.18 By taking an empirical approach, we can deduce a legal systems Rule of Recognition.19 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.20That something is a Rule

12 13

Pavlakos Western Jurisprudence p.241 Wacks Understanding Jurisprudence p.75 14 Hart, The Concept of Law p.92 15 Ibid 16 Simmonds Central Issues in Jurisprudence p.137 17 Wacks Understanding Jurisprudence p.76 18 Hart, The Concept of Law p.98 19 Simmonds Central Issues in Jurisprudence p.138 20 Wacks Understanding Jurisprudence p.80

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"HLA Hart's The Concept of Law, published in 1961, presented a new theory of legal positivism. Critically assess Hart's contribution. 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.21 It is therefore through The Concept of Law that Hart made an especially seminal contribution to modern positivism. Harts criticism of Austins 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.22 Austin was a veritable giant in legal positivism and to so for Hart to so deftly point out the Command Theorys inherent problems is no mean feat. Likewise, The Concept of Law is noteworthy for dividing rules between primary and secondary rules.23 This distinction is important given that secondary rules effectively act as rules for primary rules with the rule of recognition being of special note.24 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.25 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.26

21 22

Murphy. Philosophy of Law p.30 Ingram Law: Key Concepts in Philosophy p.30 23 R Summers Essays in Legal Theory (Springer, 2000) p. 4 24 Pavlakos. Western Jurisprudence p.241 25 Murphy Philosophy of Law p.29 26 Hart Concept of Law p.79

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"HLA Hart's The Concept of Law, published in 1961, presented a new theory of legal positivism. Critically assess Hart's contribution. 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)27 to limiting personal rights under the Irish Constitution.28 While Hart does not deny the importance of morality, he feels that laws must be enacted by separating the laws morality from an accurate analysis.29 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.30 Hart can best be described as a moral relativist.31 While he fully accepts that law is heavily influenced by morality, Hart rejects that law must conform to morality.32 Given that law is a human institution, law is highly fallible: as evil people can make laws, inherently unjust laws can be passed.33 Hart is unquestionably a positivist, holding that key positivist belief in the separation of law and morality.34 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.35 However, it would be impossible to overly separate law and morality given the law follows morality.36

27 28

R v Brown [1994] 1 AC 21 Bunreacht na hireann, Article 40.6.1 http://www.taoiseach.gov.ie/attached_files/Pdf%20files/Constitution%20of%20Ireland.pdf Accessed 15h January 2012 29 N.E Simmonds. Central Issues in Jurisprudence p.129 30 Ibid 31 George Pavlakos Western Jurisprudence p.239 32 Hart. The Concept of Law p.181 33 Murphy Philosophy of Law p.31 34 Wacks. Understanding Jurisprudence p.72 35 Hart, Concept of Law p.195 36 Hart, Concept of Law p.196

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"HLA Hart's The Concept of Law, published in 1961, presented a new theory of legal positivism. Critically assess Hart's contribution. Hart differed markedly from previous positivists in that he accepts the concept of indisputable truth in natural law.37 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.38 Morality also has a crucial role to play in laws given that it forms the core of legal systems within small communities (primary rules). 39 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 civilisation. 40 Ultimately, The law of every modern state shows [] the influence of both the accepted social morality and wider moral ideals.41 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.42 Hart acknowledges that no positivist can deny the connection between law and morals.43 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.

37 38

Hart. The Concept of Law p.146 Hart. The Concept of Law p.16 39 Pavlakos Western Jurisprudence p.240 40 Simmonds Central Issues in Jurisprudence p160 41 Hart, Concept of Law p.199 42 Ibid 43 Hart, Concept of Law p.200

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"HLA Hart's The Concept of Law, published in 1961, presented a new theory of legal positivism. Critically assess Hart's contribution. Rules, both Internal and External In addition to rejecting Austins 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.44 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.45 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.46 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.47 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.48 It is here that Hart differs from Austin who focussed on the

44 45

Wacks. Understanding Jurisprudence p.76 Hart The Concept of Law p.54 46 Hart The Concept of Law p.54 47 Hart The Concept of Law p.55 48 Ibid

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"HLA Hart's The Concept of Law, published in 1961, presented a new theory of legal positivism. Critically assess Hart's contribution. external aspects of law: Hart notes the importance of the internal aspects of law.49 Austins 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.50

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.51 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 systems concepts of validity must also be generally obeyed.52 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.53 All that is required is obedience.

49 50

Simmonds Central Issues in Jurisprudence p.135 Wacks Understanding Jurisprudence p.76 51 Hart The Concept of Law p.113 52 Ibid 53 Roger Cotterrell The Politics of Jurisprudence (LexisNexis, 2003) p.95

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"HLA Hart's The Concept of Law, published in 1961, presented a new theory of legal positivism. Critically assess Hart's contribution. 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. 54 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. 55 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.56 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.57 For Hart, we cannot properly understand law when it is disconnected from the context where the terms emerge and develop.58 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 laws interpretation.59 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.60 After all, analytical jurisprudence is rooted in empiricism whereby concepts arise from observable reality. 61

54 55

Wacks Understanding Jurisprudence p.82 Simmonds Central Issues in Jurisprudence p.139 56 Pavlakos. Western Jurisprudence p.234 57 Cotterrell The Politics of Jurisprudence p.83 58 Wacks Understanding Jurisprudence p.74 59 Hart. The Concept of Law p.123 60 Pavlakos. Western Jurisprudence p.235 61 Cotterrell The Politics of Jurisprudence p.84

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"HLA Hart's The Concept of Law, published in 1961, presented a new theory of legal positivism. Critically assess Hart's contribution. Criticisms and controversy Harts theory on law is fundamentally based around the Rule of Recognition so it is here that he is most criticised and discussed.62 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.63 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.64 Such principles and policies (as Dworkin labels them) are justified on moral or ethical grounds but as they are absent from Harts legal theory, they show a lacuna in his reasoning.65 Such principles and policies are frequently referenced by judges without judges there being any obvious account for how they found their way into law.66 An example of this being the case of Riggs v Palmer67 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.68 That these legal obligations can exist independently of the Rule of Recognition puts doubts on Harts legal theory. 69 However, Hart fought back in the second edition of The Concept of Law, acknowledging how influential Dworkins criticisms were.70 Hart concedes the ambiguity of some of his work and sought to address this, accepting that there can
62 63

Pavlakos Western Jurisprudence p.247 Ibid 64 Wacks Understanding Jurisprudence p.121 65 Pavlakos Western Jurisprudence p.247 66 Murphy Philosophy of Law p.29 67 Riggs v Palmer 22 N.E. 188 (N.Y. 1889) 68 Simmonds Central Issues in Jurisprudence p.196 69 Pavlakos Western Jurisprudence p.247 70 ND Hart The Concept of Law (2 Ed) p.239

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"HLA Hart's The Concept of Law, published in 1961, presented a new theory of legal positivism. Critically assess Hart's contribution. 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.72 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.73 Legal practice needs to be directly answerable to primary obligations existing independently of the secondary Rule of Recognition74. 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. 75 The Concept of Law offers a multitude of insights into the nature of law while providing an

71 72

Hart The Concept of Law (2 Ed) p.243 ND Hart The Concept of Law (2 Ed) p.250 73 Pavlakos Western Jurisprudence p.248 74 Ibid 75 Summers, Duke Law Journal p.629, / Wacks Understanding Jurisprudence p.72/ Murphy, Philosophy of Law p.26

ND

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"HLA Hart's The Concept of Law, published in 1961, presented a new theory of legal positivism. Critically assess Hart's contribution. excellent framework of legal thought, encompassing everything from the tricky natural law/positivism debate to the oft-ignored role of language in legal terms.76 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.77 Hart acknowledges the importance of morality, especially the core of indisputable truth and rejects Austins concept of law as fundamentally a series of coercive orders.78 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.79 However, Harts 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.80 Hart differed notably from previous positivists as The Concept of Law rejects the idea that legal authority is shown in habitual obedience.81

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
76 77

Simmonds Central Issues in Jurisprudence ND Hart The Concept of Law (2 Ed) p.i 78 Hart The Concept of Law p.79 79 Ingram Law: Key Concepts in Philosophy pp.29-30 80 R Summers. Duke Law Journal p.632 81 Wacks Understanding Jurisprudence p.78

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"HLA Hart's The Concept of Law, published in 1961, presented a new theory of legal positivism. Critically assess Hart's contribution. regular habits.82 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.83 Indeed, Hart views Austins failure to examine the concept of rules as the fundamental inadequacy of Austinian jurisprudence.84 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.85 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.86 So great was Razs respect for The Concept of Law, that he edited a second edition of the book, including additional sections detailing Harts response to various critics such as Dworkin, whereas Hart has been defended from Dworkins criticisms from a variety of jurists.87 It is therefore fair to say that The Concept of Law not only presented a new theory of legal positivism but one which influenced and energised legal positivists for future generations.

82 83

Simmonds Central Issues in Jurisprudence p.135 Ibid 84 Cotterrell The Politics of Jurisprudence p.88 85 Murphy Philosophy of Law p.34 86 Wacks Understanding Jurisprudence p.72 87 Wacks Understanding Jurisprudence p.135

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"HLA Hart's The Concept of Law, published in 1961, presented a new theory of legal positivism. Critically assess Hart's contribution. 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 Harts jurisprudence. However, probably the most influential aspect of Harts 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. Harts 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.

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"HLA Hart's The Concept of Law, published in 1961, presented a new theory of legal positivism. Critically assess Hart's contribution.

Bibliography
Bunreacht na hireann, Article 40.6.1 http://www.taoiseach.gov.ie/attached_files/Pdf%20files/Constitution%20of%20Irelan d.pdf Accessed 15h January 2012

Roger Cotterrell The Politics of Jurisprudence (LexisNexis, 2003) 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) George Pavlakos.Law as Recognition: H.L.A Hart and Analytical Positivism in Tim Murphy (Ed.) Western Jurisprudence (Round Hall, 2004

R v Brown [1994] 1 AC 21 Rolf Sartorius. Harts Concept of Law in Robert Summers (Ed.) More Essays in Legal Philosophy: General Assessments of Legal Philosophy (University of California Press, 1971)

N.E Simmonds. Central Issues in Jurisprudence: Justice, Law and Rights (Sweet and Maxwell, 2002)

R Summers Essays in Legal Theory (Springer, 2000) R Summers, Professor H.L.A Harts Concept of Law Duke Law Journal Vol. 1963, No. 4 p.629, Autumn, 1963

Raymond Wacks. Philosophy of law: a very short introduction (Oxford University Press, 2006) Raymond Wacks. Understanding Jurisprudence (Oxford University Press, 2005) Riggs v Palmer 22 N.E. 188 (N.Y. 1889)

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