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Jose Luis General

Chapter III
THE VARIETY OF LAWS

In this chapter, Hart expresses the objections against the model of orders back by threats as the
underlying principle in determining what the whole concept of law is. He principally mentions three
things. Firstly, not all laws order people to do things such as when people make contracts or when
judges exercise their powers. Secondly, not all laws are enacted nor are they all expressed by a single
entity. And lastly, not all laws are ordered not only to others but to everyone including the ones who
made them.
These objections fall under three groupswhich have the primary concern in thecontent of
laws, mode of origin, and the laws range of application. On its face, one or more of these groups may
have some relation to the model of orders back by threats.
I. The Content of Laws
The model of orders backed by threats is much related to the most common branches of the
law. The most obvious is criminal law in which there are rules, which have to be obeyed; otherwise, a
punishment is to be imposed. Similarly, the law of torts imposes compensation to the ones who have
incurred damages as a result of the acts of another.
However, not all branches of law are analogous to the model of orders backed by threats. The
most apparent is the relation of law to private affairs, specifically, between parties. Various kinds of
contracts are made between parties without the imposition of obligations, duties and most importantly,
sanctions. For these contracts to be valid, the parties only need to comply with the rules set by the law
as regards to form, and manner. When every requirement is met, then power is conferred to these
parties. However, when one or more of the requirements are not met, then the contract does not have
any effect. Although it may be declared null or unenforceable, there is no obligation or duty that is
breached and more importantly, there is no sanction to be imposed.
In the conduct of public officials, Hart mentioned the judicial and legislative branches. In the
judiciary, the judge is given powers (e.g. power to try), which incidentally provide the conditions and
limits in order for the judge s decision to be valid. Although he may make a wrong decision based on his
interpretation of the laws or he may exceed the conditions imposed on him such as the limitation on
jurisdiction, the judges decision or jurisdiction is valid unless a higher court quashes or reverses. When
there is quashing or reversal, it does not mean that the judge committed an offense but it only proves
the lack of complying with the rules similar to the defect in manner or form of the contracts made by
private individuals.
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Proceeding to the legislative branch, a legislator has a similar case to that of a judge, only that
the formers case is more complex because of the mere fact that more formalities are involved.
However, there may be times when participation in the legislation process may constitute a criminal
offense such as when an unauthorized person participates in legislative proceedings.
Hart says that there is a radical difference between rules conferring and defining the manner of
legislative powers and the rules of criminal law. Hence, it should be noted that this criminal aspect in
an unauthorized participation in the legislative proceedings should be seen as an independent act by the
offender who did not acquire a conferred power with respect to the participation in the proceedings.
All these varieties of law being said, the problem of reducing these into one single type remains
a problem. To try to accomplish this, Hart presents arguments with respect to the differences between
varieties of law. Principally, these arguments stress that the differences are superficial and that the
model of orders backed by threats is ultimately the answer for the thorough analysis of the relation
between the rules conferring powers and the rules of criminal law. Indeed, there are major similarities
between these two groups of rules. For example, rules of criminal law impose duties while those that
confer power are recipes for creating duties.
Nullity as a sanction
One of the arguments presented is that when contracts are deemed invalid or unenforceable, its
nullity or unenforceability is equivalent to the sanction imposed to someone when he committed a
crime. It is admitted, however, that the nullity causes only a minor inconvenience. As a result, the
declaration of nullity does not present to the public any evil in the person.
Moreover, the possibility of declaring the contract as null does not discourage the person to
abstain from doing something, unlike the high possibility of being punished as a result of doing a crime.
If the rules on making a valid contract are not complied with and as a result a certain contract is
declared null, the person is only withheld from executing the supposed terms found in the contract until
legal recognition is granted to the execution of the contract.
As a summary, this argument entails a widening of the term sanction in such a way that the
declaration of nullity of a contract is deemed to be an evil to be avoided.
Power conferring rules as fragments of law
The next argument presents a different view. It is claimed that the rules on contracts do not
have the nature of coercive orders. But if they contain some coercive orders, these are just incomplete
fragments. Thus, these rules on contracts are not genuine laws.
The extreme form of this argument presents that even criminal laws are not genuine laws. This
is based on the theory of Kelsen: Law is the primary norm which stipulates the sanction.
To understand what Kelsen means, Hart gives an example of a crime, which is murder. He states
that the law does not prohibit murder. The law speaks only of directing agents of the government to
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provide a sanction to every person who commits murder. With this, he coined the term if-clause
which is a term that describes the duty of government officials to impose a sanction if a certain person
commits a crime. In some sense, the law is not directed to the general public but to the government
officials themselves, which the law imposes on them the duty to apply the sanctions.
This if-clause also applies to every branch of law including the power-conferring rules on public
and private individuals.
This argument establishes a commonality in all laws in which it states that every piece law does
not need to provide a sanction for its breach. The only requirement is that every genuine law sould
direct government officials to prescribe a sanction.
However, this argument has its defect if it is shown that laws may be established even without
providing sanctions.
Distortion as the price of uniformity
The last argument claims uniformity in all the laws to the effect that it reduces all laws at too
high a price: that of distorting the different social functions which different types of legal rule perform.
In this section, Hart starts with an idea that society may be controlled in many different ways.
One of which is what criminal law does in which it provides standards that provide as a guidance to all
members of the society who are expected to know and understand these rules without the extrinsic
help of government officials. The people apply the rules to themselves and they are discouraged to
breach the rules in threat of a sanction that may be imposed.
Criminal law is distinguished from other social controls such as laws that impose high taxes on
vices. When criminal law is breached, a punishment is imposed. However, when tax is paid on certain
vices, it is not in itself a punishment but only an indirect discouragement from the government.
Both forms of the theorythe extreme and the less extremeis open to the criticism that both
focuses only on laws that impose duties. To understand the rules conferring private powers, it is
necessary that this must be seen from the perspective of the private persons themselves. For the private
person to be more competent in his understanding of the law, he should not just be merely as a duty-
bearer, but at the same time, a power-conferrer.
These power-conferring rules present a special view as compared to rules which impose duties
as the former is valued differently in social life. With this, Hart ends this section stating that
represent[ing the power-conferring] rules as mere aspects or fragments of the rules of duty is, even
more than in the private sphere to obscure the distinctive characteristics of law and of the activities
possible within its framework.
II. The Range of Application
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In this chapter, Hart starts with a differentiation between an absolute monarch and a legislator.
According to him, the absolute monarch has legislative powers but what he declares as law may not
apply to him. On the other hand, a legislator who also has legislative powers may create laws but he
cannot exempt himself with regard to its application. With this he establishes an essential difference
between just ordering others to do things and legislating for others including himself, a self-binding
legislation.
With this, Hart mentions the two personalities a legislator has. He acts in his official capacity as a
legislator and he also acts in his personal capacity whenever hes not doing his official functions. When
hes not doing his official functions, the laws of the land, including the ones that he approved, apply to
him.
Since coercive orders cannot apply to legislators, Hart resorts to a new model, which is making
promises. He applies this new model to the legislator and then he points out the similarities of
legislating and making promises. When one legislates, the words are said and written by following a
certain set of rules indicated in the law. Then, this creates obligations to everyone including the ones
who made it.
III. Modes of Origin
Having discussed the varieties of law, Hart states a premise: The enactment of a law, like the
giving of an order, is a deliberate datable act. However, this does not seem to be true to all which we
consider as a law. The most apparent conflict to this premise is that custom, which we regard as law on
its face, is not a datable act.
But this conflict may be fixed because there is confusion about custom whether is indeed law or
not. Truly, saying good morning to ones family and co-workers is a custom but it does not have an
effect of law when this custom is not observed. This goes to show that there are customs that have been
generally observed and there are customs that have been recognized as law by a particular legal system.
Customs are not very important sources of law. A recognized custom is usually a subordinate
law. In order for custom to have an effect as law, the courts use the test of reasonableness. When a
custom passes the test of reasonableness, it is granted legal recognition and hence, it has the full effect
of a typical law.
In order to understand the legal recognition granted to customs, Hart gives an example of a
sovereign having subordinate agents. These agents may enact laws or give orders. As long as the
sovereign allows the orders made by these agents, they are deemed to be orders made indirectly by the
sovereign himself, unless the latter interferes. Hart calls this a tacit order.
Applying this tacit ordering to customs, Hart says that customs are merely customs and not
law until the courts apply them. By giving orders based on these applied customs, the judge or the
whole legal system itself grants legal recognition to these customs.
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The legal status of custom has two criticisms. First, customs are not necessarily to be deemed as
having no status of law until they are legally recognized. Second, customs are law because of the simple
fact that these customs are deemed to be tacit orders of the sovereign.
To answer the first criticism, there is a dogma that nothing can be considered as law unless it is
ordered by someone. A statute is an order in its own right, while a custom is not.
The second criticism fails to grasp the idea that although customs may be sources of law, not all
of these customs are tacit expressions of the legislators wishes. These customs may just be tolerated. It
is also possible that these customs are outside the attention of the legislators.
Ending this chapter, Hart presents questions: What does the legal recognition of custom
consist? To what does a customary rule owe its legal statute? How can it be law before the court applies
it? These questions are to be answered in the next chapter which discusses what a sovereign is.