Jia Sajjal

H L A Hart was born in 1907, and graduated from New College, Oxford, where he read classics, ancient
history and philosophy.

Hart suffered from what could be categorised as a ‘semantic sting’; the meaning of words and their
meticulous usage can be seen as a focal point in his criticism of other jurists. Hart’s book ‘The Concept
of Law’ claims to be an exercise in both analytical jurisprudence (analyzing everyday language to give an
analytical account of how the law has developed), and descriptive sociology (looking at the nature of
rule bound human behavior).

Hart sets out to produce a descriptive, positivist legal theory, and the book has elements of what
Cotterrell has labeled ‘conceptualism’.

The early chapters (2-4) of Hart’s book progressively take apart Austin’s imperative theory of law. They
identify inadequacies both with the account of sovereignty and with the notion of laws as orders backed
by threats. The method, in effect, is to construct his own theory out of the ashes of Austin’s.

CHAPTER 2; Laws, Commands and Orders:

(i) Varieties of Imperatives: Hart begins this chapter by stating at the outset that he is going to
criticize a position which is, in substance, the same as Austin’s doctrine but probably
diverges from it at certain points. He considers linguistic differences between orders and
laws and this introduces the reader to what is often called ‘the linguistic method’ or the
‘method of linguistic philosophy’. Famously, Hart in this chapter draws a linguistic distinction
between our standard use of the term ‘being obliged’ (that is being coerced) to do
something and ‘being under an obligation’ (that is being under a duty) to do something,
saying that in the former case, no obligation was implied.

Hart starts with his definition of the ‘imperative mood’ with the word ‘o rder’ and gives
the gunman example, a hypothetical situation, in which a gunman demands a bank clerk to
hand over cash at gunpoint. By the use of this scenario, Hart distinguishes between different
imperatives, saying that the gunman is certainly not ‘pleading’ or ‘requesting’ the bank clerk
to hand over the money he is ‘ordering’ him to do so. He then takes this position one step
further by saying that although one can assume that the gunman ordered the clerk to hand
over the money, it would be difficult to regard this as the gunman ‘giving an order’ [Note:
makes a distinction between an order and giving an order] because the later suggests some
right or authority which is not present in the given situation. The bank clerk is forced to
hand over the money because the gunman has a gun pointing to his face and not because
he is the clerk’s superior or boss. The gunman can however, ‘give an order’ to his henchman
guarding the door. In summary, a legal obligation or a duty is different from being obliged or
forced to do something. When the gunman orders the clerk to hand over the money, it will
be misleading to say that he is ‘giving an order’ to the clerk.
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Next Hart draws a distinction between commands and orders backed by threats. A
distinction he feels has been largely ignored by Austin.

Commands Orders Backed by Threats

The word command carries a strong An OBT is an OBT. It requires compliance not
implication that there is a relatively stable because of respect but solely due to the fear of
hierarchal society of men in which the threat of punishment or sanctions.
commander occupies a position of
preeminence.
A command means to exercise authority over
men, NOT power to inflict harm, and though it
may be combines with threats of harm in case
of non-compliance, a command is primarily an
appeal not to fear but to respect authority.

Hart sums up by saying that the idea of a command and its strong connection and respect
for authority is much closer to law than the gunman’s order backed by threats- which Austin
misleadingly calls a command.

(ii) Law as Coercive Orders:

(a) Generality: Hart feels that no society could support the number of officials necessary to
secure that every member of the society was officially and separately informed of every
act he was required to do. Hence, law possesses GENERALITY and the standard form
even of a criminal statute (which has the closest resemblance with an order backed by
threat) is general in two ways; (i) It indicates a general type of conduct. (ii) Applies to a
general class of persons who are expected to comply with it.
Official individuated face-to-face directions here have a secondary place: if the primary
general directions are not obeyed by an individual, officials may draw his attention to
them and demand compliance, as a tax inspector does, or the disobedience may be
officially recorded and the threatened punishment imposed by a court.

Therefore, generality is the first feature we should add to the model of the gunman if it
is to reproduce for us characteristics of law.

Secondly, Hart points out that Austin has spoken of laws being ‘addressed’ to classes of
persons. This he feels is misleading in suggesting a parallel to the face-to face situation
which really does not exist and is not intended by those who use this expression. Laws
are complete when they are made, it is desirable that they are brought to the notice of
the general public, but they are in a finished form whether or not they are conveyed to
the public. The order of the gunman would have no force if the clerk was unafraid of
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him or if it were said in an empty room. If one uses the word ‘addressed’ in law, we may
fail to distinguish an important difference between the making of a law and a face-to-
face order and confuse the two distinct questions: ‘to whom does the law apply?’ and
‘to who is it published’

(b) Persistent characteristic of law: Besides the introduction of the feature of generality to
the gunman model, a more fundamental change must be made. It is true there is a
sense in which the gunman has an ascendancy or superiority over the bank clerk; it lies
in his temporary ability to make a threat, which might well be sufficient to make the
bank clerk do the particular thing he is told to do. There is no other form of relationship
of superiority and inferiority between the two men except this short-lived coercive one.
The gunman does not issue to the bank clerk ‘standing orders’ to be followed time after
time by classes of persons. Yet laws pre-eminently have this ‘standing’ or persistent
characteristic and it is this very characteristic that we must endeavor to reproduce in
the given gunman model.

(c) General Habit of obedience: The question how many people must obey how many such
general orders, and for how long, if there is to be law, no more admits a definitive
answer than the question how few hairs must a man have to be bald. Mere temporary
ascendancy of one person over another is naturally thought of as the polar opposite of
law, with its relatively enduring and settled character. It remains to be seen whether
this simple, though admittedly vague, notion of general habitual obedience to general
orders backed by threats is really enough to reproduce the settled character and
continuity that legal systems posses. Moreover, he accepts that penal statues bear close
resemblance to OBT’s but what about other laws, such as those governing contracts,
wills etc (power conferring)? How are they to fit into the OBT model?

Moreover, Hart says that the law has features of supremacy and independence within
its territory that cannot be reproduced in this simple model. Within a country like
Pakistan, for example, there are various bodies such as local authorities or officials that
give out orders in return of which they receive habitual obedience, for example;
WAPDA. However, it is noteworthy here that this body is subordinate to the Head of the
State and thus, may be described as an agent of the Government of Pakistan. The
Government is also independent as it is arguably not in the habit of obedience to the
government of any other state.
Hart sums up by saying that the sovereign, or the body issuing general orders backed by
threats(s), must be INTERNALLY supreme and EXTERNALLY independent. (Pointing to his
external and internal point of view)
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Chapter 3; The Variety of Laws:

In this chapter, Hart considers what law would be like if we assumed that law really consisted of orders
directed to us by the legal sovereign. He makes three main criticisms:

(i) The content of laws: The model of orders is much closer to the idea that all laws impose
duties as though all laws were really of the sort that we find most common in criminal law;
(as containing orders not to perform certain acts (crimes), the failure of which imposes a
sanction) and tort.
That said it is pertinent to note here that criminal law and the law of torts are not the only
category of laws. Hart states, and rightly so, that law extends to the laws of contracts, and
wills etc, which do not have mandatory application to everyone and do not impose duties or
obligations. Instead they provide individuals with facilities for realizing their wishes, by
conferring legal powers upon them to create certain conditions within the coercive
framework of law.

What needs to be borne in mind is the fact that Austin does deal with the issue of public and
private power conferring rules and sees nullity of transactions as a sanction because it leads
to the loss of an expected benefit. Hart however states that this would be missing the point,
since the whole point of power conferring rules, as their very name suggests is to confer
power or to provide the individual with facilities to make contracts and not impose a
sanction. To further elaborate this claim he gives the example of Section 9 of the Wills Act. If
there is non-compliance with the number of witnesses, the will shall not be a valid
document. It would be null without any legal force or effect- the aggrieved party will not
have suffered any ACTUALL detriment/ sanction.

Rules conferring powers fall into distinguishable kinds themselves. For example; Rules
regarding capacity, manner and form, maximum and minimum duration for contracts etc.

Moreover, there are rules which confer powers of an official nature. An example of this may
be judicial rules which may range from defining the subject matter and content of a judge’s
jurisdiction to his power to try certain types of cases.
If a judge listens to a case with an issue that exceeds the scope his jurisdiction, the decision
may be voidable. There is no sanction attached to this as per Hart [However, according to
Austin’s definition of sanctions, it may be argued that the subsequent criticism as a result of
the judge transgressing his jurisdiction would be a sanction as a sanction is the smallest
chance of incurring the smallest possible evil].
Hart feels that although there are psychological associations involved with a sanction, nullity
may not be an ‘evil’ for a breaching party as it cannot be assimilated as an inducement to
abstain from activities that the rule forbids.
He feels that talking about nullity of a contract as a sanction takes the focus away from the
contract itself. This, he compares to the rules of football and says that if the focus was on
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scoring goals and everything else was neglected than it wouldn’t be much of a game. Nullity
merely withholds legal recognition; it does not finish the contract itself.

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 is the
recipe for creating duties, whereas, criminal law imposes these duties.

Hart then observes the theory propounded by Hans Kelsen which narrows the meaning of
the word ‘law’. According to Kelsen, ‘Law is the primary norm that stipulates the sanction’.
In other words, this means that law is a mere direction to officials to apply certain sanctions
IF a breach has occurred. Hence, as per Kelsen’s theory; If X is committed apply Y; Where X =
Crime and Y = Sanction.
Therefore, the general form of this extreme theory of law appears to be that instead of law
being a series of orders backed by threats of sanctions, it is now directions to officials to
apply sanctions when a breach occurs. But then what about the perspective of the private
individual when he is conferred with a power; i.e. to create a contract?
Kelsen would reply that if the individual breaches the term(s) of the contract, the order will
be administered under law to the official to apply the sanction- Under Section 73 of the
Contract Act. OR. There could also be directions to private individuals themselves to for
example A to not enter into a contract with B, if B is under aged or has not given
consideration. The sanction would then be the non-performance or the extinguishing of the
contract itself.

It can be said that both Austin’s and Kelsen’s theory revolve around the importance and
vitality of sanctions in a legal system. If it can be shown that law without sanctions is
perfectly conceivable, both theories will fail.

Hart is of the opinion that the focus on sanctions conceals the ‘self-applicatory’ nature of
laws. He feels that sanctions are ancillary/ supplementary and only come into play when the
rule is broken or the purpose of the system is distorted. The idea that criminal law applies to
officials and not citizens clouds the distinction and obscures the character of law.

Although Kelsen’s theory is appealing because it identifies a course of conduct, wherein,

officials must apply sanctions towards ordinary citizens and even to other officials. Hart is
quick to point out why law should not portray the ordinary man’s perspective? Why should
it be limited to the ‘bad man’s perspective’? Why should the law not set a standard of
conduct for the behavior of ordinary people instead of waiting for the sanction to be
applied? He feels that it would be limiting and depressing if the principle function of law was
restricted to private litigations or prosecutions as a means of social control and ignore the
diverse ways in which law is used to control, guide and to plan life out of court.
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Hart sums up his argument by giving an example with reference to the rules of cricket. He
says that although one can look at a game of cricket from the official’s perspective (the
umpire’s signals of a six, four or lbw), it would be a big distortion to exclude the player’s
perspective.

(ii) The Range of Application: The second point of criticism that Hart puts forward is that the
idea of ordering someone to do something, ignores an important feature of the law- that it
can just as easily and readily apply to those who make the law; and so the model of orders
as a ‘top-down’ one, cannot adequately account for it.
Moreover, Hart points out that it is better to treat the situation of power conferring rules as
promises rather than coercive orders because a promise creates an obligation for the
promisor. This view may be applicable to the making of contracts, wills, etc buts its
application to criminal law and the law of tort is questionable. It appears that under this the
promisor, will covenant with the state that he shall not commit a crime against his fellow
men, but this entails a utopian scenario where the use of sanctions are probably not
needed. Its applicability in real life is unlikely.

(iii) The Mode of Origin: The model of laws as orders implies that there is a time and place in
which law was created, when the ‘order’ was made or given. Hart however, points out that
with law it is not necessary in every case to be able to locate the time and place of the
coming into force of the order. He points out to the legal status of a local custom. Such
customs, if reasonable, and existing from ‘time immemorial’, are legally valid and
enforceable, yet it is of the essence of customs that they arise over time and not as a result
of a particular sovereign order. 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; they have internalized
it.

* To conclude Hart believes that to look for uniformity in law is to miss the point. A distinguishing
characteristic of law lies in its fusion of different types of rules.
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Chapter 4; Sovereign and Subject: Austin has stressed that whenever there is law, there is the concept
of an illimitable sovereign who is as essential to society as the backbone of a man. The sovereign is
characterized by the habit of obedience that is owed to him by the masses.

Hart poses the question of whether this ‘habitual obedience’ can explain; (i) The continuity of law and
(ii) Persistence of laws long after the sovereign and those who rendered him habitual obedience have
died.

Moreover, it is important to examine whether the legally illimitable status of the supreme law giver is
necessary for the existence of law, and whether either the presence or the absence on limits on the
sovereign can be understood in terms of the habit of obedience.

(i) Habit of obedience and the continuity of law: the earliest premise of a definition for
obedience is respect for authority and not merely compliance with orders backed by
threats. In order to explain this concept Hart once again uses the aid of a hypothetical
situation where he identifies an absolute Monarch- Rex, who rules a community for a very
long period, and the people of which, obey him.
Hart begs the question that if Rex requires obedience backed by the threat of sanctions,
how can the obedience accorded to Rex then have a ‘habit’ imbued in it? [This question
bears similar reasoning to the distinction he draws in Chapter 2 between commands and
OBTs].
Moreover, if all that was required to make Rex the sovereign was habitual obedience, what
happens when Rex dies and Rex II succeeds his father to the throne? The mere fact that
there was a general habit of obedience to Rex I in his lifetime is no guarantee that Rex II will
be habitually obeyed as well. Therefore, there is nothing to make Rex II the king until people
of the community develop a habit to obey him. Hence, until people start obeying Rex II the
society will remain in a state of chaos.
Hart states, that the way out of this problem is to secure the obedience of people through
the system of rules which bridge the transaction from one law giver to another. In other
words Rex will regulate in advance that the people must obey Rex II after his death.
Meaning, Rex II has a title to succeed his father/ he will have the right to make law on his
father’s death and when his first orders are issued they shall become law BEFORE a habit of
obedience is formed between him and his subjects (because that is the established RULE).

When explaining the continuity of law-making power through a changing succession of

individual legislators, it is natural to use expressions like the ‘rule of succession’, ‘title’, ‘right
to succeed’ and the ‘right to make law’. It is obvious however; that with these expressions
we have introduced a new set of elements [rules] which cannot be explained in terms of
habit of obedience.
In fact, the idea of habitual obedience fails in two different though related ways where one
legislator succeeds another. Firstly, mere habits of obedience to orders given by one
legislator cannot confer on the new legislator any right to succeed the old and give orders in
his place. And secondly, habitual obedience to the old law giver cannot by itself render
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probable, that the new legislator’s orders will be obeyed. If both the aforementioned right
and presumption are present there must have been acceptance of the rule which allows the
new legislator to succeed the old.

The complex social practice he then talks about is rule following. And in order to understand
what rule following is he differentiates between a habit and a rule. [He points out only one
similarity and that is that both a habit and a rule are repeated] Hart states that there are
three salient differences:
(a) A habit is behavior that converges. However, deviance will not lead to criticism from
society. Whereas when talking about a rule, deviations are met with criticism and there
will be pressure from society to conform.
(b) If a standard is not met, there will be criticism and demand for compliance, which will
be considered legitimate in cases of rules, this does not happen for habits.
(c) The third distinction is one that has more often than not been disregarded or
misinterpreted in jurisprudence. This relates to the internal aspect of rule following.
Under habitual obedience this internal aspect is lost as people confer to laws only for
the external element of law. Hart feels that for a social rule to exist people must look at
it internally and internalize its acceptance. To explain this point further he gives the
example of the game of chess. Moving the queen two spaces ahead would mean to
someone who does not understand the rules of the game as a mere habit- because this
is the external point of view. Those who are aware of the game and its rules have a
‘critical reflective attitude’ that manifests.- an internal point of view towards rule
following. When these rules will not be followed, it will be met with criticism from those
holding an internal point of view.

What Hart is trying to say is that people can accept rules without compulsion. What is
necessary is that there should be a critical reflective attitude to certain patterns of
behavior and this should display itself in criticism (including self criticism), demands for
conformity and an acknowledgment that the demands are legitimate. [Put in your own
analysis. Why do you think that the internal aspect is not enough for conformity and
Austin’s stress upon sanctions is legitimate? This is primarily due to human nature.
Humans do not like restrictions and seldom adhere to prohibitions if they go against
their personal interests. Sanctions are crucial to compliance with laws. Moreover, Hart
states here that criticism can me a motivating force, why then does he in chapter three
rule out the possibility of criticism as a sanction as purported by Austin?]
Hart goes on to say that acceptance of a rule by a society at one point in time does not
guarantee its continued existence. There may be a revolution and the society may seize
to accept the rule. Thus the statement that Rex II has a right to legislate after Rex I’s
death presupposes the existence of the rule in the social group under which Rex I had
this right. [Hart is building up to the ROR].
[Austin’s redeeming feature= passive citizens. Don’t know law. His theory accounts for
this fact].
Jia Sajjal

(ii) The Persistence of Laws: In R V Duncan (1944) a woman was prosecuted in England and
convicted for telling fortunes in violation of the Witchcraft Act, 1735. This is an illustration of
how a statute enacted three centuries ago can still be good law? The question that arises is
how can law made by an earlier legislator long dead still be law for a society that cannot be
said to have habitually obeyed him?
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.
What Rex I declared to be a rule and survived his lifetime shall be adopted by Rex II, and Rex
III and so on and so forth. So when Rex I dies, his legislative work lives on for it rests upon
the foundation of the general rule which successive generations continue to respect.

Bentham and Austin have defended the idea of a habit of obedience integral in the
persistence of laws by stating that the law passed by Rex I, is obeyed by Rex II because of
tacit approval of the old law by Rex II. Even though Rex II could change the old laws he does
not do so in order to breed familiarity and continuity.

[Remember: With regard to habitual obedience Austin states that the requirement of HO is
to be rendered towards an institution and not the monarch (individual)]

For Austin the sovereign was someone who was obeyed by all but himself obeyed no one.
Next Hart considers this ‘illimitability’ of the sovereign. Hart is of the opinion that the
sovereign can and is challenged. To support his claim he gives examples of substantive
limitations and in particular those found in the United States of America where the division
of powers between the central government and also certain individual rights, cannot be
changed by the ordinary process of legislation. Any attempt to change these is to be
considered ultra vires, and declared legally invalid by the courts. The most famous such
example is the Fifth Amendment to the Constitution of the United States of America. This
provides, inter alia, that no person should be deprived ‘of life liberty or property without
due process of law’; statutes of Congress have been declared invalid by the courts when
found to conflict with these. [However, laws in contradiction to this very amendment exist.
Moreover, exceptions like Guantanamo bay today, and previously Abu Ghuraib can be seen
as going against this very piece of legislation and weakening Hart’s stance that the sovereign
is not illimitable. Such camps function with the approval of the higher ups in American
politics.]

Summary: Hart says that social rules involve a standard accepted by some members of a
social group, and the idea of a rule is better at explaining the law than the hierarchical, one-
off, nature of an order. Rules allowing for the distinction between legal duties and powers
can account for the fact that laws apply to the institutions that make them, and explain why
there are some laws that do not appear to have any particular origin, such as customary law.
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Chapter 5; Law as the Union of Primary and Secondary Rules: Hart commences this chapter by giving a
short summary of why the simple model of law as coercive orders fails to reproduce the salient features
of a legal system. These are;

Though the OBT theory claims to be applicable to all laws within a legal system, it only applies
most closely to matters of criminal law and even then it fails to recognize the fact that a criminal
statute, not only applies to the general public but also to those who enact it.
The OBT theory does not take into account other varieties of law. Notably those that confer
powers of a public or private nature.
The OBT theory does not recognize the fact that some legal rules differ in their mode of origin;
i.e. they do not come into being from anything resembling explicit prescription; Custom, Laws of
God.
The OBT theory also fails t take into account, in terms of the habitually obeyed sovereign, both,
continuity of law and persistence of law. Moreover, the sovereign cannot be identified with
either the electorate or the legislature of a modern state.

Moreover, Hart feels that the use of ancillary devices, such as the notion of tacit commands by the
defenders of Austin’s theory, have also failed as they cannot be applied to modern legal systems.
Similarly, the notion of power conferring rules as mere fragments of laws/ law being restricted to
directions applied to officials by Kelsen, distorts the bigger picture as it does not take into account the
peoples’ perspective.

In view of the above, Hart feels that these theories have failed because they do not take into account
the idea of rules, without which, one cannot elucidate even the most elementary points of law.

The Idea of Obligation: Hart feels that Austin’s theory, though flawed, started from the correct point of
view that law makes human conduct obligatory and non-optional. However, he points out, as he has
done before as well that being under an obligation and being obliged are inherently two different things.
Hart feels that being obliged/ forced to something is a psychological state dependent upon external
circumstances, whereas, having an obligation/ being under a duty does not require psychological
conditions or standards of rightness or wrongness, beliefs, or motives. The obligation would remain
because it is a norm NOT dependant on facts for its validity. [It will remain valid because it is duty-
external facts cannot and will not distort it]

Hart points out that as per Austin; an obligation has been defined not in terms of subjective and varying
situations, but in terms of a likelihood of sanctions in case of disobedience, making an obligation a
prediction of incurring evil in case of non-compliance. Hart is of the opinion that there are many reasons
for rejecting this interpretation, the fundamental of them being that Austin fails to take into account
that deviation or non-conformity for rules is the REASON for applying the sanction and not the other
way around. [The sanction is motivation for not breaking the law. The law is not, NOT broken because
people fear sanctions. This is a play of semantics again, two different ways of looking at the same
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picture] in other words what Hart is saying is that one needs to look at the INTERNAL ASPECT of rules
that people apply to themselves.

In order to understand the general idea of an obligation one must turn to the existence of social rules
which create that obligation. Being under an obligation implies the existence of a rule, however, it is
noteworthy that rules can also exist without obligating anyone e.g. rules of etiquette or speech are not
binding in nature but are rules nevertheless.

Hart says that what is important in determining whether rules are thought of as giving rise to
obligations is the importance or seriousness of social pressure behind them. Rules supported by
sufficient social pressure are important because they are deemed necessary for the maintenance of
social life and balance. An example can be formulating rules regarding the use of violence i.e. the
Criminal Procedure Code in Pakistan or the Offences Against the Persons Act in England. These make
sure that people do not inflict bodily harm on one another. Similarly, rules that require the keeping of
promises i.e. Contract, are often thought in terms of being an obligation or duty. Also, conduct required
by these rules may, while benefiting others, conflict with what owing the duty may wish to do.

The Internal Aspect of Laws: In a slightly more realistic way of putting things Hart points out that an
obligation Need not be a necessary result of social pressure. This he says with reference to crooks or
thieves who feel no serious pressure to conform to rules even though they have a social obligation to
not steal or commit crimes. Hart therefore brings in the internal and external points of view. He says
that the external observer views rules in terms of observable regularities of conduct, probabilities and
signs and NOT in the manner in which members of the group that adhere to the internal point of view,
look at their own behavior. To the external observer, deviation from the normal conduct is a sign that a
hostile reaction will follow and nothing more.

Hart stresses that what is necessary is an internal point of view and stemming from that, what he calls
the ‘critical reflective attitude’. He feels that the critical reflective attitude should consider certain
patterns of behavior to be the common standard and any deviance from it should display itself in
criticism (including self-criticism), demands for conformity and acknowledgments that such criticism is
justified. The question that arises here is that does criticism come first or attitude/behavior? Criticism is
said to depend or come as a result of attitude, but attitude is explained by reference to criticism and its
justification. This brings in a circularity which requires but does not receive any further clarification or
explanation by Hart.

Neil McCormick points out that the analysis of the internal point of view may be incomplete as it needs
to include an explanation of ‘what is meant by rules being generally accepted’, ‘supported by criticism’,
‘supported by pressure for conformity’ and so on. McCormick feels that such explanation should be with
reference to a wish or will that such pattern of conduct be upheld. Such wishes are based on feelings
that individuals have of being bound themselves and want others to experience the same feelings too.
Moreover, McCormick feels that it is also possible to have a third position between the strict internal
and external points of view of rules to take account of the situation of an uncommitted observer who
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can nevertheless interpret law normatively and make a detached statement. Hart, in his Essay in
Jurisprudence and Legal Philosophy has distinguished between a committed statement and a detached
statement expressing an internal point of view. Committed statements are made by those persons who
accept rules, detached statements are made by persons who speak of them as if they accept the rules
but do not commit themselves.

Hart thus feels that an internal point of view in pre legal societies, on part of their members is necessary
for the preservation of group cohesion and solidarity. In modern legal societies Hart says that although it
is desirable, it is not necessary for the public to have an internal point of view. It is sufficient if only
officials have this point of view. Officials must adopt an internal point of view of secondary rules as
meaningful guides to their own conduct and that of others.

What is Hart saying here then? Isn’t he saying that citizens need not obey law from an internal point of
view? Threat of Sanctions is sufficient? Austin was saying the same thing; the only difference was that
he used the phrase ‘habit of obedience’ instead of and internal or external point of view. Moreover,
critics have said that officials may not always necessarily internalize rules. They may obey them for
different reasons and inducements as exhibited in modern legal societies (they may be bribed, practice
favoritism etc).

However, defenders of Hart have said that the internal aspect of rules is not intended to reflect the
complexities of official compliance with secondary rules. It is just there to show the discourse between
the ‘outsiders’ and the ‘insiders’ in relation to a rule system. [But then what really is the practical
importance of this idea?]

The Notion of Primary and Secondary Rules: The starting point of Hart’s own theory is the definition of
what he calls 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.

It is the union of primary and secondary rules that is the key to the science of jurisprudence.

The Elements of Law: Hart says that a society can exist without courts as in the case of primitive
communities and in some parts of the world till date in villages. To explain this point, Hart presupposes a
society where there are only primary rules of obligation which the people of the community have to
conform to if they are to live in close proximity with each other. The second condition which makes it
crucial for this type of society to function is that the people who accept the rules must be in majority.
Jia Sajjal

The above conditions can only be applied to a small community where the bonds of kinship, common
sentiment, and belief are present in abundance to survive a regime of unofficial rules. The problem with
such a society and it application to a larger sphere would be that the rules would possess UNCERTAINTY
because it would be difficult to identify them, and there would be no explanation with regard to their
scope of application. Secondly, the rules may become STATIC because there will be no way of adapting
the rules to changing circumstances either by eliminating old rules or introducing new ones. And thirdly,
INEFFICIENCY by virtue of the fact that incase a dispute arises there will be no agency authorized to
inflict a sanction. This could result in arbitrary biases e.g. Mukhtara Mai case and more recently the Karo
Kari case in Pakistan.

In order to remedy these faults cure these defects Hart believes it is important to merge the primary
rules of obligation with secondary rules. It is this very union that will take the society from being pre-
legal to legal. [Three types of secondary rules; Rules of change, Rules of adjudication and the rule of
recognition]

Remedy for UNCERTAINTY: In order to cure the defect of uncertainty, Hart introduces what he considers
the master rule; The Rule of Recognition. Hart says that the ROR is a simple or a complex instrument
which possesses flexibility for it may not be more than a list or a text of rules found in a written
document or carved in some public monument. He points out that in a simple society it is not the
codification of rules which is considered a crucial step from a pre legal to legal scenario. What is crucial
is the acknowledgment of reference to the writing as AUTHORITATIVE. Thus, the ROR is a rule for
conclusive identification of the primary rules of obligation. The virtue of an ROR is that it provides
unification of rules instead of them remaining disconnected and this gives birth to a legal system.

Remedy for STATICITY: In order to remedy the static nature of rules, Hart feels that it is necessary to
introduce the ‘Rules of Change’. Which empower people to introduce new primary rules and to
eliminate old ones by specifying certain procedures like legislative enactment. The rules of change may
also enable private individuals to create rights and obligations in the form of wills, contracts and so on.

Remedy for INEFFICIENCY: In order to cure this defect it is important to introduce what Hart refers to as
‘The Rules of Adjudication’ which would confer powers on certain individuals to arbitrate or judge and
also define the procedures in accordance with which adjudication would take place.

Criticism of Primary and Secondary Rules: Roger Cotrell in Politics of jurisprudence; Considerable
uncertainty around nature of secondary rules. First identified by Hart as power conferring, but in his
later writings Hart says that the ROR can be both power conferring and duty imposing, depending on
how it is viewed. (Hart 1982: 258-259)

[Turn over for Joseph Raz and Neil McCormick]

Jia Sajjal

Chapter 6; The Foundations of a Legal System: According to Hart, the Rule of Recognition’s main
function is to identify whether another rule is part of the legal system or not. Wherever such a rule of
recognition is accepted, both private persons and officials are provided with authoritative criteria for
identifying primary rules of obligation. The criteria may take any one or more of the variety of forms:
meaning that they may include reference to authoritative text; to legislative enactment; to customary
practice; to general declarations of specified persons, or to past judicial decisions in particular cases.

In a modern legal system where there are a variety of sources of law the rule of recognition is
correspondingly more complex. In order to avoid conflict these sources of law are ranked. It is in this
very way that in the English legal system common law is subordinate to statute.

In the day-to-day life of a legal system its rule of recognition is seldom expressly formulated as a rule.
For the most part, the rule of recognition is not stated, but it existence is shown in the way in which
particular rules are identified, either by courts, their officials, or private persons or their advisors.

If a court uses an unstated rule of recognition, to identify particular rules of the system then that is a
characteristic of the internal point of view.

Hart then discusses the dichotomy between validity and efficacy. He says that there is no connection
between the two unless, the rule of recognition expressly recognizes in its criteria that no rule is to
count as a rule of the system if it has long ceased to be efficacious.

ROR, Supreme Criteria and Ultimate Rule: Hart further distinguishes between what he calls a supreme
criterion and an ultimate rule of recognition.

The supreme criterion is part of the rule of recognition and is the part which dominates over the rest.
Under this definition the supreme criterion in the United Kingdom would be parliamentary enactment.
And if a situation arises where the common law, or local or general custom, contradicts with it,
parliamentary enactment prevails.

The ultimate rule of the system is the rule of recognition itself because you cannot go further than that.
It is ultimate in the same sense that Kelsen’s basic norm is because we cannot trace validity back any
further.

Hart criticizes Kelsen on the point that according to Kelsen, the ultimate rule if recognition or the Grund
norm as he refers to it is presupposed or assumed. Hart considers this to be misleading. He feels that
saying that the ROR is assumed is wrong. It is neither valid, nor invalid but simply accepted as
appropriate for use in this way. To clarify his stance he uses the example of the meter bar in Paris and
the Big Ben in London which are considered to be the ultimate tests for correctness of measurement
and time respectively. Moreover, Hart also points out that it is vital to distinguish between ‘assuming
validity’ and ‘presupposing existence’ because if one does not do so it obscures the assertion that such a
rule exists.
Jia Sajjal

Hart is at pains to point out that the existence of the rule of recognition is a matter of empirical fact and
not a normative statement as Kelsen erroneously presupposes.

Minimum Conditions for the Existence of a Legal System: Hart says that it is pointless to talk about legal
validity unless the legal system is generally effective. The criteria for the existence of a legal system s
that:

The officials of the legal system must have an internal attitude towards the rule of recognition of
the system, and it is not necessary, although it is desirable, that private citizens have an internal
attitude towards rules as well. What is crucial according to Hart is the fact that there should be a
unified or shared official acceptance of the rule of recognition containing the systems criteria of
validity.
The valid legal rules of the system must me generally obeyed by both officials and private
citizens.

In an extreme case where an internal point of view is only amongst the officials, society would
become sheep like but it would still remain a legal system.

Hart states that a legal system exists when both the official sector (officials) and private sector (citizens)
are congruent/similar in their concerns with the law. If both points of view coincide there is harmony
and the legal system is valid.

However, there may be situation where this may not be the case. For example: in a time where society
has hit revolution or is on the brink of it. How will the existence of a legal system be determined then?

Hart also gives the example of ex colonies. In what is now India and Pakistan in the beginning there was
colonial legislature. Once the countries gained independence they abandoned those laws and adopted
their own rules of recognition.

Moreover, where unity among officials partly breaks down due to disagreement over certain
constitutional issues, this could lead to the breakdown of the legal system.