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Hart's Concept of Law

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Source: The Journal of Philosophy, Vol. 60, No. 8 (Apr. 11, 1963), pp. 197-220
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VOLUME LX, No. 8 APRIL 11, 1963
THE JOURNALOF PHILOSOPHY
HART'S CONCEPT OF LAW

S INCE World AVar II, the philosophy of law has had a curious
yet hearteningf revival. A subject that was one of the promi-
nent interests of many of the great philosophers of the past was
in danger, in the last hundred years, of nearly dwindling away,
and was kept alive only by the efforts and the interest of a handful
of thinkers, most of whom were primarily lawyers and jurists.
Under the heading of Jurisprudence it has been regarded for some
time as only a branch, and a minor branch, of legal study; im-
portant articles on the subject have been buried in the pages of
countless law journals, and books on the subject have rarely been
reviewed in philosophical journals, so that to discover any of these
practically required an expert knowledge of legal research. Morris
R. Cohen argued persuasively some years ago that jurisprudence
is a philosophical discipline,' and proceeded to exemplify this in his
own writing, but otherwise his argument did not meet with any
noticeable response.
This situation has now changed. No doubt legal philosophy will
never occupy the center of the philosophical stage, and metaphysics,
epistemology, logic, and ethics are in no danger of being displaced.
But legal materials offer copious and complex illustrations of vari-
ous philosophical problems and theses, and, moreover, the law is
now more widely recognized as being of philosophical interest in its
own right. The prediction is not too hazardous that this revival
of interest will receive considerable impetus by the publication of
Professor Hart's important book.* Professor Hart brings to the
subject a combination of technical legal knowledge and philo-
sophical acumen that is practically unrivaled, and The Concept of
1 Morris R. Cohen, "Jurisprudence as a Philosophical Discipline," this
JOURNAL, 10, 9 (April 24, 1913): 225-232; reprinted in Reason and Law
(Glencoe, Ill.: The Free Press, 1950).
*H. L. A. Hart, The Concept of Law (Oxford: The Clarendon Press,
1961), x, 263 p., $3.40 [commented on in this JOURNAL,Robert S. Summers,
"H. L. A. Hart on Justice," 59, 18 (Aug. 30, 1962): 479-500]. All further
references, unless otherwise specified, are page references to this book.
197
? Copyright 1963 by Journal of Philosophy, Inc.

198 THE JOURNAL OF PHILOSOPHY
Law is everything one would have expected it to be from his pre-

vious articles on the subject-clear, direct, illuminating, and sug-
gestive. There can be no doubt that it will be studied and dis-
cussed for many years to come-and will provide the material for
innumerable doctoral dissertations.
Professor Hart's main aim in the book is to elucidate the con-
cept of law, by providing an analysis of the distinctive and complex
elements that go together to make up a legal system, and by so
doing to provide a reasoned and informed answer to the question:
What is law?, or What is the nature of law? To this end he iso-
lates and distinguishes "three recurrent issues" which he claims
underlie the persistent question: What is law?: "How does law
differ from and how is it related to orders backed by threats? How
does legal obligation differ from, and how is it related to, moral
obligation? What are rules and to what extent is law an affair
of rules?" (13), and he promises to show that "it is possible to
isolate and characterize a central set of elements which foriim a
common part of the answer to all three" (16). But the purpose
of the book "is not to provide a definition of law, in the sense of a
rule by reference to which the correctness of the use of the word
can be tested; it is to advance legal theory by providing an im-
proved analysis of the distinctive structure of a municipal legal
system and a better understanding of the resemblances and differ-
ences between law, coercion, and morality, as types of social plie-
nomena " (17).
By this device Hart is enabled neatly to avoid, and rightly so,
the irrelevancies of the sort of last-gasp positivism represented by
Glanville Williams's provocative essay "The Controversy concern-
ing the Word 'Law' ",2 which could be squarely met by a counter-
essay on "The Controversy concerning the Word 'Definition'."
The question: What is law?, though it could be more nicely worded,
is both significant and important, the puzzlement it represents is
not the result of the influence of word magic, and it is not to be
answered-or rejected-merely by adopting a definition. Humpty
Dumpty, it should be remembered, eventually had a great fall;
apparently he was not master of the expression 'put together
again'.
2 Originally published in British Year Book of International Law, 22
(1945): 146; reprinted in a revised version and under the title given, in Phi-
losophy, Politics and Society, ed. by Peter Laslett (Oxford: Basil Blackwell,
1956), pp. 134-156. For scintillatinig criticism, see Ernest Gellner, ' Con-
temporary Thought and Politics," Philosophy, 32 (October, 1957): 353-356.
On the matter of "definition," see Max Black, Problems of Analysis (Ithaca,
N.Y.: Cornell University Press, 1954), essays I and II.

HART'S CONCEPT OF LAW 199
Central to the idea of law is the idea of a rule, and a large part
of the book consists in the elaboration of a complex distinction
between two types of rules, which are called primary and sec-
ondary:
Rules of the first type impose duties; rules of the second type confer powers,
public or private. Rules of the first type concern actions involving physical
movement or changes; rules of the second type provide for operations which
lead not merely to physical movement or change, but to the creation or varia-
tion of duties or obligations (79).
"In the combination of these two types of rule," Hart goes on

to say, "there lies what Austin wrongly claimed to find in the
notion of coercive orders, namely, 'the key to the science of juris-
prudence'. " Law is presented as "the union of primary and
secondary rules," and
The main theme of this book is that so many of the distinctive operations
of the law, and so many of the ideas which constitute the framework of legal
thought, require for their elucidation reference to one or both of these two
types of rule, that their union may be justly regarded as the 'essence' of law,
though they may not always be found together wherever the word 'law' is
correctly used (151).
This being the central theme of the book and its major contribu-
tion to the subject, it is the topic that calls for the most thorough
examination.
The effective argument of the book begins with three chapters
devoted to an examination of an Austinian type theory, a theory
of law corresponding to, though not representing exactly in all re-
spects, the theory of law set forth in John Austin's Province of
Jurisprudence Determined, according to which law consists in
orders backed by threats issued by a "sovereign" (or sovereign
body) habitually obeyed by those to whom the orders are issued
but not in the habit of obeying others. This theory of law, usually
called the "imperative" or "command" theory, has by now been
subjected to rather intensive examination, and is now pretty well
exploded as an adequate account of the nature of law. If there
is anyone who is still disposed to find such an analysis plausible,
he may be invited to consider the discussion of it presented in this
book. Hart's criticism of it (though many of the points he makes
are based on criticisms first presented by others) strikes me as
well-nigh conclusive, and I shall say no more about it. However,
it should be pointed out that in his criticism of this view Hart
introduces a number of the ideas that are central to his own theory,
so that an understanding of these chapters is indispensable for an
understanding of the rest of the book.

I
We may conveniently begin with a consideration of the follow-
ing passage:
The idea of a union of primary and secondary rules . . . mlay be regarded
as a mean between juristic extremes. For legal theory has sought the key to
the understanding of law sometimes in the simple idea of an order backed by
threats and sometimes in the complex idea of morality. With both of these law
has certainly many affinities and connexions; yet . . . there is a perennial
danger of exaggerating these and of obscuring the special features which dis-
tinguish law from other means of social control. It is a virtue of the idea
which we have taken as central that it permits us to see the multiple relation-
ships between law, coercion, and morality for what they are, and to consider
afresh in what, if any, sense these are necessary. ...
Though it would accord with usage to treat the existence of this
characteristic union of rules as a sufficient condition for the application of the
expression 'legal system', we have not claimed that the word 'law' must be
defined in its terms. It is because we make no such claim to identify or regu-
late in this way the use of the words like 'law' or 'legal', that this book is
offered as an elucidation of the concept of law, rather than a definition of
'law' which might naturally be expected to provide a rule or rules for the use
of these expressions (208).
With regard to the distinction, to which Hart attaches so much

importance, between an elucidation of the concept of law and a
definition of 'law', I must confess that it is not clear to me. It is
evident that nothing of value can come from starting out with a
stipulation as to how the term 'law' is to be used. But those who
have searched for a definition of law have surely been aware of
this; they had this course open to them and did not, for the most
part, attempt to follow it. I can see nothing wrong with the con-
clusion that Hart has provided a definition of law-not the sort of
definition one starts with, but the sort of definition one ends with;
and, of course, not a definition on the traditional pattern of genus
and differentia (cf. 14). But the concept of definition is wider
than that. The search for a definition of law, or for an adequate
account of the nature of law, is not really something mysterious,
though what will bring it to a successful conclusion may be; it is
the search for the distinctive, central, and important features that
mark off a complex and important social phenomenon. The fact
of borderline cases and the fact that there may be no set of prop-
erties common and peculiar to law cannot show that the search is
misguided. And surely this is what Hart has attempted to pro-
vide, for his account of the concept of law and of law as the union
of primary and secondary rules can justly be regarded as a defi-
nition (whether it is an adequate one has still to be seen) of the
essence of a legal system. As he himself says, this complex "union

may be justly regarded as the 'essence' of law" (151) (though it

is true that he adds that these two types of rules "may not always
be found together wherever the word 'law' is correctly used").
But one of the problems here is that we do not always know when
the word 'law' is correctly used-even though this is not one of the
most important problems. Moreover, as Hart himself has said:
"Definition, as the word suggests, is primarily a matter of drawing
lines or distinguishing between one kind of thing and another,
which language marks off by a separate word" (13), and this is
surely what Hart has attempted to do in the case of law, with his
concern for distinguishing law from coercion and morality.
I have my doubts whether morality-as distinct from an ethical
code adopted to regulate the conduct of the members of a profes-
sional group-is appropriately regarded as a "means of social
control." One might as well speak of the weather or of illness-
or of the laws of nature-as means of social control. For, as Hart
points out (171-172), the morality of an action, as distinct from its
legality, is not something that can be created or altered by the
exercise of human will, and a "means of social control," if the ex-
pression is to be significantly used, ought to be something that is
itself under human or social control.
For somewhat different reasons I am not convinced that coercion
is usefully to be regarded as a means of social control. Coercion
is a device that is frequently used by law, though it is not, as Hart
makes clear, the only one. But to speak of coercion as a distinctive
means of social control, as something distinct or separate from law,
is odd, to say the least. For then the factors that make for social
disorganization and disruption-a bandit brandishing a gun, a mad-
man with a bomb-would be means of social control. To eliminate
morality and coercion from the class of means of social control does
not mean that law is the only member left; for there are still such
factors as persuasion, the force of example, and appeals to self-
interest. I think Hart could have made clear his reasons for dis-
tinguishing law from coercion and morality without supposing that
they are members of a common class. His reasons, in my opinion,
are mainly historical: on the one hand, law has frequently been
confused with or reduced to coercive devices; on the other hand,
it has frequently been identified with morality.
But these are minor matters. What calls for intensive exami-
nation is the idea that "a legal system is a complex union of pri-
mary and secondary rules" (111) and that "a distinguishing, if
not the distinguishing, feature of law lies in its fusion of different
types of rule " (48).
This last statement is peculiar. What is this feature supposed

to distinguish law from? It surely does not distinguish law from

morality, which also consists of different types of rules, as well
as precepts such as principles and standards that cannot without
confusion also be regarded as rules. I take this point to indicate
a basic unclarity in the primary thesis of the book, and I shall go
on to develop this point further.
No doubt what Hart meant by this statement is not simply that
law is distinguished by the fact that it consists in the fusion of
different types of rules, but by the character of the different types
of rules it contains. What are these two types of rules? Hart
first introduces this distinction in a passage where he says:
What are called rules . . . may have very different relationships to the con-
duct with which they are concerned... . Some rules are mandatory in the
sense that they require people to behave in certain ways . . . whether they wish
to or not; other rules such as those prescribing the procedures, formalities, and
conditions for the making of marriages, wills, or contracts indicate what
people should do to give effect to the wishes they have (8-9).
The type of law that is most analogous to the notion of a general

order backed by threats and therefore provides the strongest sup-
port for the Austinian analysis is provided by a criminal statute.
There is even "some analogy . . . between such general orders and
the law of torts, the primary aim of which is to provide individuals
with compensation for harm suffered as the result of the conduct
of others" (27). Such rules are called primary rules; they impose
duties or obligations, and can be spoken of as being obeyed or dis-
obeyed. But not all rules of law have this character.
Legal rules defining the ways in which valid contracts or wills or marriages
are made do not require persons to act in certain ways whether they wish to
or not. Such laws do not impose duties or obligations. Instead, they pro-
vide individuals with facilities for realizing their wishes, by conferring legal
powers upon them to create, by certain specified procedures and subject to
certain conditions, structures of rights and duties within the coercive frame-
work of the law (27).
Such laws confer powers (and do not impose duties) "on indi-
viduals to mould their legal relations with others" and cannot be
likened to general orders backed by threats. An example would be
the law that a will, to be legally valid, must be signed and attested
to by two witnesses.
In addition, there is a "further class of laws which also confer
legal powers but, in contrast to those just discussed, the powers are
of a public or official rather than a private nature" (27). Ex-
amples are to be found in those "laws which lie behind the opera-
tion of a law court," such as rules determining jurisdiction and

HART'S CONCEPT OF LAWV 203
those determining the qualifications for judicial office. Other ex-

amples are to be found in "the rules which lie behind the exercise
of legislative powers," such as "a statute conferring legislative
powers on a subordinate legislative authority" (30, 31). Such
rules differ radically in function from rules of the primary sort,
which impose duties, and "the radical difference in function be-
tween such rules . . . prevents the use here of the terminology
appropriate to conduct in its relation to rules of the criminal law"
(31).
So the two types of rules, the union of which is at the heart of
a legal system, are, on the one hand, primary rules which impose
duties, and, on the other hand, secondary rules which confer
powers, private and public-powers or capacities on private indi-
viduals to perform certain acts within the law with the assurance
that these acts will receive legal recognition, and powers on public
bodies or officials for the making of laws and the adjudication of
disputes that arise under the law.
The questions with which I now wish to deal are these: Is this
distinction and classification of rules sufficient for the adequate
clarification of the nature of a legal system? Is it exhaustive?
And is it mutually exclusive?
1. Hart constantly speaks of what he calls "primary rules"
as imposing duties or obligations, and implies that it is only such
rules of law that can properly or appropriately be said to be
" obeyed " or " disobeyed. " But surely some rules are better
thought of as assigning rights rather than as imposing duties, and
the granting and protection of rights is at least as important a
function of a legal system as the imposing of duties and the con-
ferring of powers. It is true that not all rules of law are manda-
tory; some are permissive, and I do not see how Hart has allowed
for this. Moreover, not all rights that are legally exercised are
exercised by authority of an explicit rule. If we restrict ourselves
for the purposes of the present discussion to the field of what may
be called "action rights"-rights to do certain things or act in
certain ways , it seems clear that such a right can be legally
acquired in any of three distinct but related ways: (1) by a legal
rule expressly permitting such conduct; (2) by a rule enjoining
others, either a private party or an official body, from interfering
with such conduct; and (3) by the absence of a legal rule expressly
prohibiting it. Thus we can speak of explicit rights and implicit
rights. (The Ninth Amendment to the Constitution of the United
States says: "The enumeration in the Constitution of certain rights
shall not be construed to deny or disparage others retained by the
people. ")

No doubt this point could be construed as merely a matter of

emphasis. It could be and has been argued that every assignment
of a right to one person is automatically an imposition of a duty
on another, either a private person or an official body, not to inter-
fere with the conduct in question. But I doubt very much if it
is really just a difference in emphasis. The imposition of duties
would be unintelligible and pointless if it were not essential to the
protection of rights. Again, a rule granting someone a right to do
something is also a rule that cannot sensibly be spoken of as being
obeyed or disobeyed by the person to whom the right is assigned,
so that it is not clear in which of his two categories of rules Hart
would place rules of this kind. Still further, I have some suspicion
that Hart ignores this feature of law because he is more in the
grip of the Austinian metaphor of law as orders backed by threats
than would otherwise appear. And finally, unless I am altogether
mistaken, the concept of a right is an essential part of the concept
of a legal power, which plays such an important part in Hart's
analysis.
2. This brings me to my second point, whieh is that Hart does
not sufficiently analyze-indeed, I do not think that he analyzes at
all-the concept of a legal power. It is true, as Hart emphasizes,
that a legal power is not identical with a legal duty (see 27-31).
But what is its relationship to a legal duty and-something Hart
does not even touch upon-to a legal right? So far as I can see,
the closest the book comes to an analysis of "legal power" consists
in the assertion, following Hohfeld's analysis,3 that the absence of
a legal power is a legal disability and not a legal duty (242). We
have also the following brief passages:
A constitution which effectively restricts the legislative powers of the supreme
legislature in the system does not do so by imposinlg (or at any rate need not
impose) duties on the legislature not to attempt to legislate in certain ways;
instead it provides that any such purported legislation shall be void. It im-
poses not legal duties but legal disabilities. 'Limits' here implies not the
presence of duty but the absence of legal power (68).
Legal limitations on legislative authority consist not of duties imposed on the
legislator to obey some superior legislator but of disabilities contained in rules
which qualify him to legislate (69).
This gives us some help, but not enough, and I also think the
analysis hinted at here is oversimplified and inaccurate. For it
leaves out the notion of a right, and sometimes to overstep the
3 Wesley N. Hohfeld, Fundamental Legal Conceptions as Applied in
Judicial Reasoning (New Haven: Yale University Press, 1923), ch. 1. For
discussion, see Julius Stone, The Province and Function of Law (2nd ed.;
Cambridge: Harvard University Press, 1950), ch. 5.

H1ART'S CONCEPT OF LAWV 205
boundaries of a legal power is a legal (and not just a moral) wrong.

There need not always be a sanction attached to a legal duty, and
it is characteristic of legal duties imposed on courts and legis-
latures, in our legal system at any rate, that there usually are not.
Hart occasionally uses the language of a "right to make law"
or "a right to legislate" (53, 58, 73). I think the word 'power'
would be more appropriate here than 'right'. But this slip, if slip
it is, has some signiificance. For it indicates that there is some
relation between a right and a power, since it is so easy to slip
from speaking of one to speaking of the other. Does an ordinary
citizen, not a member of a legislature and with no troops at his
disposal, have a right to make law? Does a person who is not a
judge or in any way connected with the government have a right
to declare a certain law unconstitutional? The first question is
trickier than the second, though I think the answer to each ques-
tion is yes, even though this answer is likely to be misleading with-
out further qualification. For in each instance we are likely to
think of a right as a power. It would not be wrong for a private
citizen to declare that some provision is a law; it is just that this
declaration will have no legal effect; it is "legislation" with no
chance of passing. Similarly, any private citizen has the right to
declare a given law unconstitutional, and in fact it is the duty of
the executive and the legislative branches to consider the consti-
tutionality of any proposed piece of legislation. But such decla-
rations can have no legal effect, for only a court is authorized to
make such declarations, in the sense of having the legal power.
If I declare the Internal Security Act unconstitutional, there is a
sense in which I may be right; this may be the conclusion arrived
at by a reasonable reading of the Constitution and the language
of the Act; but the Act would still be the law of the land. The
Supreme Court, on the other hand, is in a privileged position with
respect to such matters (as it no doubt should be); if it declares
the Act unconstitutional, it is, and is no longer the law of the land,
My declaration has no legal effects; the declaration of the Supreme
Court does. But the difference in our positions on this matter is
not well described by saying that I have no right to make such
declarations whereas the Court does have this right. It is better
described by saying that the Court has the requisite power, whereas
I do not.
No doubt Hart would agree with at least the substance of what
I have just said, and I have said it not by way of criticism, but
rather to bring out the importance and the distinctive character of
the concept of a legal power. A legal power has been defined as
" an ability on the part of a person to produce a change in a

given legal relation by doing or not doing a certain act." 4 This

may be all right, so far as it goes, but I do not think it goes far
enough, for it does not bring out the connection between a legal
power and a legal right. I would suggest, very tentatively (for
I well remember the saying about fools rushing in), that a legal
power to do something may be analyzed as consisting in a legal
right to do it together with something else, which, for want of a
better word, I shall call a legal ability. Thus, "A has the power
to do x" will be equivalent to "A has the right to do x and A
has the legal ability to do x." 5 A consequence of this is that "A
does not have the legal power to do x" is then equivalent not to "A
has the legal duty not to do x" but to "either A has no right to do
x or A does not have the legal ability to do x." (Here a legal
ability is contrasted, not with a moral ability, but with physical
ability.) Consequently, though I have a perfect right to declare or
express the opinion that a certain act of Congress is unconstitu-
tional, this declaration will have no effects within the legal system.
I cannot make it unconstitutional by saying that it is, whereas
the Supreme Court can. It has the requisite power, I do not, and
neither does the President or even the Speaker of the House of
Representatives. (The fact that the Constitution contains no ex-
press grant of such power to the Court is clearly irrelevant here.)
But even though the proposition that some person or body lacks
the legal power to do something does not mean that he or it has the
legal duty not to do it, it does not follow that limitations on legis-
lative or judicial power are never duties-duties not to pass or
attempt to pass a certain law or exert a certain power. If a given
legal body is deprived of the power to act in a certain way, then
it may be legally wrong for it to do so or to attempt to do so.
And it is no good to say that such an act will be void, or a
"nullity" with no legal effects (66). For such an act can and
will have legal effects until it is officially declared a nullity by a
court with power to do so, and it may never be so declared. The
history of the Fifteenth Amendment to the Constitution, which
states that "The right of the citizens of the United States to vote
shall not be denied or abridged by the United States or by any
State on account of race, color, or previous condition of servitude, "
4 G. W. Paton, A Text-Book of Jurisprudence (2nd ed.; Oxford: The
Clarendon Press, 1951), p. 226.
5 A possible counterexample to this analysis may be provided by, what has
been referred to as "the peculiarities of criminal procedure which give the

jury a power, though not a right, to disregard the law as laid down by the
court in its instructions" (John Dickinson, Administrative Justice and the
Supremacy of Law in the United States [Cambridge: Harvard University
Press, 1927; reprinted 1959 by Russell & Russell, Inc., New York], p. 153, n. 79).

provides ample illustration of this. Moreover, the language in

which legal powers are granted or restricted does not always make
it clear whether action in excess of these powers or in clear viola-
tion of these restrictions is merely "null and void," or also, and
more basically, a violation of a duty. Taking another example
from the Constitution, consider the provision in Article I, Section
9, that "No tax or duty shall be laid on articles exported from any
State." Suppose Congress were to lay such a tax. It is not at
all clear that, in so acting in excess of its powers, it would not be
violating a legal duty imposed on it. Again, the Fourteenth
Amendment says, in part, that "No State shall . . . deny to any
persons within its jurisdiction the equal protection of the laws."
Is it so clear that this is merely the statement of a legal disability
and not the imposition of a legal duty? I think not. The many
states that have so frequently and flagrantly violated the spirit of
this Amendment seem to me not just to have exceeded their consti-
tutional powers-though, and this is another curious point about
"legal powers," not their effective and "de facto" legal power-
but also to have acted in a way that is legally wrong. When
Justice Holmes said, at the end of his famous dissent in Abrams
v. U.S. (250 U.S. 616, 624 (1919)): "I regret that I cannot put
into more impressive words my belief that in their conviction upon
this indictment the defendants were deprived of their rights under
the Constitution of the United States," it is a rather lame view
that would interpret this only as the expression of an opinion that
the Court had exceeded its legal or constitutional powers. A judge
has a duty to decide a case in accordance with the relevant law;
if he does not, his decision is liable to reversal, but in many in-
stances this liability to reversal is the only factor even resembling
a sanction attached to this duty. Moreover, his decision may not
in fact be reversed, since the parties may not pursue the matter
further, and no similar case may ever be brought to trial (perhaps
as a consequence of the original decision). In addition, an in-
ferior court in a precedent system is bound by (that is, has a duty
to follow) the decisions of higher courts, and in some legal systems
the higher courts are regarded as absolutely bound by their own
precedent decisions. This does not mean that they have not the
power to disregard precedent, but rather something like a duty not
to do so; yet there is no sanction attached to such a duty in the
sense in which a sanction is ordinarily attached to ordinary rules
of the criminal law.
From these points I draw three conclusions: (1) that the
Austinian analysis, according to which every rule imposing a duty
must have a specifie sanction attached to it, has had a greater

effect on Hart's theory than is at first apparent (though not, to be

sure, in all contexts-see 193-195, 213-214); and (2) that Hart's
analysis of the conditions under which "rules are conceived and
spoken of as imposing obligations" (84-85) is not altogether ade-
quate, for it does not seem capable of accounting for what is
meant by such expressions as 'the duty of a judge' or 'a court is
bound to follow precedent' (notwithstanding the possible answer
on pp. 142-143). I also conclude (3) that the classes of rules
that impose duties and of rules that confer powers are not mutu-
ally exclusive, and that the distinction between the two is neither
so clear nor so rigid as Hart's language (perhaps for the sake of
emphasis) would imply. And I do not regard the points on pp.
109-110 and 111-112 as a sufficient answer to this. A judge can
be said to break or violate the law even where the word 'disobey'
would be linguistically inappropriate. 'Disobey' applies primarily
to the breach of an order, but not all laws are orders. Yet to break
the law is to do what is legally wrong. One cannot "disobey" a
duty either.
I would add that in these important concepts of the duties of
officials of government-the duty of the executive to administer the
law, the duty of the legislature to abide by constitutional limita-
tions, and the duty of courts to abide by precedent and the holdings
of courts of superior jurisdiction-we have excellent evidence that,
although law may be distinct from morality in the ways that Hart
maintains it is (ch. IX), it is not altogether distinct. For these
important duties are both legal and moral, and it follows, there-
fore, that the existence of a legal system, as distinct from the ex-
istence of an effective regime of coercion, presupposes and rests
upon the acceptance of a more than rudimentary system of moral
ideas.
3. I come now to my third main point about this distinction
and union of two types of rules, which is that there seems to me
to be an ambiguity in the notion of a secondary rule. As this
distinction was first introduced, it was used to distinguish rules
imposing duties, which could be said to be obeyed or disobeyed,
from rules conferring private and public legal powers. Later on,
however, the concept of a secondary rule is spoken of, it seems to
me, in a somewhat different way. When Hart introduces the
concepts of rules of recognition, change, and adjudication (92-
95) and says that "the foundations of a legal system consist in
. . .the conceptioln of an ultimate rule of recognition which pro-
vides a system of rules with its criteria of validity" (107; cf. 97,
145), he seems to me to be shifting the use of the concept of a
secondary rule. Or, at any rate, there seems to me such a differ-

ence in character and function between ordinary rules that "confer

powers" both on private individuals and on official bodies and rules
providing the basis on which the validity of these less fundamental
power-conferring rules can be assessed, that these differences really
ought to be marked off by different labels. For the "ultimate rule
of recognition" is used, as Hart seems to imply (97), not just
"for the identification of primary rules of obligation" but also
for the identification of rules conferring powers. It is on a consti-
tutional level and not just on the level of the ordinary statute or
judicial determination. Consequently, instead of saying that "a
legal system is a complex union of primary and secondary rules"
(111), it seems to me that it would be at least somewhat better to
say that a legal system consists in a complex union of rules of law,
both criminal and civil and both obligation-imposing and power-
conferring, with various standards, criteria, or principles for de-
termining what is a rule of the system, its validity, its interpreta-
tion, its force, and its scope; these criteria would then be not them-
selves rules of law, but criteria of such rules.
4. But a legal system is really even more complex than this.
And this brings me to my fourth and final criticism of the thesis
I have been examining, which is that there are elements in a legal
system, of considerable importance, which are not only not ac-
counted for, but obscured, by the idea that law is a union of (just)
two types of rule. Professor Hart has many valid criticisms to
make of theories that attempt "to reduce apparently distinct
varieties of legal rule to a single form" (38) or "a single simple
type" (32) ; as he says, this effort to reduce to a "single simple
form the variety of laws ends by imposing upon them a spurious
uniformity" (48). But it may be said that his own view is nearly
as misleading in that it attempts to reduce the variety of laws
to a simple dual form and thus ends by imposing upon them a
spurious duality. It is not clear to me, for example, how rules
of evidence and procedure fall into Hart's scheme, or the well-
known presumption of innocence or other rules that create pre-
sumptions and thus throw the burden of proof in a trial on one
party or the other. Again, I am not clear how the rule that in a
criminal trial the evidence against the defendant must be such as
to establish his guilt beyond all reasonable doubt or the rule that
in a civil suit a preponderance of evidence amounting to probability
is sufficient can be regarded either as rules imposing duties (they
certainly do not impose primary duties) or as rules conferring
powers.
But these points are relatively minor. More fundamental is the
point that to conceive of law as made up solely or even primarily

of rules is to make the word 'rule' cover a multitude of propositions

that a just view of the matter would properly distinguish. The
distinction of legal propositions into legal rules, principles, and
standards-first presented, I believe, by Roscoe Pound-is now
well known and, I should think, reasonably well established.6 So,
unless he is merely using the term 'rule' as a blanket and amorphous
term, I am extremely puzzled why Hart should gloss over this
matter and present law as a union of two types of rules. This is
especially puzzling because there are places where Hart does permit
himself the luxury of vaguely referring to "general rules, stand-
ards, and principles" (such as p. 121), and there is a section of the
book (127-132) in which he actually discusses the nature and im-
portance of the distinction between "uniform, determinate rules"
and "vague, variable standards" such as "the standard of due
care in cases of negligence." One thing he says here is that
. . . the life of the law consists to a very large extent in the guidance both
of officials and private individuals by determinate rules which, unlike the ap-
plications of variable standards, do not require from them a fresh judgment
from case to case (132).
But one thing this implies is that the life of the law consists, at
least to some extent, not in the application of determinate rules,
but in the application of variable standards; and it is curious that
this distinction, given the importance Hart attaches to it, is not
reflected in his elucidation of the concept of law, but is rather ob-
scured by his too frequent use of the term 'rule'.
It is only fair to add, however, that Hart does say:
If we look into the various legal rules that confer legal powers on private
individuals we find that these themselves fall into distinguishable kinds.
Thus behind the power to make wills or contracts are rules relating to capacity
or minimum personal qualification (such as being adult or sane) which those
exercising the power must possess. Other rules detail the manner and
form in which the power is to be exercised, and settle whether wills or con-
tracts may be made orally or in writing, and if in writing the form of execu-
tion and attestation. Other rules delimit the variety, or maximum or minimum
duration, of the structure of rights and duties which individuals may create
by such acts-in-the-law. Examples of such rules are those of public policy in
relation to contract, or the rules against accumulations in wills or settlements
(28).
A full detailed taxonomy of the varieties of law comprised in a modern
legal system, free from the prejudice that all must be reducible to a single
simple type, still remains to be accomplished. In distinguishing certain laws
6 See Roscoe Pound, An Introduction to the Philosophy of Law (New
Haven: Yale University Press, 1922), pp. 116 ff.; Dickinson, op. cit., pp. 128-
156; and Paton, op. cit., pp. 175-181. On p. 249 Hart refers, oddly enough,
to Dickinson's discussion. For a distinctively different view of the matter,
see Richard Wasserstrom, The Judicial Decision (Stanford: Stanford Uni-
versity Press, 1961), pp. 99-105.

under the very rough head of laws that confer powers from those that impose
duties and are analogous to orders backed by threats, we have made only a
beginning (32).
These disclaimers should, of course, be kept in mind. But it seems

to me very dubious whether the various kinds of rules just de-
limited can be placed without distortion "under the very rough
head of rules that confer powers. " 7 And I take these disclaimers
as an admission that the elucidation of the concept of law presented
in this book, as a union of these two types of rules, and, conse-
quently, its characterization of the nature of a legal system are not
fully adequate.8
IT
One important distinction elaborated in the book is that be-
tween what is called the "internal" and the "external" points of
view with regard to rules. One reason for the importance of this
distinction is that it is basic to the view presented of the concepts
of legal validity and of the existence of a legal system:
If a social rule is to exist some at least must look upon the behaviour
in question as a general standard to be followed by the group as a whole.
A social rule has an 'internal' aspect, in addition to the external aspect which
7 A distinction corresponding in a number of respects to the one empha-
sized by Hart was elaborated some time ago by Sir Frederick Pollock, when he
distinguished what he called "determining rules" from "rules which declare
duties and affirm rights": "In order to have any real working acquaintance
with a system of law we must inquire, not only what duties and rights are
recognized, but how rights are acquired and lost; what rights are capable of
transfer, and how; by what acts and events duties are imposed. . . . The
conditions defining these things are . . . an integral part of the subject-matter
of law, and the rules which declare them are among the most important....
The statement that in England every one under the age of twenty-one years
is an infant is certainly a proposition of law; but it does not state any duty
or right. Legal capacity is not a right, still less is the want of it a wrong.'"
(A First Book of Jurisprudence [London: Macmillan and Co., Ltd., 1896],
part I, ch. 3, p. 73). Consider also the following statement by Paton, op. cit.,
p. 59: "Much law . . . is enabling rather than restrictive; although one law
may abridge liberty, a second may give powers which otherwise a citizen would
not possess."I
8 It can also lead to some anomalies, as where it is said that "Possession
of these legal powers makes of the private citizen, who, if there were no
such rules, would be a mere duty-bearer, a private legislator. He is made
competent to determine the course of the law within the sphere of his con-
tracts, trusts, wills, and other structures of rights and duties which he is
enabled to build" (40; cf. 94). This may be true, in a certain sense, of wills,
but it is surely not true, even in a stretched and metaphorical sense, of con-
tracts. To make a contract-that is, a mutual agreement-is surely not to
make a law that the other party to the contract is bound to follow; each
party to a contract binds himself, and not the other party, and this is not
to legislate.

it shares with a social habit and which consists in the regular uniform be-
haviour which an observer could record (55). . . . It is possible to be con-
cerned with . . . rules, either merely as an observer who does not himself
accept them, or as a member of the group which accepts and uses them as
guides to conduct. We may call these respectively the 'external' and the
'internal points of view'. . . . The external point of view . . limits itself
to the observable regularities of behaviour (86, 88; cf. 96, 99, 244).
This distinction, in its many forms, is put to a number of uses in

the book. One of them is to bring out the distinction between a
"social rule" and a "social habit." Another is to bring out the
distinctive features of "obligations" and to show what is wrong
with "predictive" analyses of "obligation" and, consequently,
with the prediction theory of law. The distinction is of consider-
able interest, but I do not wish to examine it on its own account.
I have mentioned it mainly to provide a context for considering
what Hart says about the foundations of a legal system, which are
said to "consist not in a general habit of obedience to a legally
unlimited sovereign, but in an ultimate rule of recognition pro-
viding authoritative criteria for the identification of valid rules of
the system" (245). What I wish to consider is the claim that
"the question whether a rule of recognition exists and what its
content is, i.e. what the criteria of validity in any given legal sys-
tem are, is . . . an empirical, though complex, question of fact"
(245).
On Hart's view, to say that a given rule of a system is valid is
"to recognize it as passing all the tests provided by the rule of
recognition and so as a rule of the system" (100). It is not to say
that the particular rule is efficacious, that is, generally obeyed; for
there is no necessary or uniform connection between the efficacy
and the validity of a rule of law. However, "From the inefficacy
of a particular rule . . . we must distinguish a general disregard
of the rules of the system. . . . One who makes an internal state-
ment concerning the validity of a particular rule of a system may
be said to presuppose the truth of the external statement of fact
that the system is generally efficacious" (100-101). Thus the state-
ment that a given rule of a system is valid is an internal statement
[of law?] ; the statement that the system is generally efficacious is
an external statement of fact. But the concept of legal validity is
applicable only to particular rules of a given legal system and is not
applicable to the ultimate rule of recognition in terms of which
the validity of particular rules of the system is assessed; for "there
is no rule providing criteria for the assessment of its own legal
validity ":
When we move from saying that a particular enactment is valid, because
it satisfies the rule that what the Queen in Parliament enacts is law, to saying

that in England this last rule is used by courts, officials, and private persons
as the ultimate rule of recognition, we have moved from an internal statement
of law asserting the validity of a rule of the system to an external statement
of fact which an observer of the system might make even if he did not accept
it (104).
We only need word 'validity', and commonly only use it, to answer ques-
tions which arise within a system of rules where the status of a rule as a
member of the system depends on its satisfying certain criteria provided by
the rule of recognition. No such question can arise as to the validity of the
very rule of recognition which provides the criteria; it can neither be valid nor
ilnvalid but is simply accepted as appropriate for use in this way (105-106).
This then leads to the concept of the existence of a rule in this way:
Whereas a subordinate rule of the system may be valid and in that sense
'exist' even if it is generally disregarded, the rule of recognition exists only
as a complex, but normally concordant, practice of the courts, officials, and
private persons in identifying the law by reference to certain criteria. Its
existence is a matter of fact (107).
I take this last point as confirming something that I claimed before,

that the "ultimate rule of recognition" must be a "rule" of an
entirely different type from the ordinary rules of law. But I find
this claim puzzling in other ways. How can a rule be a practice?
I should have thought that a practice would be defined by rules,
and find it odd that a rule should be identified with a practice.
For this seems to me to imply that it is not a rule at all, in any
accepted sense. Can such a "rule" (practice) be broken? vio-
lated? formulated? Can it be said to require, prohibit, or permit
anlything? A rule can confer a power; but can a practice, where
a practice is not itself defined or constituted by rules? There may
be some simple resolution to these perplexities, but, as should be
obvious, I have no idea what it is. And my difficulties are merely
reinforced by what Hart goes on to say about the existence of a
legal system:
There are . . . two minimum conditions necessary and sufficient for the
existence of a legal system. On the one hand those rules of behaviour which
are valid according to the system's ultimate criteria of validity must be gen-
erally obeyed, and, on the other hand, its rules of recognition specifying the
criteria of legal validity and its rules of change and adjudication must be
effectively accepted as common public standards of official behaviour by its
officials (113).9
So long as the laws which are valid by the system's tests of validity are
obeyed by the bulk of the population this surely is all the evidence we need
in order to establish that a given legal svstem exists (111)-
9 On Hart's own showing these cannot be sufficient, because they are not
all that is necessary. Cf. pp. 148-149: "Though every rule may be doubtful
at some points, it is . . . a necessary condition of a legal system existing, that
iiot every rule is open to doubt on all points."

This, I think, is the crux. Hart has claimed that the question
whether a legal system exists is a question of fact. But the ques-
tion whether a law is valid is a question of law and not a question
of fact, in the sense in which such a distinction is ordinarily made.
How then can the question whether a legal system exists be just
a question of fact? Though the question of obedience may be a
factual question, the assertion that the obedience referred to is
obedience to "laws which are valid by the system's tests of valid-
ity" is an assertion of law, and if this distinction does not hold here
it does not hold anywhere, and there would be no point to the
claim that Hart is making. The question whether a legal system
exists would seem to be complex in a sense of 'complex' which
Hart has failed to consider.
Of course I am assuming that Hart is using the expression
'question of fact' in the sense in which it is contrasted with 'ques-
tion of law', and I think this is readily supported by the context.
It is surely implausible to suppose that he is here contrasting a
"question of fact" with a "question of logic." Two other con-
cepts frequently contrasted with "matter of fact," and which add
to the complexity of this elusive notion, are "opinion" and
"value." I doubt very much whether Hart wishes to deny that
the question whether a legal system exists is ever a matter of
opinion. But it is quite possible that he does wish to deny that
this question is ever a question of value or morality. This is borne
out by his attempt in chs. VIII and IX to distinguish law from
morality (see esp. 205-207), and his claim that the question of the
validity of a law is to be distinguished from its morality. This
raises a whole new set of issues, which I shall not enter here. So
I shall simply register my opinion that the claim that the question
whether a legal system exists never involves any issues of morality
or any judgments of value is more complex than even Hart's ad-
mirable treatment of the subject would suggest, and requires more
argument than he has given it.
The distinction between "fact" and "law" is both obscure and
elastic.10 Nonetheless some things of relative clarity can be said
about it, which will bring out why I find a difficulty in what Hart
has said here. The question whether a legal system exists cannot
be a question of fact, as opposed to a question of law, in the sense
10 For a stimulating and too little known discussion of this distinction,
see James Bradley Thayer, A Preliminary Treatise on Evidence at the Common
Law (Boston: Little, Browin, and Company, 1898), ch. 5. Cf. Dickinson, op.
cit., pp. 50-55, 312-319. An especially interesting discussion of the concept
of a fact is "On Not Worshipping Facts," by J. R. Lucas, The Philosophical
Quarterly, 8 (April, 1958): 144-156.

in which this complex and shifting distinction operates within the

law. The legal distinction between fact and law is a special one.
No doubt it will vary from one legal system to another and will
even vary within a single legal system. Even so, a finding of fact
in a court of law is always a legally determined one, made in ac-
cordance with the rules of the system. It cannot be overturned
by any mass of evidence, no matter how conclusive, accumulated
outside the purview of a court of competent jurisdiction. Thus we
speak of a legal "finding" of fact-the defendant is found or
judged guilty. There may be excellent evidence, either known at
the time or discovered later, to show that he is not in fact guilty,
in the ordinary sense of the term; that is to say, that he did not in
fact do what he was accused of doing and "found" to have done.
But this does not show that he is not "guilty" in the legal sense,
that in law he did not do the act in question, any more than it has
any automatic tendency to release him from prison. This could
only be "found" in a new trial on the basis of the new evidence,
and sometimes the evidence bearing the other way will be legally
inadmissible and hence without legal effect. A court or a jury is
a " fact-finding body " only in a special, complex, and perhaps
Pickwickian sense. This is one of the reasons why someone can
be "legally" guilty and in fact not, or "legally" innocent and in
fact not. But, within the law, questions of guilt or innocence are
normally regarded as pure questions of fact (apart from such
complications as are imported by questions of negligence and in-
sanity) and are said to be "for the jury." This shows that the
distinction as it operates within the law is a special one, not what
it would appear to be, and that the concept of "a question of fact"
has different senses in different contexts. It is unfortunate, there-
fore, that Hart did not pursue this matter further.
For these reasons I am unconvinced by the claim that "the
question what the criteria of legal validity in any legal system are is
a question of fact" (245), and must confess that I have almost no
idea what Hart intends by it (but see 118).
One further point on this matter. The United States Constitu-
tion spells out in some detail, though no doubt with fringes of
vagueness, the conditions under which an Act of Congress "shall
become a law." The question whether these conditions have been
complied with, or whether some law has been passed in pursuance
of the Constitution, is a question of law, which can be officially and
authoritatively answered only in a court of competent jurisdiction
-though, of course, anyone is entitled to have an opinion on the
matter. If, however, the courts were persistently to strike down
(or approve) laws passed in clear compliance with (or violation of)

the appropriate provisions of the Constitution or if they paid no

regard to consistency in their reference to these provisions, the
legal system defined by the Constitution would break down or be
transformed into something different. Furthermore, if orders of
courts were generally disregarded or if orders of the Supreme
Court were generally disregarded by inferior courts, then the legal
system could also be said to have broken down. The assertion that
such a situation exists could be construed as an assertion of fact,
and this may be what Hart has in mind. But if so, I can only
think that he has confused matters by asserting that "the ques-
tion what the criteria of legal validity in ainy legal system are is a
question of fact."
III
In legal philosophy perhaps the main rival to the imperative
type of theory which Hart has previously discussed (frequently
and ambiguously called "legal positivism" -see 253) and which
provided the springboard for the presentation of his own view has
been presented by theories that maintain that there is some sort
of special and necessary connection between law and morality.
Hart devotes two chapters to the discussion of this matter (VIII
and IX), in which, among other things, he discusses the notion of
justice and the reasons for its specially close connection with law;
the features that distinguish moral rules from legal rules and,
hence, the distinctive characteristics of morality; and the various
ways in which law and morality may be related. There is much
here that is interesting and important, but I shall confine myself,
on the present occasion, to a few isolated remarks.
Hart claims that "justice is a distinct segment of morality"
and that "laws and the administration of laws may have or lack
excellences of different kinds" (153). This last statement may be
admitted without its being admitted that these other "excellences"
are moral excellences; not all merits or defects are moral ones, and
neither are all terms of appraisal. "We might," Hart says, "ex-
press our approval of a law requiring parents to send their children
to school, by saying that it was a good law and our disapproval of
a law forbidding the criticism of the Government . . . by calling
it a bad law. Such criticisms would not normally be couched in
terms of 'justice' and 'injustice' " (154). I see no force in this
context in appeals to the terms in which something would or would
not "normally be couched"; even so, I see nothing strange in using
the terms 'just' or 'unjust' in reference to such laws. Someone
might complain that the law requiring parents to send their chil-
dren to school was unjust, on the grounds that it was an un-

warranted interference with his liberty. The answer that it is not

unjust, accompanied by appropriate reasons, would not then be
odd or unintelligible, supposing, as I do not, that it would have
been so in the first place. Moreover, the claim that a law is good,
or bad, is normally based on an appraisal of its actual or probable
effects, and is then a judgment of value and not thereby a moral
judgment. If it should be, as it is sometimes, intended as a moral
judgment of the law, then it is a very complex one, in which
evaluative and moral factors are mixed, and then the more specific
question of the justice of the law is inextricably involved.
This issue comes to a head in Hart's remark:
That just and unjust are more specific forms of moral criticism than good
and bad or right and wrong, is plain from the fact that we might intelligibly
claim that a law was good because it was just, or that it was bad because it
was unjust, but not that it was just because good, or unjust because bad (154).
This point may be readily admitted, so far as it pertains to good

and bad, for reasons already alluded to. But there is nothing un-
intelligible in claiming that a law is just because it is right, or
unjust because it is wrong. And, questions of "intelligibility"
apart, neither type of claim is one that provides adequate or suffi-
cient reason. Furthermore, if Hart's claim is sound, then 'just'
and 'unjust' would seem to be more fundamental than the other
concepts mentioned, not just more specific. I also do not agree
with the claim that "Justice constitutes one segment of morality
primarily concerned not with individual conduct but with the ways
in which classes of individuals are treated" (163), which such ex-
amples as the above were intended to support, because I do not
admit the justice, or even the validity, of the distinction. Moral
judgments of individual conduct, in my view, necessarily involve
a reference to classes of cases. (This may be regarded as a poor
excuse for an argument, but this is not the place for another book
on the subject.)
But all this is really by the way, and I have mentioned it only
to prepare the ground for a (happily) brief consideration of what
Hart has to say about Natural Law. Hart's discussion of this
doctrine, under the heading of "The Minimum Content of Natural
Law" (189-195), is intended to show that certain simple facts,
or "truisms," that he mentions "afford a reason why, given sur-
vival as an aim, law and morals should include a certain content,"
for
. . .without such a content laws and morals could not forward the minimum
purpose of survival which men have in associating with each other. In the
absence of this content men, as they are, would have no reason for obeying
voluntarily any rules; and without a minimum of co-operation given voluntarily

by those who find that it is in their interest to submit to and maintain the
rules, coercion of others who would not voluntarily conform would be im-
possible (189).
These simple facts, which I do not intend to amplify here, are

presented under the headings of "human vulnerability," "ap-
proximate equality," "limited altruism," "limited resources," and
"limited understanding and strength of will," and enable Hart to
show (a) that it is not part of the concept of law that a legal sys-
tem must provide for sanctions, and (b) that it is not just a con-
tingent and accidental fact that most legal systems do provide for
sanctions.
'Sanctions' are . . . required not as the normal motive for obedience, but
as a guarantee that those who would not voluntarily obey shall not be sacri-
ficed to those who would not. To obey, without this, would be to risk going
to the wall. Given this standing danger, what reason demands is voluntary
co-operation in a coercive system (193).
Sanctions, however, though not a logical necessity, are a necessity

if a legal system
is to serve the minimum purposes of beings constituted as men are....
Given the setting of natural facts and aims, which make sanctions both pos-
sible and necessary in a municipal system . . . this is a natural necessity;
and some such phrase is needed also to convey the status of the minimum
forms of protection for persons, property, and promises which are similarly
indispensable features of municipal law (195).
Now I think all this is both sound and important. But it leaves
a somewhat confused impression. Is it consistent with Hart 's
morally neutral account of the concept of law and with the ex-
ternal point of view that he adopts throughout 11for him to say, as
he does (188), that "there are certain rules of conduct which any
social organization must contain if it is to be viable"? For the
points that Hart makes here sound suspiciously like the claim that
they are necessary (though of course not logically necessary) parts
of the content of every genuine (and I am tempted to add "legiti-
11 The external point of view manifested throughout the book is illustrated
by a statement on p. 160: "The connexion between the justice and injustice
of the compensation for injury, and the principle 'Treat like cases alike and
different cases differently', lies in the fact that outside the law there is a
moral conviction that those with whom the law is concerned have a right to
mutual forbearance from certain kinds of harmful conduct." Surely this
conviction, even though it be a moral conviction, is not sufficient to establish
any such connection. If it were said, rather, that "the connexion . . . lies
in the fact that those with whom the law is concerned have a moral right to
forbearance from certain kinds of harmful conduct," then there would be
such a connection. But Hart, apparently, is precluded from saying this by
his external point of view, and this brings out, unmistakably, another limita-
tion of this "point of view."

mate") legal system. If so, there is a more intimate and legitimate

union of morality and law than he officially allows for.
IV
As extended as this discussion has been, there are of course a
number of important features of the book on which I have not even
touched. But enough, of course, is enough-at least at any one
time. Yet there are two or three of these other features that ought
to be mentioned. Hart 's discussion of "rule-skepticism," the
doctrine, characteristic of what is known as "legal realism," which
maintains that law does not really consist in rules, which are an
unnecessary and misleading appendage, seems to me masterly; and
his criticism of the doctrine that "the law (or the constitution)
is what the courts say it is" (138-144) is both brilliant and
definitive. The same applies to his discussions of various behavior-
ist and prediction theories of law, which maintain that the law
consists simply in the prophecies of what the courts will do in fact
or in the behavior of certain officials called "judges." He has
also given the most convincing account available of what is wrong
with the various theories of law that maintain that law consists
in the rules that courts apply in deciding cases, so that statutes
are not themselves law, but only sources of law. Finally, his dis-
cussion of the question whether international law is "really law"
is one of the most sensible and illuminating I have ever seen on
the subject, though I think more elaboration is needed of the claim
that the analogies between international and municipal law are
"those of function and content, not of form" (231). (The re-
verse statement sounds to me just as plausible; consider a similar
remark on p. 179.)
Not everything Hart has to say, even in connection with his
central doctrine, is original with him, and this is not always
brought out even by the useful bibliographical notes and comments
at the back of the book.12 But this is no great defect. As William
12 For example, his distinctions of two types of laws, and of two types
of powers, were foreshadowed by Salmond. Cf. Stone, op. cit., p. 119: "This
separation off of 'powers ' was developed in the British literature by John
Salmond . . . who classified 'a power' separately from a right . . . defined
it . . . as an 'ability conferred upon a person by the law to determine, by
his own will directed to that end, the rights, duties, liabilities or other legal
relations either of himself or of other persons'. He pointed out that such a
power might be either 'public' as vested in an official, or private; and that
in the latter case ' a power ' to determine another 's relation was commonly
called an authority, and power to determine one 's own, a capacity." Cf.
John W. Salmond, Jurisprudence, or The Theory of the Law (3rd ed.; London:
Stevens and Haynes, 1910), p. 196.

James once said, "Any fool can be original." What counts is the
value of the distinctive product that results. The book does not
have the comprehensive coverage one is accustomed to find in
works on this topic, such as is provided in the usual works on
"jurisprudence." But this is a good thing, for the belief has
prevailed too long, as Hart says, that "a book on legal theory is
primarily a book from which one learns what other books contain
(viii). Moreover, the book is in the tradition of "analytical juris-
prudence," and, despite its success in showing the interest and
utility of this approach, it needs to be supplemented by an ap-
proach from the point of view of what I prefer to call "normative
jurisprudence" (which would rest on the basis of an adequate
ethical theory).13 Nevertheless, I trust enough-indeed, more than
enough-has been said to demonstrate the value and importance
of the book. It is one of the few books of which it can truly be
said that it is indispensable reading for all students of the phi-
losophy of law.
MARCUSG. SINGER
THE UNIVERSITY OF WISCONSIN, and
BIRKBECK COLLEGE, THE UNIVERSITY OF LONDON
SIXTY-FIRST ANNUAL MEETING OF THE AMERICAN

PHILOSOPHICAL ASSOCIATION, WESTERN DIVISION
The sixty-first annual meeting of the Western Division, APA,
will be held on May 2-4, 1963, at the Deshler Hilton Hotel in
Columbus, Ohio; the Ohio State University will be host.
The Carus lectures for 1963 will be delivered by Ernest Nagel
of Columbia University, on the general topic of "The Dimensions
of Critical Philosophy." The program of the meetings will be
as follows:
THURSDAY, MAY 2
9 :00 A.M. REGISTRATION, Foyer of the Ballrooml.

COMMITTEE ON INFORMATION SERVICES, Lionel Ruby, chair-
man, Room 218 (off the Ballroom).
9:00 A.M. Joint Program of the WESTERN CONFERENCE ON THE
TEACHING OF PHILOSOPHY and the SOCIETY FOR CREATIVE
ETHICS, Yellow Room
"Love and Wisdom: The Teaching of Philosophy": Richard
McKeon, Chicago
Henry Nelson Wieman, Southern Illinois
13 A good beginning has been provided by Wasserstrom, in The Judicial
Decision.


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Hart's Concept of Law

This content downloaded on Thu, 17 Jan 2013 15:34:13 PM

THE JOURNALOF PHILOSOPHY

HART'S CONCEPT OF LAW

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Law is everything one would have expected it to be from his pre-

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"In the combination of these two types of rule," Hart goes on

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With regard to the distinction, to which Hart attaches so much

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may be justly regarded as the 'essence' of law" (151) (though it

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to distinguish law from? It surely does not distinguish law from

The type of law that is most analogous to the notion of a general

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those determining the qualifications for judicial office. Other ex-

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No doubt this point could be construed as merely a matter of

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boundaries of a legal power is a legal (and not just a moral) wrong.

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given legal relation by doing or not doing a certain act." 4 This

been referred to as "the peculiarities of criminal procedure which give the

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provides ample illustration of this. Moreover, the language in

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effect on Hart's theory than is at first apparent (though not, to be

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ence in character and function between ordinary rules that "confer

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of rules is to make the word 'rule' cover a multitude of propositions

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These disclaimers should, of course, be kept in mind. But it seems

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This distinction, in its many forms, is put to a number of uses in

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I take this last point as confirming something that I claimed before,

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in which this complex and shifting distinction operates within the

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the appropriate provisions of the Constitution or if they paid no

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warranted interference with his liberty. The answer that it is not

This point may be readily admitted, so far as it pertains to good

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These simple facts, which I do not intend to amplify here, are

Sanctions, however, though not a logical necessity, are a necessity

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mate") legal system. If so, there is a more intimate and legitimate

This content downloaded on Thu, 17 Jan 2013 15:34:13 PM

SIXTY-FIRST ANNUAL MEETING OF THE AMERICAN

9 :00 A.M. REGISTRATION, Foyer of the Ballrooml.

This content downloaded on Thu, 17 Jan 2013 15:34:13 PM

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