"A Critical Analysis of the Modern Theory of Legal Positivism Presented by Hart's The Concept of Law.

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If there is a canonical work it is H. L. A. Harts book, The Concept of Law, which analytical jurists read over and over (and then squabble among themselves as to what it means and whose position now is closest to what Harts is taken to be).1 - Jeremy Waldron.

Coleman and Shapiro, The Oxford Handbook of Jurisprudence and Philosophy of Law (Oxford, 2002) at 381.

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Introduction
The above quote by Waldron is in itself a testament to the work of the great H. L. A. Hart. His primary work, The Concept of Law, expounded Harts view on rules, the legal system and legal philosophy in general. Legal philosophy is a particularly interesting area of study because it is grounded in the boarder land between philosophy and law which, it would seem, neither philosophers nor lawyers are particularly comfortably discussing. Harts work inhabited this boarder land to create an academic fortress which withstands academic scrutiny to this very day. In this brief essay the development of legal positivism will be outlined and its meaning discussed. This will be followed by an in depth critical analysis of the contribution made to this school of thought by the renowned thinker H. L. A. Hart.

Legal Positivism
A debate which has run throughout legal philosophy for centuries is the debate between the philosophers of natural law and the philosophers of what is known as positivism. Natural lawyers generally hold the belief that law has an important moral dimension whereas positivist legal philosophers tend concentrate on what is posited, which is where the term positivism comes from. Legal positivists assert that law is not referable to any type of extrinsic moral system or set of ideas and that the law is instead a question of social fact. As the Oxford Dictionary of Law puts it, legal positivism is an approach to law which rejects natural law and contents that the law as it is laid down should be kept separate from the law as it ought to be in a moral sense.2 Basically this belief system believes in a degree in separation between morals and law, although it should be noted that this degree of separation
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Martin and Law, Oxford Dictionary of Law (Oxford, 6 ed., 2006) at 311.

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varies greatly, as Murphy demonstrates, there has been a plethora of legal philosophies that have cast the idea of the separation of morality and law in numerous ways.3 All legal positivists share two fundamental beliefs: first, that what constitutes law is a matter of social fact, this is known as the social thesis and second, that there exists no necessary connection between morality and law, this is known as the separability thesis. 4 There are, however, roughly two types of legal positivists.5 The first is the legal positivist who believes immoral law to be valid law. The second type of positivist believes that law can be determined by reference to set of purely legal criteria. Hart would wall into the secondary category because he accepted a limited role for morality in a legal system, as we shall see. This school of thought can trace its origin back to great thinkers such as Bentham and Austin6 and it is generally accepted that the twentieth century thinkers such as Kelsen, Raz and Hart have also contributed massively to this aspect of jurisprudence. For the purposes of this essay a natural place to begin is with the theory of John Austin (1790-1859) because as Simmonds points out, Austin and Hart share an aspiration to develop a concept of the law which clearly distinguishes between law and morals.7 As well as this, much of Harts work is based on criticising and improving Austins theories.

Murphy, Western Jurisprudence (Dublin, 2004) at 227.

Coleman and Leiter, Legal positivism in Patterson (ed.), A Companion to Philosophy of Law and Legal Theory (Oxford, 1996) at 241.
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Murphy, Western Jurisprudence (Dublin, 2004) at 226. Coleman and Shapiro, The Oxford Handbook of Jurisprudence and Philosophy of Law (Oxford, 2002) at 9. Simmonds, Central Issues in Jurisprudence: Justice, Law and Rights (London, 3 ed., 2008) at 146.
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In the view of Keating, Austin was one of the leading exponents of legal positivism in the nineteenth century.8 The fundamental nature of his theory can almost be summarised in his famous quote the existence of law is one thing, its merit or demerit is another.9 Austin wrote that laws properly so called are commands10 and that these forms of desire are characterised by a possible sanction known as an evil11 which is another way of saying punishment. He noted that a duty arose out of this command so for the purposes of his theory command, sanction and duty are interrelated. He believed that laws properly so called consisted of the laws of God and positive law, which are laws that are simply and strictly so called. For Austin, laws properly so called are laws set by men to men as political superiors.12 This political superiority stems from sovereignty. This exists where the majority of a political society is in the habit of obedience to a determinate common superior and that superior is in turn not habitually obedient to a superior. This means that the superior is not subject to legal limitation and this is one aspect of Austins theory which is subject to waves of academic criticism. Hart noted that the sovereign aspect of Austins theory is problematic because Austins conception of the sovereign as a person fails to explain the fact that legal rules remain valid even after a sovereign is removed from power. In order to build on this Hart formulates Austins conception of the sovereign as an office as opposed to a person. 13 This is done so that the power to make valid laws vests in the fact the individual is or is part of an office as
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Keating, Jurisprudence (Dublin, 2011) at 41. Austin, The Province of Jurisprudence Determined (Cambridge, 1995) at 157. Ibid at 6. Ibid at 7. Ibid at 18.

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Coleman and Leiter, Legal positivism in Patterson (ed.), A Companion To Philosophy Of Law And Legal Theory (Oxford, 1996) at 245.

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opposed to the individuals personal capacity. Hart commented on the rather simple14 outlook of Austins theory of the concept of law in the sense that it fails to take into account many aspects of a modern legal system, for example international law. As well as this, Hart noted that not all laws are limiting in nature, as Austins theory would indicate. As Coleman and Leiter pointed out, Hart correctly felt that many laws are enabling in nature for example the law of contract and that this fact is not incorporated into Austins theory. 15 The rather crude belief of Austin was that a valid law was simply a command by a sovereign backed by the threat of force. Hart realised that coercion alone could not distinguish valid law from threats and discarded the classical model set out in Austins theory. Hart instead noted the importance of the normative nature of law16, that is, that the law seeks to guide human activity by establishing a framework of norms for how one ought to behave.17 The above is simply a brief summary of the most fundamental criticisms of Austins command theory put forward by Hart. This insightful analysis of Austin is in itself an important contribution to jurisprudence but it is overshadowed by his most important work, The Concept of Law, which put forward a new theory of legal positivism.

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Hart, The Concept of Law (Oxford, 2 ed., 1994) at 24.

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Coleman and Leiter, Legal positivism in Patterson (ed.), A Companion To Philosophy Of Law And Legal Theory (Oxford, 1996) at 245.
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Hart, The Concept of Law (Oxford, 2 ed., 1994) at 239.

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Yankah, The Force Of Law: The Role of Coercion in Legal Norms, (2007) at 3. Article available at http://works.bepress.com/ekow_yankah/1.

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The Concept of Law

The Concept of Law was written in order to present a new and more modern theory of legal positivism. This is evident from the opening pages of the book itself, where Hart explains his dissatisfaction with the majority of the previous attempts to explain law and builds upon them, as the previous sections of this essay demonstrated. As this section of the essay will establish, Harts classic work did indeed re-write positivism. According to Freeman, contemporary analytical jurisprudence owes much to Hart.18 First it must be noted that Hart viewed laws as a species of social rules, which are distinguishable from habits.19 One of the primary aspects of Harts conceptualisation of the legal system is the existence of and the relationship between primary and secondary rules.20 A legal system can be seen as a union of both or these types of rules. Primary rules, or rules of obligation21 are similar to Austins commands as they concern actions which people are obliged to do or refrain from doing. This is done through duties which are legal and non-optional. Secondary rules, or rules about rules, set out the way in which primary rules may be recognised, repealed and adjudicated. They act in a supplementary manner to primary rules and it is this supplementation which Hart believed distinguishes a primitive pre-legal society from a legal one. The theorys primary and secondary rules allow for Harts definition of a legal system to be applied broadly across distance and time. His analysis of the law allowed him to come to the conclusion that no single concrete definition of the law is appropriate.

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Freeman, Lloyd's Introduction to Jurisprudence (London, 8 ed., 2007) at 373. Hart, The Concept of Law (Oxford, 2 ed., 1994) at 55. Ibid at 82. Ibid at 94.
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Hart believed that a society could survive with the existence of primary rules only, but the society would suffer from three defects; uncertainty, rigidness and inefficiency. As a result he argued for the existence of three secondary rules. The first and most important is the rule of recognition22 which deals with the uncertainty present in a regime of just primary rules. It is the ultimate criteria of validity so in that sense it is the equivalent of Austins doctrine of sovereignty in that it is a method of identifying what is valid law. In Harts opinion it can take many forms from the rather simple to the more complex. Its existence is a matter of fact and is shown in the way in which particular rules are identified.23 As Keating points out, although designated as a secondary rule, it is clearly of pivotal importance to Harts theory and is in therefore a basic rule. 24 Another set of secondary rules are the rules of change which deals with the static nature of rules. 25 This rule identifies the legislators who have the power to enact legislation and identifies what must be done to amend or repeal valid legislation. This rule is also powerconferring in nature, in the private sense. It allows for the creation of wills or contracts for example. Hart notes a very close connection26 between the rule of recognition and the rules of change. Finally, in order to remedy the inefficiency of the primary rule regime the rule of adjudication27 comes into play. This allows judges to make authoritative decisions and

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Ibid. Ibid at 101. Keating, Jurisprudence (Dublin, 2011) at 66. Hart, The Concept of Law (Oxford, 2 ed., 1994) at 95. Ibid at 96. Ibid at 97.
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allows them to fill in gaps in the law by using their own discretion. Groudine believes that the discussion of primary and in particular secondary rules constitutes a core element in Harts view that law is analytically tied to the concept of authority.28 Another aspect of Harts theory is that individuals of a particular society may view the law from two points of view; internal or external. Those who view legal rules from an internal point of view see their own behaviour and the behaviour of others in terms of rules. 29 Those who view the law from an external point of view obey rules simply because of the possibility of punishment.30 In the words of Hart the external viewpoint, employed by sociology, limits itself to the observable regularities of behaviour.31 So as Cotterrell notes, law can be seen as an observable social fact and at the same time the subjective meaning to the individuals subject to that law can be taken into account.32 As Waldron points out, Harts The Concept of Law proposes a two pronged set of conditions for the existence in a society of a system of positive law. 33 The first condition is the only one which private citizens must satisfy and that is that the rules of behaviour which are valid according to a system's ultimate criteria of validity must be, in the words of Hart, generally obeyed.34 This general obedience should be distinguished from acceptance, which is not required. The second condition is that the rule of recognition, the rule of adjudication and the

Groudine, Authority: H. L. A. Hart and The Problem with Legal Positivism, (1980) (Vol. IV) (No. 3) The Journal of Libertarian Studies 273 at 274.
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Hart, The Concept of Law (Oxford, 2 ed., 1994) at 56. Ibid at 89. Ibid at 90. Cotterrell, The Sociology of Law: An Introduction (Dublin, 1984) at 14. Coleman and Shapiro, The Oxford Handbook of Jurisprudence and Philosophy of Law (Oxford, 2002) at 365. Hart, The Concept of Law (Oxford, 2 ed., 1994) at 116.
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rules of change must be ...effectively accepted as common public standards of official behaviour by its officials.35 Murphy points out that Harts positivist views are conventionalist36 in nature. In effect, this means that the law is a result of a type of social convention which is a result of a general agreement in society. A key concept within conventionalism is that of authority and this, as an important aspect of Harts theory, is frequently subject to criticism. Clearly, it cannot be doubted that Harts work presented a new theory of legal positivism, but how sound is this new theory? Since its creation in 1961, Harts theory has endured waves of academic criticism from both natural lawyers and positivist lawyers alike. The more influential and fundamental of these criticisms will now be analysed.

Criticisms
As Harts theory is so fundamental to the study of jurisprudence it is unsurprising that its key elements are subject to varying degrees of criticism. For the purposes of this essay, criticism will be discussed primarily from the positivist camp, due to the obvious differences between natural lawyers and positivist lawyers. One aspect which has endured criticism since its conception is the secondary rule known as the rule of recognition. Murphy believes that roughly speaking, criticism of this concept can be divided into two separate but interrelated lines of argument; the incompleteness thesis ad the connection thesis.37 The so called incompleteness thesis states that no rule of
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Ibid at 116. Murphy, Western Jurisprudence (Dublin, 2004) at 229. Ibid at 247.

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recognition can offer a complete account of legal obligation for any legal system. A great proponent of this argument is Dworkin, through his work Taking Rights Seriously. Basically Dworkin focussed on modern judicial practices to demonstrate the incomplete nature of Harts notion of legal validity. He argued that in many cases, judges consider standards which have not passed any rule of recognition. This particular criticism ultimately led to a division in positivism between hard positivists and soft positivists, Hart falling most comfortably into the latter. 38 The connection thesis on the other hand argues that legal obligations stand in the same line as moral and ethical obligation and therefore to fully understand legal practices, external considerations must be taken into account. This criticism strikes at the foundation of Harts conception of the law and is argued by numerous authors including Dworkin and Alexy.39 Another source of criticism is the concept of authority, which is an integral part of Harts theory. Hart expounds the view that law is a system of authoritative norms however academics such as Groudine have a problem with the distinct ambiguity40 in the way Hart employs the concept of authority in his account of the nature of law. Groudine attempts to resolve the perplexities 41 in Harts usage of the concept of authority through analysing the relationship between legal validity and authority, but comes to the conclusion that Harts analysis of the concept of law completely fails to allow him to reject the notion that law consists of a system of norms possessing coercive superiority. She feels that no significant advance appears to have been made beyond the doctrine of Austin.42 This rather harsh
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Murphy, Philosophy of Law: The Fundamentals (Oxford, 2007) at 32. Murphy, Western Jurisprudence (Dublin, 2004) at 248.

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Groudine, Authority: H. L. A. Hart and The Problem with Legal Positivism, (1980) (Vol. IV) (No. 3) The Journal of Libertarian Studies 273 at 273.
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Ibid at 279. Ibid at 286.

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conclusion has some merit with respect to the concept of authority however Harts theory undoubtedly builds on that of Austin through a process of analytical criticism, as we have seen. Yankahs essay, The Force of Law: The Role of Coercion in Legal Norms, argues that coercive sanctions are a necessary feature of legal norms. He reaches the conclusion that there exists an inherent coercion43 in law itself and stresses that the importance of acknowledging this fact which, in his opinion, is something Harts concept of law does not do to a satisfactory degree. The criticism that Harts theory does not pay attention to the necessary coercive nature of law is a stark contrast to that of Groudine, who believes that Harts theory has not advanced the doctrine of Austin. This point demonstrates how areas such as legal philosophy are open to interpretation. Sartorius holds the view that Hart actually believed that the concept of a legal system is not to be elucidated by a set definition but rather that the term legal system is somewhat of an amalgamation of concepts. He uses a rather convincing quote from Hart himself to back up this statement. 44 He believes that if you wish to distil a definition of a legal system from Harts work, you must put together (1) what is said about the union of primary and secondary rules with (2) what Hart argues is the minimal content of Natural Law shared by both law and morals, and then combine all of this with (3) what Hart claims are the four

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Yankah, The Force Of Law: The Role of Coercion in Legal Norms, (2007) at 60. Article available at http://works.bepress.com/ekow_yankah/1.

I am not sure that in the case of concepts so complex as that of a legal system we can pick out any characteristics, save the most obvious and uninteresting ones, and say they are necessary. Much of the tiresome logomachy over whether or not international law or primitive law is really law has sprung from the effort to find a considerable set of necessary criteria for the application of the expression 'legal system'. Whereas I think that all that can be found are a set of criteria of which a few are obviously necessary (e.g., there must be rules) but the rest form a subset of criteria of which everything called a legal system satisfies some but only standard or normal cases satisfy all. Extract from Hart, Theory & Definition in Jurisprudence, (1955) 29 Proceedings of the Aristotelian Society 239 at 251.

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features of morality which distinguish it from law, custom, etiquette, and other kinds of social rules.45 However Payne demonstrates what he believes to be a flaw in Sartoriuss argument, namely that he fails to distinguish between Harts concept of law and his concept of a legal system.46 Another aspect of Harts theory which is subject to much criticism is the two minimum conditions for the existence of a legal system, which Sartorius believes constitute nothing more than purely formal criteria47 for the existence of a legal system. As Payne notes, the two minimum conditions are based on the distinction between primary and secondary rules.48 This is problematic in the sense that if a satisfactory distinction cannot be made, the two minimum conditions will fail. Payne notes how academics such as Singer49 have demonstrated ambiguity in the way in which secondary rules are described in that Hart defines them as power conferring and also as rules about primary rules. If the apparent characteristics of secondary rules cannot be reconciled the two minimum conditions must be rejected. This is the first of the three major defects argued by Payne. The second is that the distinction between habitual obedience and the acceptance of a social rule is not clear due to the fact that the notion of a social rule is developed and defended in terms of acceptance, while for valid rules it is neither necessary nor sufficient that such primary rules be accepted.50 The third defect concerns the lack of clarity for the distinction made between

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Sartorius, Hart's Concept of Law, (1971) More Essays in Legal Philosophy 131 at 139.

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Payne, Hart's Concept of a Legal System, (1976) 18 William and Mary Law Review 287 at 297. Available at http://scholarship.law.wm.edu/wmlr/vol18/iss2/4. Sartorius, Hart's Concept of Law, (1971) More Essays in Legal Philosophy 131 at 139. Payne, Hart's Concept of a Legal System, (1976) 18 William and Mary Law Review 287 at 299. Ibid at 300. Ibid at 316.

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rules of obligation and rules that do not impose obligations.51 In conclusion, Payne holds the view the minimum conditions are not only inadequate but that they also rest on unexamined assumptions about the nature of political obligation and political authority.52 Clearly, Harts theory is not without its flaws. Some aspects of his concept of the law have withstood criticism better than others, for example the idea of authority. Other aspects of his theory have, on the other hand, not withstood criticism as well, most notably the two minimum conditions for the existence of a legal system. As the above critiques show, the more Harts theory is examined, the more it struggles. This is to be expected considering how subjective jurisprudence is and it is argued here that despite its flaws it remains a pivotal work in legal positivism.

Conclusion
In conclusion, it is clear that Harts, The Concept of Law, presented a new theory of legal positivism. As this essay has demonstrated, Hart built on the theories of his positivist predecessors through very insightful critical analysis in order to help him establish a theory of the concept of law and the legal system based around the union of different species of rules and the relationship between authority and validity. His theory has been subject to much criticism, which is to be expected in an area as subjective in nature as jurisprudence. However, it is testament to Hart that his theory has the flexibility and the structural integrity to withstand such criticism in order to remain a pivotal part of positivist jurisprudence, more than half a century after its creation.

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Ibid at 317. Ibid at 319.

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Bibliography
Books: Coleman and Shapiro, The Oxford Handbook of Jurisprudence and Philosophy of Law (Oxford, 2002) Martin and Law, Oxford Dictionary of Law (Oxford, 6th ed., 2006) Murphy, Western Jurisprudence (Dublin, 2004) Coleman and Leiter, Legal positivism in Patterson (ed.), A Companion To Philosophy Of Law And Legal Theory (Oxford, 1996) Keating, Jurisprudence (Dublin, 2011) Simmonds, Central Issues in Jurisprudence: Justice, Law and Rights (London, 3rd ed., 2008) Austin, The Province of Jurisprudence Determined (Cambridge, 1995) Hart, The Concept of Law (Oxford, 2nd ed., 1994) Freeman, Lloyd's Introduction to Jurisprudence (London, 8th ed., 2007) Cotterrell, The Sociology of Law: An Introduction (Dublin, 1984) Murphy, Philosophy of Law: The Fundamentals (Oxford, 2007) Articles: Yankah, The Force Of Law: The Role of Coercion in Legal Norms, (2007) at 3. Article available at http://works.bepress.com/ekow_yankah/1

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Groudine, Authority: H. L. A. Hart and The Problem with Legal Positivism, (1980) (Vol. IV) (No. 3) The Journal of Libertarian Studies 273 Sartorius, Hart's Concept of Law, (1971) More Essays in Legal Philosophy 131 Hart, Theory & Definition in Jurisprudence, (1955) 29 Proceedings of the Aristotelian Society 239 Payne, Hart's Concept of a Legal System, (1976) 18 William and Mary Law Review 287 at 297. Article available at http://scholarship.law.wm.edu/wmlr/vol18/iss2/4

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