H.L.A. Hart
H.L.A. Hart
H. L. A. Hart served as the Professor of Jurisprudence at the University of Oxford from 1954 until 1969. During that period, he was responsible for the education of a significant number of the current judges serving in the courts of England and the Commonwealth. In addition, he was very successful in his commercial legal practise at Lincoln's Inn.
Hart’s The concept of law
Hart's seminal work, The Concept of Law, revolutionised legal philosophy by providing a fresh perspective on the nature and function of law. Published in 1961, Hart challenged the prevailing positivist notion that law was solely derived from a command issued by a sovereign authority. Instead, he introduced the idea of law as a system of rules, emphasising the importance of both the rule of recognition and the internal moral principles that guide legal decision-making. Hart asserted that while legal rules can be traced back to an ultimate rule of recognition, their validity is ultimately dependent on their acceptance and internalisation by the legal community. Through his nuanced analysis, Hart illuminated the complex relationship between law, morality, and the social context in which they operate, leaving an enduring impact on legal theory.
Is it a good description?
Hart aims to give a clear definition of what is the law in the first Chapter of his book. He describes it as a system, or rules, that give guidelines for behaviour, recognised by society that applies them. To understand what distinguishes law from other social phenomena and norms, he gives the example of the comparison between the gunman who obliges, tries to coerce somebody with the threat of a gun, as opposed to a tax inspector that has the right to impose an obligation, the latter being the law. He starts from a simple definition of law, such as the one of a triangle, that breaks down a concept in small simple parts. However it is clear that a simple definition is not possible for law because of the existence of ‘difficult cases’ such as international law and primitive law that do not easily fit in usual description of legal systems lacking important key elements such a central court for example. We will see below that his solution for this is the existence of a ‘central set of elements’, the “modern municipal system’ comprising primary and secondary rules, against which the ‘difficult cases’ can be compared.
Wide and Narrow conception
Hart claims his methodology to have merits choosing a ‘wide conception of law’ as opposed to a ‘narrow’ that is natural law. His innovative contribution employs a multidimensional approach made of philosophical and analytical methodology to cover many of the most remarkable questions about law. The core of this approach is the importance of an ‘internal point of view’, the recognition and acceptance by all legal actors (the ‘officials’: judges, legislators, lawyers, citizens) through rule-following and the existence of the ‘rule of recognition’. He views law as a social phenomenon: we can understand the role and function of law if we comprehend how rules are observed, applied and enforced in society. His declared intention to create an essay in ‘descriptive sociology’ describes our ‘shared’ concept of law as social phenomenon, and he aims at delivering a ‘descriptive’ theory of law, that pays attention to the legal language and society’s internal attitude towards law.
Positivist Thought
Rules, as described above, better explains what is law that the ‘orders backed by threats’ theory (OBT) as introduced by Bentham and particularly Austin. Hart’s criticism in chapters 2, 3 and 4 of his book asserts that his ‘linguistic method’ or ‘method of linguistic philosophy’ is more powerful than just ‘commands’. According to Hart, the OBT ignores the concept of rule-following and focuses only on the coercive aspect of law, which is only a minimal aspect for Hart. For Austin, above all there is the sovereign giving orders, for Hart the law is above all, and it imposes obligations also on the ‘sovereign’ itself. The mere habit of obedience under OBT presents issues when there is a change in sovereignty and leads to uncertainty and interregnum. For Hart instead the concept of ‘sovereign’ is a set of rules, it has a ‘corporate’ nature that is not tied to any specific person, hence creates no issues with a change. OBT sees the law as a set of predictions of the likelihood of punishment from who gives an order, ignoring and lacking what Hart instead thinks as necessary: not only duty-imposing rules, but also power-conferring rules.
Primary and Secondary Rules
The union of primary and secondary rules is Hart’s main thesis, and he describes it as the ‘key to the science of jurisprudence’. He creates his own model of law as opposed to the Austinian OBT. It is called ‘modern municipal system’ which includes, as mentioned, both the idea of ‘obligation’ in the form of primary rules (implying the existence of strongly supported social rules), and also, in addition, power-conferring rules. Without the latter a legal system would only be ‘pre-legal’ and it would suffer from ‘social defects’ that are being: static, inefficient, uncertain. Hart’s secondary rules are the ‘cure’ to these defects: i) rules of change (powers of legislation cure lack of progress, i.e. ‘static’), ii) rules of adjudication (cure ‘inefficiency’ introducing courts and law enforcement, and lastly but most importantly, iii) the rule of recognition (criteria of legal validity to identify what is the law and its sources, cures ‘uncertainty’). Primary and secondary rules are the ‘central set of elements’ that constitutes law, together with legislature, courts, law enforcement institutions, and private ‘power-conferring’ rules such as contract law.
Rule of Recognition
The ’rule of recognition’ is an unwritten, implicit norm in a legal system that guides the actions and decisions of officials. It is inferred by practices of legal actors, and it may be evident in judicial decisions, legislation and other forms of legal norms. Hart makes it clear that it can be identified as a matter of fact, and this thesis is positivistic in nature: law is identified not through its moral worthiness, instead it is a blend of social acceptance, designation of authoritative sources, and internal perspective. The rule of recognition gives to law its binding force, creates and maintain its legitimacy and helps identify what is law as not all norms are law, for example a written constitution where law is described as valid if passed by the legislature. Legal officials have a shared common understanding on the use of this rule. Hart believes that the acceptance of this rule is an essential element for a legal system to ‘exist’, and it avoids confusion and uncertainty. It can, however, presents problems: why, for example, would officials have to accept the rule of recognition? What if judges would want to identify a rule as valid only if reflect moral decency, would this tear down Hart’s legal positivism where there should be no connection between law and morality? Hart’s ‘inclusive legal positivism’ would say no: legal positivism can still maintain its core tenets while acknowledging a connection between law and morality.
Is and Ought
Hart’s legal positivism, even if ‘inclusive’, distinguishes ‘is’ from ‘ought’. The validity of law does not depend on its moral content or on how much it is inspired by moral principles, instead it is subject to rules and procedures via which is created and enforced and the rule of recognition. This is clear from his book ‘the concept of law’ where he seeks to analyse the nature of law as a social phenomenon without resorting to moral considerations. Important points in Hart’s theory are, inter alia:
The ‘separation thesis’: a non-necessary connection between law and morality, separate social phenomena, with different purposes. Morality is concerned with right or wrong, good or bad. Law consists in social rules that regulate behaviour and maintain order in society.
Hart’s legal positivism takes a ‘descriptive approach’ to describe law without making any normative judgments on whether the law is just or morally right, instead he focuses on understanding the sources of law and institutions, and the way law applies to each case.
Judges nevertheless are allowed to exert discretion in making their decisions and can be influenced by morality even if law is morally neutral, and this is thanks to the ‘open texture of law’ that creates legal rules with a core and penumbra, characterised by ambiguity and flexibility. This ‘open texture’ concept has been criticised as a potential weakness of Hart’s theory as judicial discretion could lead to uncertainty and inconsistency.
Conclusion
We can conclude acknowledging that Hart’s approach to understanding the nature of law goes far beyond its predecessors in terms of breadth of issues touched upon, he looked at answering the question ‘what is law?’ from every possible angle. He did not only philosophically speculated, he also aimed to find practical solutions that could support an ideal and comprehensive modern legal system. His legal philosophical thinking might have been and still can be criticised, however it also feeds and constructively inspires the continuous and ever growing contemporary debates about the most sought-after question in legal philosophy: ‘What is the Law?’.
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