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John T. Noonan, Jr.; THE CONCEPT OF LAW. By H. L. A. Hart. Jurisprudence and Philosophy of Law. Issue Section: This content is only available as a PDF. Hart's book 'The Concept of Law' claims to be an exercise in both analytical jurisprudence (analyzing everyday language to give an analytical account of how . T HIS ARTICLE is a critical exposition of The Concept of Law,' a book by H. L. A. Hart, Professor of Jurisprudence at the Uni- versity of Oxford. Published in
The Social Thesis asserts that law is, profoundly, a social phenomenon, and that the conditions of legal validity consist of social—that is, non-normative—facts. Law, they thought, is basically the command of the sovereign. Later legal positivists have modified this view, maintaining that social rules, and not the facts about sovereignty, constitute the grounds of law. Most contemporary legal positivists share the view that there are rules of recognition, namely, social rules or conventions which determine certain facts or events that provide the ways for the creation, modification, and annulment of legal standards. These facts, such as an act of legislation or a judicial decision, are the sources of law conventionally identified as such in each and every modern legal system. Natural lawyers deny this insight, insisting that a putative norm cannot become legally valid unless it passes a certain threshold of morality.
Secondary rules may be necessary in order to allow legislators to make changes in the primary rules if the primary rules are found to be defective or inadequate.
Secondary rules may also be necessary in order to enable courts to resolve disputes over the interpretation and application of the primary rules. The secondary rules of alegal system may thus include 1 rules of recognition, 2 rules of change, and 3 rules of adjudication.
In order for the primary rules of a legal system to function effectively, the rules must be sufficiently clear and intelligible to be understood by those individuals to whom they apply. If the primary rules are not sufficiently clear or intelligible, then there may be uncertainty about the obligations which have been imposed on individuals.
Vagueness or ambiguity in the secondary rules of a legal system may also cause uncertainty as to whether powers have been conferred on individuals in accordance with statutory requirements or may cause uncertainty as to whether legislators have the authority to change laws. Vagueness or ambiguity in the secondary rules of a legal system may also cause uncertainty as to whether courts have jurisdiction over disputes concerning the interpretation and application of laws.
Primary rules of obligation are not in themselves sufficient to establish a system of laws that can be formally recognized, changed, or adjudicated, says Hart. Primary rules must be combined with secondary rules in order to advance from the pre-legal to the legal stage of determination.
A legal system may thus be established by a union of primary and secondary rules although Hart does not claim that this union is the only valid criterion of a legal system or that a legal system must be described in these terms in order to be properly defined.
Hart distinguishes between the "external" and "internal" points of view with respect to how the rules of a legal system may be described or evaluated.
The external point of view is that of an observer who does not necessarily have to accept the rules of the legal system. The external observer may be able to evaluate the extent to which the rules of the legal system produce a regular pattern of conduct on the part of individuals to whom the rules apply.
The internal point of view, on the other hand, is that of individuals who are governed by the rules of the legal system and who accept these rules as standards of conduct. The "external" aspect of rules may be evident in the regular pattern of conduct which may occur among a group of individuals.
The "internal" aspect of rules distinguishes rules from habits, in that habits may be viewed as regular patterns of conduct but are not usually viewed as standards of conduct. The external aspect of rules may in some cases enable us to predict the conduct of individuals, but we may have to consider the 'internal' aspect of rules in order to interpret or explain the conduct of individuals.
Hart argues that the foundations of a legal system do not consist, as Austin claims, of habits of obedience to a legally unlimited sovereign, but instead consist of adherence to, or acceptance of, an ultimate rule of recognition by which the validity of any primary or secondary rule may be evaluated.
There are two minimum requirements which must be satisfied in order for a legal system to exist: 1 private citizens must generally obey the primary rules of obligation, and 2 public officials must accept the secondary rules of recognition, change, and adjudication as standards of official conduct. Moral and legal rules may overlap, because moral and legal obligation may be similar in some situations.
However, moral and legal obligation may also differ in some situations. Moral and legal rules may apply to similar aspects of conduct, such as the obligation to be honest and truthful or the obligation to respect the rights of other individuals.
However, moral rules cannot always be changed in the same way that legal rules can be changed. According to Hart, there is no necessary logical connection between the content of law and morality, and that the existence of legal rights and duties may be devoid of any moral justification. Dworkin rejects the concept of law as acceptance of conventional patterns of recognition, and describes law not merely as a descriptive concept but as an interpretive concept which combines jurisprudence and adjudication.
Hart defines legal positivism as the theory that there is no logically necessary connection between law and morality. However, he describes his own viewpoint as a "soft positivism," because he admits that rules of recognition may consider the compatibility or incompatibility of a rule with moral values as a criterion of the rules legal validity. Legal positivism may disagree with theories of natural law, which assert that civil laws must be based on moral laws in order for society to be properly governed.
Theories of natural law may also assert that there are moral laws which are universal and which are discoverable by reason. Thus, they may fail to recognize the difference between descriptive and prescriptive laws. Laws that describe physical or social phenomena may differ in form and content from laws which prescribe proper moral conduct.
Hart criticizes both formalism and rule-scepticism as methods of evaluating the importance of rules as structural elements of a legal system. Formalism may rely on a rigid adherence to general rules of conduct in order to decide which action should be performed in a particular situation. On the other hand, rule-scepticism may not rely on any general rule of conduct in order to decide which action should be performed in a particular situation. Formalism may produce such inflexibility in the rules of a legal system that the rules are not adaptable to particular cases.
Rule-scepticism may produce such uncertainty in the application of the rules of a legal system that every case has to be adjudicated. International law is described by Hart as problematic, because it may not have all of the elements of a fully-developed legal system. International law may in some cases lack secondary rules of recognition, change, and adjudication.
International legislatures may not always have the power to enforce sanctions against nations who disobey international law.
International courts may not always have jurisdiction over legal disputes between nations. International law may be disregarded by some nations who may not face any significant pressure to comply.
Nations who comply with international law must still be able to exercise their sovereignty. In any legal system, there may be cases in which existing laws are vague or indeterminate and that judicial discretion may be necessary in order to clarify existing laws in these cases. Hart also argues that by clarifying vague or indeterminate laws, judges may actually make new laws.
He explains that this argument is rejected by Ronald Dworkin, who contends that judicial discretion is not an exercise in making new laws but is a means of determining which legal principles are most consistent with existing laws and which legal principles provide the best justification for existing laws.
Dworkin says in Laws Empire that legal theory may advance from the "preinterpretive stage" in which rules of conduct are identified to the "interpretive stage" in which the justification for these rules is decided upon to the "postinterpretive stage" in which the rules of conduct are reevaluated based on what has been found to justify them. A complete legal theory must consider not only the relation between law and coercion i. Thus, Dworkin argues that a complete legal theory must address not only the question of whether the rules of a legal system are justified but the question of whether there are sufficient grounds for coercing individuals to comply with the rules of the system.
The Concept of Law by H. Home Up H.
Hart's treatise on legal philosophy, originally published in , stands on a timeline between the works of Austin in the 19th Century and the thoughts of Dworkin in the late 20th and 21st Centuries. Hart clarifies a little late in the book that his aim is not to define the term "law" so that one could determine whether a rule is actually a law or not , although in many places he does just that.
The broader purpose of the book, however, is admittedly to examine how "law" compares and contrasts with other things intertwined with what we consider "legal"defining the system of law in order to determine a way to analyze it.
The book is so titled: The Concept of Law. Hart's first step is to criticize the description of law popularized by Austin that laws are no more than a set of rules set up by a sovereign who ensures the adherance to those rules by threats. Hart manages to contradict this notion by noting that, in modern legal systems, there is something called legitimacy that can exist separate from the sovereign.
Somehow the legitimacy of laws seems to be maintained through the perpetuity of a system, through the changes in the actual ruling individuals or legislature. He also points out that some laws again pointing to modern legal systems do not necessarily bring about punishments if they are not followed, but instead describe the bounds of the legitimacy of other laws and the processes that should be used in the legal system. While Hart pokes valid holes in the theory of laws as orders backed by threats, he fails to propose anything that could adequately explain adherance to laws.
Although he notes that ideas of morality may urge adherance to laws in some cases, in others "calculations of long-term interest; disinterested interest in others; an unreflecting inherited or traditional attidude; or the mere wish to do as others do" could serve the same purpose, as he states in passing towards the end of the work Ideas of social construction and acceptance through conditioning are not explored although hinted at 55 , and the acceptance of some laws because of their economic utility are towards the end given only a glance Instead Hart falls into the rut common in similar treatises such as Hedley Bull's The Anarchical Society of description rather than explanation.
The crux of Hart's theory is that all laws are either primary laws, prescribing actions that must or must not be done; or secondary laws, prescribing how laws are made, how jurisdiction is determined, etc.
Justice is the concept that these laws are fairly and evenly applied, and morality, though related to law, is a distinct concept. The benefit of Hart's theory, if it could be called that, is not apparent. The fact he has disproved the Austinian notion of laws as order backed by threats is useful, as is shown by his analysis of international law, which in Hart's time looked less like anything that could be called "law".
Hart shows that most objections to categorizing international law as "really law" stem from a mistaken Austinian belief that there must be something analogous to a sovereign that has ultimate power over states to force compliance with laws. In reality, the formation of and adherance to many international laws have analogs in domestic laws of individual states, especially those with advanced legal systems.
Evolution of the states system and further globalization since the book has been written show these analyses to have some validity. There remains unanswered the question of why states adhere to international laws, although Hart dismisses the theory that obligations at the international level arise solely out of contractual arrangements. He also dismisses their being any international "basic norm" for want of defining what that norm is, although later regime theorists could surely take a stab at describing several such norms.
For its descriptive aspects, The Concept of Law is invaluable. The description of formalism in Chapter VII could stand on its own as an outstanding introduction to rulebased as opposed to case-based law.
Hart's work was apparently an essential step away from Austinian thought and provided the basis for other formulations such as found in Dworkin'sLaw's Empire. Perhaps it set the terms for many discussions about legal concepts, and provided new methods of analysis and discussion.
It provides appropriate terms to use when discussing what the concept of law is, but instead of providing a theory answering "why law is" or "why law is accepted", The Concept of Law seems to leave that step to others.
Notes "[I]t is not a peculiarity of complex terms like "law" and "legal system" that we are forced to recognize both clear standard cases and challengeable borderline cases.
It is now a familiar fact One "cardinal issue latent in the question 'What is law? Hart notes that some critics think that there is nothing in the rule that "binds us to do certain things and guides or justifies us in doing them", but that instead we only thinksuch a thing exists, making that binding something "an illusion even if it is a useful one.
Primary rules are rules, or laws, that govern general societal conduct. Thus, primary rules construct legal obligations and consequences when they are disobeyed. A good example of a primary rule is the law against murder; it prohibits a person from killing and attaches consequences for committing, attempting to commit, and conspiring to commit the crime.
Secondary rules confer power to create sovereignty; they also confer the power to change, modify, or enforce primary and secondary rules. Each kind of secondary rule addresses a separate one of those three issues, yet all are interdependent. Hart states that the remedy for the uncertainty of the regime of primary rules is a rule of recognition.
For a rule to be valid is to recognize it as passing all the tests provided by the rule of recognition. There are no legal systems that can be classified as pareto optimal. The next best thing is to make sure that the system does not remain at a static quality but instead is dynamic and progressive.
The remedy for the static quality of the regime of primary rules are rules of change. Rules of change range in complexity: Rules of adjudication were intended to remedy the inefficiency of its diffused social pressure.
Rules of adjudication empower individuals to make authoritative determinations of the question whether, on a particular occasion, a primary rule has been broken.
However, intermingled with who adjudicates is what laws they adjudicate. From Wikipedia, the free encyclopedia. This article is about HLA Hart. For the topic of "law", see law. This article needs additional citations for verification. Please help improve this article by adding citations to reliable sources. Unsourced material may be challenged and removed. Find sources: Hart's The Concept of Law". Enrico Pattaro, ed. Legal Philosophy in the Twentieth Century: The Common Law World. Richard Marshall interviews Andrei Marmor".
AM Magazine. Retrieved 19 September Brian Reflections on 'The Concept of Law'. Oxford University Press. The Concept of Law 2d ed.