HLA Hart and The Concept of Law [Part 2 of 3]

Hart prepares the ground for his own theory of law by examining the failures of an earlier (19th century) theory of law-i.e. John Austin.

Austin’s theory of law was very simple, perhaps even simplistic.He proposed that law is (or laws are) the commands of a sovereign. Hart systematically dismantled this definition of law. He showed that laws are not commands and legal systems are not based on what Austin called sovereigns. 

 

Jurisprudence: key authors in legal theory and political theory (a nutshell)

H.L.A. Hart and The Concept of Law (VERY briefly)

 

We have already seen Hart's analysis on Austin's command model of the law. Thereafter, Hart's criticisms with regards Austin's theory.

 

HLA Hart and The Concept of Law [Part 1 of 3]

Now it is time to review Hart's additions, amendments, 'improvements' to legal theory.

Primary rules and secondary rules

Hart distinguishes between:

a)                       primary rules relate to people's conduct and are generally duty-imposing rules. They  require people to do or to abstain from doing certain acts or omissions. e.g. don’t commit murder,.

b)                       secondary rules relate to other rules, either primary or secondary, and are power-conferring rules. These rules describe how other rules can be created or modified, and belong to what Hohfeld calls second order jural relations. 

Secondary rules are necessary to reduce uncertainty as to what primary rules are in force. They are also necessary if a legal system is to be dynamic rather than static, for there must be a mechanism by which primary rules and entitlements can be changed quickly and deliberately otherwise the law will become stagnant. 

There are three types of secondary rules: a) rule of recognition provides for authoritative ascertainment of what the other rules are; b) rules of change confer public power to modify existing rules and private power to modify existing entitlements; c) rules of adjudication allow the authoritative ascertainment of rule violations and the imposition of authoritative sanctions.

Rule of recognition

The sense in which the rule of recognition is the ultimate rule of a system is best understood if we follow a very familiar chain of legal reasoning.  If the question is raised whether some suggested rule if legally valid, we must, in order to answer the question, use a criterion of validity provided by some other rule.  Is this purported by-law of the Oxfordshire County Council valid?  Yes: because it was made in exercise of the powers conferred, and in accordance with the procedure specified, by a statutory order made by the Minister of Health…There may be no practical need to go further; but there is a standing possibility of doing so.  We may query the validity of the statutory order and assess its validity in terms of the statute empowering the minister to make such orders, Finally…we are brought to a stop…for we have reached a rule which, like the… statutory order and the statute provides criteria for the assessment of the validity of other rules; but it is unlike them in that there is no rule providing criteria for the assessment of its own validity” CoL 107.

The rule of recognition is a single rule containing the over-arching set of criteria to which officials adhere when engaged in the activity of law ascertainment. It is the fundamental rule that states what a valid rule is and the existence of such a rule is the fundamental component of Hart’s concept of law. The existence of such a rule is also purely a question of fact: you determine its existence by simply looking at the behaviour of the officials who ascertain the rules; if most officials accept a certain rule as the rule of recognition, then that is the rule of recognition. So unlike other rules, the rule of recognition can never be valid or invalid—it can only be accepted or not accepted

Hart’s concept of law

In order to have a legal system, it is necessary that most officials accept the rule of recognition and the rules identified thereby. All that is required by citizens is simple obedience, although acceptance is desirable. Moreover, the two necessary and sufficient conditions for the existence of a legal system (in its central case) are primary rules which citizens generally (but not necessarily universally) obey, and secondary rules of recognition, change, and adjudication which official generally (but not necessarily universally) accept.

What is acceptance?

Hart distinguishes between obedience and acceptance: a) obedience is mere compliance and does not necessarily entail commitment. Mere obedience means you need only have an external perspective, either moderate or extreme although moderate is more likely. b) acceptance is compliance with commitment. Commitment entails the adoption of the critical reflective attitude and the internal perspective. 

Adjudication

There is a limit, inherent in the nature of language, to the guidance which general language can provide…Natural languages like English are…irreducibly open-textured (CoL 126…128)

Inability to anticipate brings with it a relative indeterminacy of aim. (CoL 128)

Because of the vagueness and ambiguity of language legal norms will necessarily have an open texture. And because of the open texture of language, there will be a core of settledness and a penumbra of unsettledness in every legal rule. This is true even of the rule of recognition.

Hard cases involve the penumbra of unsettledness, while easy cases involve the core of settledness

Even within the area of open texture, rules still provide standards determinate enough to limit though not exclude judicial discretion (see CoL, p. 147).

One way to view Dworkin’s theory of constructive interpretation is as an attempt to explain how courts do and should fulfill what Hart characterises as their creative function, although Dworkin makes much grander claims for his theory himself.

Hart distinguishes between "finality" and "infallibility". Infallibility exits when discretion is the rule—i.e. when the rule is that the law is whatever some official says it is. Finality exists where an official has discretion in applying a rule within certain specified criteria—in this case the official's decision may be final but it is not infallible for it can be mistaken.

Next time the last Chapters from HLA Hart's The Concept of Law.

HLA Hart and The Concept of Law [Part 1 of 3]

Our last two posts introduced very briefly some of the key authors in recent(ish in some cases) jurisprudence-i.e. legal theory and political theory. The first one focused our attention on HLA Hart.

Jurisprudence: Key Authors

HLA Hart and The Concept of Law (very briefly)

HLA Hart

Very Brief Biography

Herberet Lionel Adolphus Hart—H.L.A. Hart—was born in 1907 and began his career as a barrister, practicing law in London for eight or nine years

He then was a Fellow and Tutor in Philosophy at New College, Oxford from 1945-1952, then University Professor of Jurisprudence at Oxford until 1968, and then Principal of Brasenose College, Oxford until he retired in 1978, although he remained quite active until his death in 1992.

Ronald Dworkin, who we will also read in this course, was a student of Hart’s, and eventually succeeded Hart as Professor of Jurisprudence at Oxford, although Dworkin is now Professor of Jurisprudence at University College London.

The Concept of Law

It was published in 1961 and which is considered a modern classic in legal theory. Just before his death, Hart added a postscript to The Concept of Law to respond to some of the criticisms leveled against the book by Dworkin.

In The Concept of Law, Hart not only addresses the question “what is Law,” he also discusses the role judges play in creating and interpreting the law and examines the connection between law and morality.

The following video introduces The Concept of Law, Persistent Questions, and Austin-Hart key differences.

Persistent questions

Hart begins by noting that there are three persistent questions about the nature of law:

                                                            a)      First, what is the relationship between law and coercion?

1.      the most prominent feature of law in all places and in all times is that it makes certain kinds of human conduct no longer optional, but in some sense obligatory

2.      this has led some theorists (notably John Austin) to characterise law as “orders backed by threats,” and Austin’s view has had a great influence on much of the science of jurisprudence

3.      Hart concedes that there is some truth to this view, but he considers it overly simplistic, and therefore tells us that one of his tasks will be to examine more precisely the ways in which law and legal obligation differ from and are related to “orders backed by threats”

                                                            b)      The second persistent question about the nature of law that Hart tells us he plans to examine is the relationship between law and morality

1.      law and morality clearly share a certain vocabulary—there are both legal and moral rights, legal and moral duties, and morality also makes certain forms of human conduct no longer optional but in some sense obligatory

2.      there is also a great deal of coincidence between the types of conduct that are subject to moral prohibitions and the types of conduct that are subject to legal prohibitions—murder and most other forms of violence, theft, and most instances of breach of promise, for example, are all prohibited by both legal and moral rules in every society

3.      this as led some to argue that law is simply a branch of morality called justice

4.      yet we are also prepared to criticise law as unjust, and to argue that unjust laws should not be obeyed, so clearly the relationship is more complicated than this—justice is something both inside and outside law, not coextensive with it, it is a standard against which law may be evaluated, and a more precise statement of the relationship between the two needs to be specified

                                                            c)      And finally, the third persistent question about the nature of law that Hart plans to examine is the nature and status of rules

1.      for example, some rules tell us how to behave and other rules tell us what we must do to give effect to our wishes (e.g. how to make a will), and this is a distinction that needs to explored and explained

2.      there is also a distinction between rule-obeying behaviour and habitual behavior that needs to be examined and explained

3.      and finally, there is the question of what courts are doing when they purport to apply rules

For more details about the above points refer to the link below:

HLA Hart COL: Intro., Persistent Questions

Hart vs Austin

Hart prepares the ground for his own theory of law by examining the failures of an earlier (19^th century) theory of law, that of John Austin.

Austin’s theory of law was very simple, perhaps even simplistic.  He proposed that law is (or laws are) the commands of a sovereign.  Hart systematically dismantled this definition of law.  He showed that laws are not commands and the legal systems are not based on what Austin called sovereigns.  

Austin's command model of the law.

Austin (1790-1859) argued that law is simply a set of imperatives or commands or orders issued by a sovereign and backed by threats. Hart concedes this model has been extremely influential on jurisprudence, but he notes that the “gunman analogy” cannot be taken too literally—it must be qualified in a number of ways if it is to capture certain features that are present in our concept of a legal system 

a)      first, for a legal system to exist, the commands must be general. in two ways

b)      second, the commands must also be durable, meaning they have standing force over time.

c)      third, it must be generally believed that the threats are likely to be implemented in the event of disobedience.

d)     fourth, the law must be generally and habitually obeyed. 

e)      and finally, the commands must emanate from a source that is not itself subject to and does not itself habitually obey some other source of command. 

Hart refines Austin’s statement of the command model. A legal system under Austin's model exists wherever there are general orders backed by threats that are given by a sovereign who is habitually obeyed and habitually obeys no one.

Note, however, that the sovereign referred to in the model need not be a particular individual—the claim is simply that wherever there is law, there is ultimately to be found latent beneath the variety of political forms, in a democracy as much as an absolute monarchy, this simple relationship between subjects or citizens rendering habitual obedience and a sovereign person or entity which renders habitual obedience to no one.

Whether a legal system exists under this model is purely a question of fact. In other words, all these various characteristics either exist or not as an empirical matter, and while some of them may be a bit vague, it should be theoretically possible to determine as a matter of fact whether the necessary features are present.

But this is not Hart’s model or concept of law—Hart is merely trying to make the strongest case possible for the command model, and once he does so, show that even this refined version has problems that cannot be corrected merely by making adjustments to the model.

For more details about "Hart vs Austin" refer to the link below:

Hart vs Austin

Next time Chapters 5 and ff. HLA Hart's The Concept of Law.