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

With the last post of the series we will revise Hart's understanding of the relationship between law and morality, positivism and naturalism.

 For the previous posts refer to:

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

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

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

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

The relationship between law and morality

The relationship between law and justice 

Hart notes that there is long-standing distinction between various types of justice: distributive vs. corrective justice. Distributive justice is concerned with the background framework for transactions, while corrective justice focuses on specific occurrences. Distributive justice focuses on the individual vs. the collective, while corrective justice focuses on individual vs. individual.

In other words, distributive justice is about how we should allocate the burdens and benefits of social cooperation, while corrective justice is about how we should regulate and maintain the relations between individuals.

 

Substantive vs. formal or procedural or administrative justice. Substantive justice focuses on the outcome of particular cases, e.g. whether the outcome of the case is just under applicable moral standards. Formal justice focuses on principles of implementation, e.g. principles such as like cases should be treated alike.

 

The relationship between law and morality

Hart begins by noting some characteristics of morality and how these sometimes differ from the characteristics of law

a)      moral requirements always relate to important matters (moral standards restrict strong passions; social pressure is applied not only to comply with moral standards but also to teach them to others; without compliance far-reaching and distasteful changes would occur in the lives of individuals)

b)      moral rules evolve gradually, through slow decay or organic growth, they cannot be changed deliberately or abruptly by human fiat. In other words, unlike law, there are no rules of change associated with morality

c)      honourable intentions (including reasonable care) are always an excuse in the realm of morality, and moral blame attaches only to voluntary acts

d)     exhortation rather than force is the typical means of enforcing moral norms

e)      conformance is encouraged by appeal to the intrinsic value of compliance rather than the consequences of breach (e.g. punishment)

f)       there is no generally accepted rule of recognition for determining what the moral rules are

g)      unlike law, morality consists solely of primary rules that are either accepted by each individual or they are not 

 

Positivism and the minimum content of natural law

Legal Positivism is the simple contention that it is not necessary that laws reproduce or satisfy certain demands of morality, though in fact they have often done so.

No Legal Positivist claims that law cannot have moral content or that there is no moral significance to compliance with the rule of law but Legal Positivists deny that this must always be true.

Hart is an Inclusive Legal Positivist. 

 

There are four possible ways that the word "moral" can be used:

a)      to distinguish the moral from the immoral—i.e. evil. Legal positivists would say that law does not have to be morally commendable and can be wicked, whereas a natural law theorist would say that a wicked law is not law

b)      to distinguish moral from factual. This is the point of debate between Hart and Dworkin. Dworkin says the inquiry into what the law is a moral inquiry but Legal Positivists say that the process of law ascertainment can be purely factual as well as partially or wholly moral

c)      to distinguish moral from prudential: a moral decision is one that focuses on the interests of persons other than the decision-maker. A prudential decision focuses on the interests of the decision-maker. Positivists say that legal systems can be either prudential or moral, even though prudential systems might be pernicious

d)     to distinguish moral from amoral or non-moral. Something is non-moral if it is not subject to moral evaluation. A decision can be non-moral if it has no non-trivial impact on someone other than the decision-maker

 

While legal positivists deny any necessary connection between law and morality in the three ways set forth above, no legal positivist contends that law is non-moral.

The minimum content of natural law can be derived from these basic facts about human beings and their nature:

1.      approximate physical equality

2.      human vulnerability

3.      limited altruism and limited aggression

4.      limited resources

5.      limited understanding and strength of will

Given these basic facts about human beings and their nature, certain basic prohibitions are necessary for society to be viable:

a)      rules restricting physical violence

b)      rules requiring mutual forbearance and compromise

c)      rules protecting property and enforcing contracts

d)     rules imposing sanctions to ensure that those who voluntarily comply shall not be sacrificed to those who do not

These basic prohibitions coincide with moral prohibitions, so the two do converge and therefore any viable legal system will also have a basic moral core.

The minimum requirements of procedural law 

The minimum requirements of procedural law (sometimes called principles of legality) include:

1.      generality

2.      clarity

3.      publicity

4.      prospectivity

5.      consistency in application

Because there is a high degree of correlation between these procedural requirements and the principles of justice, this leads some people to contend law also has a procedural as well as a substantive moral core. But Hart says these procedural principles are not principles of morality, but principles of efficiency, needed to make any effort at social control effective.

 

The moral obligation to obey the law

Another potential front on which to find a connection between law and morality is with regard to the moral obligation to obey the law. There are two types of moral reasons for acting: a) obligatory—i.e. binding in the sense that in the absence of more weighty counter-veiling moral reason a failure to act is morally wrong; b) supererogatory—i.e. action is morally desirable but not morally required.

 

Law and morality in adjudication

Positivism is also attacked on the grounds that it fails to accurately describe what judges do when they decide cases in the penumbra. I.e. rather than simply mechanically apply the law, judges create the law as they think it ought to be, and this shows there is no separation between law and morals.

This is the primary argument made against Hart by Ronald Dworkin. But deciding penumbral cases according to what the law ought to be does not mean that a judge must apply a moral standard even though he may do so, for there are other criteria beside moral criteria the judge may apply in deciding what the law "ought" to be. So once again, while judges may apply moral criteria in exercising their discretion there is no conceptual reason why they must do so, so Hart denies that that there is any necessary connection between law and morality here either.

Hart's positive argument for separating law and morals 

The goal of legal positivism is to distinguish between what the law is and what it ought to be. Confusing these two separate questions creates two separate problems: a) it leads to anarchy in the sense that it encourages people to believe that a law which is not what it ought to be is not law and therefore may be disregarded; b) it stifles criticism of the law because it suggests that if something is the law than it is what it ought to be by definition.

Thus if the question of law and morals is not separated, there is the danger on the one hand that law will lose its authority because of a divergence of opinion on what the law ought to be and on the other hand escape criticism because the question of what is moral will be supplanted by the question of what is law.

BOOK: Sovereignty Conflicts and International Law and Politics: A Distributive Justice Issue

Sovereignty Conflicts and International Law and Politics

A Distributive Justice Issue

By Jorge E. Núñez

About the Book

Many conflicts throughout the world can be characterised as sovereignty conflicts in which two States claim exclusive sovereign rights for different reasons over the same piece of land. It is increasingly clear that the available remedies have been less than successful in many of these cases, and that a peaceful and definitive solution is needed. This book proposes a fair and just way of dealing with certain sovereignty conflicts. Drawing on the work of John Rawls in A Theory of Justice this book considers how distributive justice theories can be in tune with the concept of sovereignty and explores the possibility of a solution for sovereignty conflicts based on Rawlsian methodology. Jorge E. Núñez explores a solution of egalitarian shared sovereignty, evaluating what sorts of institutions and arrangements could, and would, best realise shared sovereignty, and how it might be applied to territory, population, government and law.

Routledge PREORDER

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.

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

Our last post introduced very briefly some of the key authors in recent(ish in some cases) jurisprudence-i.e. legal theory and political theory.

Jurisprudence: key authors

H.L.A. Hart was an English legal and political philosopher, one of the main figures in legal and political sciences whose works are still being discussed.

In the following lines, a very succinct structure of his masterpiece The Concept of Law to guide the reader. In the weeks to come, the posts will introduce each section in more detail.

The Concept of Law (CoL)

What is Law? CoL 1-6. 

            •           Three persistent questions about the nature of law. CoL 6-13.

            a.         what is the relationship between law and coercion?

            b.         what is the relationship between law and morality?

            c.         what is the relationship between law and rules?

  Hart v. Austin.

            •           "We shall follow Austin in an attempt to build up from it the idea of law. We shall not, however, hope, as Austin did, for success, but rather to learn from our failure."  CoL 20.

            •           "General orders backed by threats given by one habitually obeyed" (Austin, summarised by Hart, CoL 24).

            •           "There are important classes of law where this analogy with orders backed by threats altogether fails."  CoL 27.

            •           "Law without sanctions is perfectly conceivable." CoL 38.

            •           Austin’s model does not account for the fact that lawmakers are bound by the laws they make. CoL 42-44.

            •           Unlike the orders of gunmen, laws typically apply to those who enact them and not merely to others. CoL 79.

            •           Austin's model fails to explain the continuity of obedience though the transition from one sovereign to another. “it is characteristic of a legal system…to secure the uninterrupted continuity of law-making power.”  CoL 53-54.

            •           Austin's model also fails to account for the persistence of laws enacted long ago. "How can law made by an earlier legislator, long dead, still, be law for a society that cannot be said to habitually obey him?" CoL 62. "rules…which may in a sense be timeless." CoL 62.

            •           See CoL 70-71 and 79 for a summary of the problems Hart sees in Austin’s conception of sovereignty and overall theory, respectively.

Being obliged and having an obligation. 

•            Hart distinguishes "being obliged" from "having an obligation". CoL 82-83.

            •           "Being obliged" means being compelled to do or forbear doing a certain act from fear of punishment. "Having an obligation" means being required to do or forbear doing something by an authoritative set of norms.

Primary rules and secondary rules. 

•        Hart distinguishes between: primary rules and secondary rules. CoL 27-33 and 94-97.

            •           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.

            •           Secondary rules relate to other rules, either primary or secondary, and are power-conferring rules. 

            •           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.

•                CoL 100-110; in partic. 107. For a reply to Dworkin see CoL 263.

            •           "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." CoL 107.

 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.

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

            •           Reply to Dworkin. CoL 272-273.

  The relationship between law and morality. 

•                   CoL Chs. VIII and IX.

            •           Positivism and the minimum content of natural law. See in partic. CoL 194-197.

   Rule of law. CoL 206.