The Concept of Law by H. L. A. Hart

First published: 1961; 2d ed., 1994

Type of Philosophy: Epistemology, ethics, philosophy of law

Context

H. L. A. Hart’s The Concept of Law is a systematic treatment of central issues in legal philosophy and jurisprudence that enlivens these areas of inquiry with fresh perspectives and new ideas. Hart suggests that the work may be viewed in a number of ways. From the lawyer’s perspective, it can be regarded as an essay in analytical jurisprudence, that is, an effort to provide a general analysis of law and major legal concepts. Philosophically, Hart employs the method and style sometimes called linguistic analysis, with close attention to the definitions of and distinctions among key terms and expressions. Further, the work constitutes an essay in descriptive sociology in the sense that its task is to elucidate law as a social phenomenon. One of Hart’s major theses is that law is best understood as a method of social control related to, but distinct from, coercion and morality. Other traditional theories of law failed to pay sufficient attention to the differences, assimilating law too closely to coercion (command theories) or to morality (natural law theories).

The Command Theory of Law

Hart begins the substantive portion of the book with an extended critique of nineteenth century jurist John Austin’s command theory of law. Austin sought to analyze law in terms of the behavioral elements of commands, habits, and obedience. Law is the command of the superior (sovereign) to those who have acquired a habit of obedience (subjects). Commands are expressions of a wish that others do or refrain from some action, accompanied by a threat of sanctions for noncompliance. The sovereign is a person or group who issues commands that are obeyed and who does not habitually obey another person. This model of law as orders backed by threats, despite its power, fails to capture some salient and familiar features of modern legal systems and cannot provide a sound basis for understanding central legal notions such as authority and obligation.

Hart presents several objections to Austin’s model. First, Austin’s account is at variance with the content of laws found in developed legal systems. Many laws do not impose duties and are not enforced by sanctions but instead confer powers on individuals and groups. Examples include legal rules defining how to make a valid will or contract. Second, the plausible idea that the lawmaker may be bound by laws is absent in the command theory. Laws, unlike most commands, possess a general character, applying to legislators and ordinary citizens alike. Third, in many legal systems, customs come to have the force of law through legal recognition by courts. Austin sought to explain this by means of the implausible supposition that the sovereign’s silence constitutes a tacit command.

In addition to these criticisms, Hart offers a more fundamental challenge to Austin’s command theory, calling into question the very existence in any modern legal system of a sovereign in Austin’s sense. Hart points out that the quasi-psychological notion of a habit of obedience fails to account for the continuity of law over time and the persistence of the legal order upon the change from one sovereign to a successor. The relationship suggested by the idea of a habit of obedience is both too simple and too personal to fully accommodate the idea of a legal authority entitled to make law. Additionally, lawmaking authority in a modern state has legal limitations: Legal rules, often in constitutions, stipulate disabilities or limits on legislative authority. The division of powers between the federal government and the states and the guarantee of individual rights against the government in the U.S. Constitution provide clear examples.

The Idea of a Rule

After diagnosing the problems with the command theory, Hart proposes a “fresh start,” one giving a prominent role to the idea of a rule. He begins by making several distinctions. The first is between primary and secondary rules, invoked earlier in his attack on the command theory. He puts this idea to constructive use, with the claim that law is best understood as a union of primary and secondary rules. It is possible, Hart grants, to imagine a small, stable society that is a regime of only primary rules (rules imposing duties on the community’s members). However, for most human societies, such an arrangement would be highly inefficient. Among its defects would be uncertainty about what the rules are and how they apply, the inability to adjust to changing situations because of the static character of such rules, and the difficulties of enforcing such rules without mechanisms and procedures to detect and deal with violations. Hart argues that secondary rules (rules about primary rules) are needed to remedy these defects. They include a rule of recognition (to identify authoritatively primary rules), rules of change (to specify how to enact new rules and to repeal or modify old ones), and rules of adjudication (to establish procedures and to authorize individuals and agencies to ascertain violations of primary rules and to provide enforcement mechanisms). Although Hart characterizes the addition of these secondary rules to a regime of primary rules as a change from the prelegal to the legal, his point is conceptual rather than historical.

Another distinction emphasized by Hart is between “being obliged” and “being under an obligation.” The command theory, focusing on the coercive aspects of law, misleadingly portrays an obligation imposed by a legal rule as if it were identical to being obliged by a threat of force. In this account, legal authority is really no different from the armed person forcing individuals to hand over their money. Missing from this picture is the point of being under an obligation: Rules imposing obligations set standards of conduct and justify the imposition of coercive sanctions for breaches. The command theory’s reductionist view of obligations collapses being obligated under rules into being obliged by threat of force.

One of Hart’s aims is to provide a general descriptive account of law as a rule-governed social phenomenon. To understand rule-governed behavior, the distinction between internal and external aspects of rules must be recognized. Earlier theorists, such as Austin and the American jurist Oliver Wendell Holmes, failed to make this distinction, neglecting the internal aspect of rules. Holmes advanced the famous claim that law can be seen as a prediction of what the courts will do. This view seeks to explain law from a purely external perspective, that of the outside observer who notices behavioral regularities but misses the normative aspect of rules. An outside observer, oblivious to the internal aspect of rules, may record that many motorists stop at red lights. Although such “observed regularities” may have some predictive value in forecasting future behavior, the external viewpoint cannot provide a proper understanding of the complex role of rules in social life and the character of rule-governed behavior. People stop at red lights because there is a rule to that effect, and they criticize those who run red lights for violating the traffic rule. This distinction is important methodologically for understanding law and other rule-governed practices in human society.

Although Hart insists that the normative character of law must be recognized, this should not lead to a conflation of law and morality. In The Concept of Law, Hart reiterates his commitment to legal positivism with its separation of law and morality. For a positivist, an unjust or immoral law may still be a valid rule in a legal system. For Hart, it would depend on that legal system’s rule of recognition, the master rule used to identify valid laws that is embedded in the practice of the society’s legal officials. The Fugitive Slave Laws, though unjust, were valid laws in nineteenth century America because they were enacted and upheld by the relevant legal authorities, namely, Congress, the president, and the courts. Hart sticks to the position he took in his 1950’s debate with Harvard University’s Lon Fuller that positivism’s separation of law and morality has decided theoretical and practical advantages over the natural law theorist’s view that an unjust law is not a genuine law. Hart does, however, make several concessions, embracing a “minimal version” of natural law according to which (assuming survival as an aim) it is “naturally” necessary for any viable human society to enforce certain rules of conduct. Furthermore, he admits that there is a close connection between rule by law and formal justice (the precept of treating like cases alike and different cases differently). Laws have general application, which precludes some forms of arbitrary treatment (although Hart hastens to add that laws may still be substantively unjust and legal systems evil and oppressive).

The Role of Judges

A final major issue considered in The Concept of Law concerns the nature of adjudication. Hart attempts to steer a middle course between the formalism or “mechanical jurisprudence” often associated with British judicial practice and the “rule skepticism” defended by American legal realists in the 1920’s and 1930’s. The former sees the role of judges as finding relevant legal rules and strictly applying them to particular cases. Hart agrees with the legal realists that such a view of judicial practice is misleading, for legal rules are seldom applied in such a mechanical way nor can they be, because they are framed in general terms that are vague and “open textured.” Hart cites as an example the term “vehicle” in an ordinance prohibiting vehicles from a public park. This rule may be readily interpreted as banning cars and trucks, but it is not clear whether it excludes tricycles and skateboards. Judges must employ discretion in applying rules to such indeterminate or hard cases. Hart thinks that legal realists who regard judges as unbound by rules (“rule skeptics”) overlook how rules guide judges in clear cases. In the hard cases, Hart submits that judges do appeal to factors such as legislative purpose, consistency, and even equity and other moral and political principles. He concedes that in some hard cases, the law is so indeterminate and the other guiding factors so uncertain that judges in fact make law rather than find it.

This view of adjudication developed by Hart has been a source of continuing controversy. Legal philosopher Ronald Dworkin, Hart’s foremost critic in this regard, charges that the positivist view, which bases validity on the “pedigree” of rules, is seriously deficient. It neglects the role of principles and policies in judicial decision making. Dworkin regards the positivist attempt to sharply separate law and morality as a misrepresentation of judicial practice. Judicial discretion is constrained by rules, principles, and policies as well as the requirement that the body of law be coherent. Dworkin holds that there is always some definite “right answer” or correct decision in any legal dispute, one that best fits or represents the law’s integrity. Hart, in the postscript to the second edition of The Concept of Law, singles this out as the most important point of disagreement between Dworkin’s view of adjudication and his own. Hart acknowledges that he overemphasized the role of rules in his early work, but he reiterates his belief that his theory of law and adjudication can accommodate a more extensive place for principles and policies. Hart remains steadfast in defending much of his theory of law as originally presented, suggesting that many critics, including Dworkin, fail to appreciate the character of his study of law as a general, descriptive, analytic one.

The Concept of Law remains a landmark in philosophy of law and legal theory. Its many theses, analyses, and arguments contain significant insights about the law, a point acknowledged by even its most vigorous critics. In addition to making notable contributions to the treatment of substantive issues in legal philosophy, the work links philosophical method with legal theory and legal philosophy with other areas of philosophy such as ethics, political philosophy, philosophy of mind, and philosophy of language. Hart’s penetrating account of rules and rule-governed behavior marks a worthwhile contribution to the study of law and other related forms of social phenomena, particularly in its illustration of the way in which careful attention to ordinary thought and language can reveal the rich complexity of such behavior. His criticism of the command theory, natural law theory, and the predictive theory of law reveal fatal flaws in such theories, so much so that it is difficult to imagine their resurrection as plausible and illuminating theories of the nature of law.

Principal Ideas Advanced

•The best way to understand law is in terms of the concept of rules, particularly as the union of primary and secondary rules.

•John Austin’s classic command theory is too simple and reductionist to be an adequate theory of law.

•Law as a social phenomenon is best understood from an internal perspective, taking into account the viewpoint of those who look to the law as setting a standard of conduct.

•There is no necessary connection between law and morality, but it is reasonable to expect a considerable overlap between a society’s moral code and its legal code.

•Legal rules have an area of indeterminacy of application because they contain open-textured general terms.

Bibliography

Bayles, Michael. Hart’s Legal Philosophy. Dordrecht, Netherlands: Kluwer Academic Publishers, 1992. This careful and thorough analysis of H. L. A. Hart’s legal philosophy places Hart’s contributions in a wider context. The author is sympathetic to most of Hart’s positions, defending them against various criticisms.

Boos, Eric J. Perspectives in Jurispurdence: An Analysis of H. L. A. Hart’s Legal Theory. New York: Peter Lang, 1998. This book examines the perpetual controversy between legal positivism and natural law and explores Hart’s approach to the link between law and morality.

Devlin, Patrick. The Enforcement of Morals. London: Oxford University Press, 1965. This collection of Patrick Devlin’s papers and lectures contains a well-developed defense of legal moralism and an interesting appraisal of the complex role of criminal law.

Dworkin, Ronald. Law’s Empire. Cambridge, Mass.: Belknap Press, 1986. This work is the most comprehensive and systematic development of Dworkin’s views about the nature of law and adjudication. He continues his critique of Hart and legal positivism, and emphasizes the importance of interpretation in trying to understand law and adjudication.

Dworkin, Ronald. Taking Rights Seriously. Cambridge, Mass.: Harvard University Press, 1978. Dworkin’s first book consists of previously published major articles, emphasizing the theme of the importance of individual rights. It also includes several papers, starting with the “The Model of Rules,” in which he develops a series of criticisms of Hart’s legal positivism.

Fuller, Lon. “Positivism and Fidelity to Law: A Reply to Professor Hart.” Harvard Law Review 71(1957):630-672. Harvard law professor Lon Fuller published his reply to Hart’s Holmes Lecture in the same volume of the Harvard Law Review that contained the printed version of Hart’s lecture. Together they form the celebrated Hart-Fuller debate, referred to by one commentator as “perhaps the most interesting and illuminating exchange of views on basic issues of legal theory to appear in English in this century.”

Hacker, B. M. S., and J. Raz, eds. Law, Morality, and Society. Oxford: Clarendon Press, 1977. This excellent collection of original articles was published in honor of Hart on the occasion of his seventieth birthday. The essays all examine either Hart’s work or issues in philosophy of law that Hart discussed.

MacCormick, D. Neil. H. L. A. Hart. Stanford, Calif.: Stanford University Press, 1981. This remains the best available single study of Hart’s legal philosophy. The author is generally sympathetic to Hart’s views on the nature of law but sharply disagrees with other aspects of Hart’s theory such as the nature of legal rights.

Martin, Michael. The Legal Philosophy of H. L. A. Hart. Philadelphia, Pa.: Temple University Press, 1987. This critical appraisal of Hart’s legal philosophy examines the development of Hart’s views and Hart’s celebrated debates with Dworkin, Fuller, and Devlin.