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GPR300: JURISPRUDENCE

COURSEWORK ASSINGMENT.
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The question “what is Law?” has inspired much debate in jurisprudential circles. To
answer it requires much more than a simplistic approach focusing on just words. There is,
of course the use of analogies and “logical grammar”, and the use of words in different
contexts which would bring much confusion if close attention is not paid. A good
definition is one framed with a close eye on the nature of things; for even statements true
by definition may be said to “feel the pressure of facts”. It would require additional steps
to also encompass the intricacies in its structure, so as to give the true understanding. So
naming a thing just would not suffice. Of all the juristic ink that has flowed so as to give
depth and encompassing the analytical and philosophical debate that has not only
enriched society by its understanding of the law, but has also helped it to strive and make
better laws that adapt to changing times.

Having addressed the first pitfall that stands in the way of a holistic definition, another
one stands yet in the way. The one that I speak of is that of Essentialism. Essentialism,
which dates back Plato’s time is centered on the school of thought that every class or
group of things has an essential or fundamental nature, common to every member of the
class and that the process of defining consists in isolating and identifying this common
nature or intrinsic property. John Austin sought to define law “properly so called”.
Kelsen, on the other hand sought to identify the essential logical structure of a legal
system. It is this obsession with focusing at the “essence” of a thing that led to
Essentialism. Weldon pointed out that a definition of something like “law” is a kind of
appraisal; it is not merely arbitrary or based on prejudice, but resembles rational
judgment, one which can be supported by good reasons.1

A good definition must therefore consider an undertaking of legal activities to which the
word is usually appropriated, as well as borderline and peripheral matters that may be
different to the conventional prototype of a legal system. Customs in a tribal society or
informal controls in a small well integrated community such as the Kibbutz2. The “good”

1
Vocabulary of Politics, (pp 156, 170)
2
The Kibbutz is a collective community in Israel in which informal controls operate with sufficient
effectiveness to obviate the necessity for development of legal systems.

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definition of law should therefore encompass what can also be properly accepted as
within this sphere and exclude which is universally acceptable as not being “law” e.g. a
pact among criminals which is void ab initio. It should also take into account the
borderline cases in light of reasoned comparison.

Since what is being discussed is a highly complex matter, to shed true light requires that
we go beyond mere definition but elucidate so that the function of words may be diverse.
In Hart’s Concept of Law no definition of law is posted. In the words of John Austin,
“using sharpened awareness of words to sharpen our perception of phenomena,” this will
be what Hart calls “an essay in descriptive sociology.” It can therefore be conclusively
said that Hart’s study brought social elements into his account of the legal system. As
became apparent, the fundamental aspects of his theory relied upon social rules. Hart
formulated, “it is no sense a necessary truth that laws reproduce or satisfy certain
demands of morality, though in fact they have often done so.” Thus what is morally
wrong might still be legally right. A case in point is legalization of same sex marriages in
some countries that recognize “civil unions”. As morally repugnant as it may be to even
some of the members of that community, the law will not impose a sanction on them but
they are sure to face moral condemnation.

Law is a social phenomenon, it is a social institution, and therefore, what the law is,
depends on whether the relevant authorities recognize it as law, regardless of whether it is
good or bad. Bentham, Austin, Kelsen and Hart have all tried to attain to define law by
fitting it into a straitjacket. They have employed the use of empirical analysis. According
to Raymond Aaron, “Before philosophizing man must first live. In the earliest phase of
human adventure, it was possible, at least to explain a few simple phenomena in a
scientific manner. But a positivist philosophy – a philosophy of observation,
experimentation, analysis and determinism could not be based on these few phenomena.3
This could be said to be more or less ticking the checklist, so to speak. Their approach
involved a general criterion of a formal kind which would therefore relate to any legal

3
Main Currents in Sociological Thought 1. p54

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system4. The empirical characteristics that would be required of a system to then be

categorized as law are three fold.
(1) A definition in the sense of elucidation of meaning;
(2) A criterion for the validity of law;
(3) A general scheme for the criterion of validity of any legal system.

The Behavioural approach employed by naturalists and realists demand effectiveness as a

precondition to validity. If it is not effective, then how could it possibly be valid? For it to
be effective, it certainly must be binding on members of the society. Hart is of the
opinion that “valid laws are those that are used as guides to action, those that are regarded
as normative. Such norms are in the form of commands emanating from sovereign
authorities and are as such positive laws. The traditional positivist view is that laws are
binding when they are made in a particular way. For the Naturalist lawyer however, laws
are binding when they satisfy certain ethical standards. Social contract theorists, who
support the natural law ideology, require recognition by members of the society that the
legal system is binding on them. The behaviorist stance: laws are binding when they are
enforced. This is also known as the “Might is right” philosophy.

One of the forces of the streams of main sociological thought, Montesquieu says the
following:
“To modern minds, influenced by the philosophy of Kant and by logic as it is taught in
our universities, the word “law” has two meanings. Law is, first of all, a command of the
legislator, an order issued by a qualified authority which compels us to do this or not do
that. Let us call this first meaning the law-as-command and go on to say that it is positive
law, the law of the legislator differs from manners and customs in that it is explicitly
formulate, while the obligations or prohibitions of custom are not elaborated or codified,
nor do they generally carry the same type of official sanction.”5

Austin was willing to accept judicial law-making which was vehemently opposed by Bentham.
Austin was also of the view that, “only commands emanating from the sovereign are ‘positive
laws’”. Bentham is however not supportive of Austin’s Command theory but sees commands as
4
R. Wolheim, “Nature of Law” (1954) 2 Political Studies 128.
5
Montesquieu “The Spirit of the Laws.”

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only one of four kinds of methods through which the sovereign can enact laws” Bentham
distinguished between laws which command or prohibit (imperative laws) e.g. prohibition of
murder; and those which permit certain conduct(permissive laws) e.g. the legalization of use of
medical marijuana.

Harts’ Positivism
Hart’s theory was developed from theories propounded by Bentham and Austin, both of
whom we have looked at in the preceding part. Central to his philosophy is his assertion
that “the most prominent general feature of law at all times and places is that its existence
means certain kinds of human conduct are no longer optional but in some sense
obligatory” he claims that his theory aims to provide “an improved analysis of the
distinctive structure of a municipal legal system, and a better understanding of the
resemblances and differences between law, coercion and morality as types of social
phenomena.” The use of the word “improved seems to prove that Hart was building on
the positivists before him. Some commentators are however of the view that Hart’s is a
distinct jurisprudential character of positive law, thus baptized “modified positivism”

Hart agrees with earlier positivists, specifically John Austin & Jeremy Bentham in two
ways. First, he agrees with his analysis of the theory of law by “appreciation of the fact
that where there is law, human conduct is made in some sense non-optional or
obligatory.” Secondly by siding with Bentham in refusing a definite connection between
Law and morality, he states, “though there may be many different contingent connections
between law and morality there is no necessary conceptual connection between the
content of law and that of morality. The Separability thesis distinguishes between law and
morality. Hart pointed out, “it is no sense a necessary truth that laws reproduce or satisfy
certain demands of morality, though in fact they have often done so and thus what can
ordinarily be morally wrong, can be legally right.” Extreme positivists might argue that
the definition of law should be completely free from morality rejecting any moral
conception related to the concept of law. The contention by Hart above seem much softer
than the hardliner stance latter advanced by the likes of Faber.

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In his book The concept of law Hart seems to emphasise on the ‘social phenomena’
unlike his predecessors who ignored it. He stated that “there are certain rules of conduct
which any social organization must contain if it id to be viable. Such universally
recognized principles of conduct which have a basis in elementary truths concerning
human beings, their aims, and their natural environment and may be considered the
minimum content of Natural law. If laws and morals could not forward the minimum
purpose of survival which men associate with each other there would be no reason for
voluntarily obeying any of them.” Sometimes a good legal system must conform at
certain points to the requirement of justice and morality.

Hart also sees law as a system of rules which impose duties or obligations. Obligation
rules in Wacks’ opinion can be separated into legal rules and moral rules. In attempting to
refine the classical positivism theory, Hart distinguishes between primary rules and
secondary rules. According to him many primary rules are also social rules. Many people
will adhere for the function and success of society. Thus these social rules carry a moral
duty to observe the law. Hart is opposed to the view that such because of the moral
obligations, they are laws. Ha is of the view that these primary rules must be combined
with secondary rules which “specify the ways in which the primary rules may be
ascertained, introduced, eliminated, varied and the fact of their violation conclusively
determined. This does prove that Hart did in fact rely on social rules in the formulation of
his theory.

As pointed out by Hart there are three defects with primary rules in the simplest form of
social structure. First, that of ‘uncertainty’ over what the rules are and/or the scope of the
rules or their limit. The second defect is as to the ‘static’ character of the rule bearing in
mind that society is constantly changing. Thirdly is the inefficiency of society to exert
social pressure by which rules are maintained. These defects led Hart to propose the
secondary rules of recognition, rules of change and rules of adjudication, to supplement
the primary rules and resolve these defects.

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The defect of uncertainty should be remedied, in his opinion, by the Rule of Recognition
which will specify some feature of features possession by which a suggestive rule is
taken as a conclusive and affirmative indication that it is a rule to be supported by the
social pressure it exerts. This may be interpreted to mean some general characteristics
possessed by the primary rules such as the wording and content.

The defect of the static nature is to be remedied, according to Hart by the Rule of Change
the simplest form of which is an empowerment of a body of persons or an individual to
introduce new primary rules for the concerned group so as to update old rules. A case in
point is the Sexual Offences Bill 2006 which introduced new sexual offences which had
not previously been covered under statute law in Kenya. Hart further points out that there
will be a very close connection between rules of change and rules of recognition: for
where the former exists the latter will necessarily incorporate a reference to legislation as
an identifying feature of rules.

The defect of ‘inefficiency’ was countered by Rules of adjudication. Meaning that

individuals will be empowered to make authoritative determinations on whether on a
particular occasion, a primary rule has been broken. Again a close connection between
this rule and the “rule of recognition” for a rule that confers with jurisdiction will also be
a rule or recognition, identifying the primary rule through the judgements of the court.
This is not to be confused with legislating from the bench. According to Hart, the concept
of ‘Rules of Recognition’ is vital to the existence of any legal system.

Hart’s Theory in Analysis

Does Green get it right when he puts it, “perhaps it is not too much to say that Hart's
writings and teaching made the haphazard jumble of English jurisprudence into a real
subject.”? The last 25 years has seen a lot of literature in the form of specialized books,
journals, articles, dictionaries, handbooks, websites and conferences that have turned the
subject into a discipline. Just as much as the criticisms formed of Hart’s theory, there is
an equivalent amount of support for his works. As has been evidenced by discussions in

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the preceding section, there are three points central to Hart’s theory. Firstly, he proposed
the union of primary and secondary rules. It is submitted that, as demonstrated,
secondary rules, in particular the rules of recognition, are a social rule. Throughout Hart’s
analysis in his The Concept of Law, he had repeatedly discussed the rule of recognition
and its effects on his theory as a whole. The rules of recognition formed the second
central canon of Hart’s theory. Being a positivist Hart emphasized on the Separability
thesis. He does not reject the connection between laws and morals, but he argued that
there is no necessary connection between the two. In the light of the substantial debates
over these few points made by Hart, it will be discussed whether or not Hart’s theory is
flawed and if so, whether or not his theory overly relied on the connection between social
rules and legal rules.

Union of Primary Rules and Secondary Rules

Hart believes that law is a system of rules and accordingly, he suggested that the defects
of primary rules be remedied by the rules of recognition, rules of change and rules of
adjudication. An extensive challenge was posted by Dworkin. Dworkin has been long
known for his scathing criticisms of Hart’s theory, one of which argues that law is
different from Hart?s system of rules, rather law is based on principles. He argued that in
terms of adjudication, judges do not decide merely base on Hart’s secondary rules, rather
they decide based on the resources and answers available to them. In Dworkin’s words,
“they develop, in response to their own convictions and instincts, working theories about
the best interpretation of their responsibilities under that practice. This includes their
subjective opinions, moral factors considered, and the general society’s opinions and
their morality.” Dworkin cited the example of Riggs v Palmer to support his argument
that law is instead based on principles. The court had to decide whether or not a man who
murdered his grandfather could inherit under his grandfather’s will. While the judge
might always be bound pre-existing legal standards, those standards do not always dictate
a correct decision; and when they don’t, the judge’s decision involves the exercise of
discretion in the weak sense that it results in the creation of new legal content?. Dworkin,
however, stated that “in the case the court had expressly decided the issue either way,

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lawyers using the word ’law’ properly according to positivism would have agreed there
was no law to discover?. Instead, the court followed the principle that no one should
profit from his own wrong, so the statute of wills should be read to deny inheritance to
someone who has murdered to obtain it. As such, the idea that law is based on rules is a
fallacy, it is instead based on principles as Dworkin suggested. Dworkin argues that
unlike rules which only necessitate certain outcomes, principles only suggest such
outcomes.

To remedy the problem in Hart’s theory, Dworkin proposed his view of law as integrity.
This concept is a legislative principle, which asks lawmakers to try to make the total set
of laws morally coherent, and an adjudicative principle, which instructs that the law be
seen as coherent in that way, so far as possible. It is thus clear that Hart has neglected the
important aspects of which the law operates on in reality, where Dworkin’s principles
arguably apply. Hart’s theory also lacks the coherence pointed out in Dworkin’s
suggestion.
Much criticism that has come Hart’s way, perhaps the strongest was an attack on his
Rules of recognition. It is arguably the strongest point made in his theory. However, it is
also this concept which was heavily debated by not only non-positivists, but as well as
positivists including his disciple, Joseph Raz. Raz, a disciple of Hart, advocated for the
sources thesis which proposes that “all law is sourced based whereby the existence and
the content of the law can be identified by referring only to social facts. To this, Raz
stated that his sources thesis, which is stronger than Hart’s, provides public ascertainable
standards by which members of the society are held to be bound so that they cannot
excuse non-conformity by challenging the justification of the standard. The application of
Raz’s sources thesis will also gives the court the discretion to apply moral considerations
when required. The Concept of Law received bad reviews but has been rescued by later
interpreters such as Raz.

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Law and Morality

It would be insufficient to examine the question of what law is without touching on the
debate of law and morality. The debate over the relationship of law and morality is a
classic one in the study of jurisprudence. On one hand, positivists believe that law and
oral are separated. Naturalists, on the other hand, argue a close connection between law
and morality. Hart took the middle line. Whereas some systems such, as in the United
States, the ultimate criteria of legal validity explicitly incorporate principles of justice or
substantive moral values; in other systems, as in England, where there are no formal
restrictions on the competence of the supreme legislature, its legislation may yet no less
scrupulously conform to justice or morality. No positivist could deny that these are facts,
or that the stability the legal systems depend in part upon such types of correspondence
with morals. If this is what is meant by the necessary connection of law and morals, its
existence should be conceded.

Hart remained supportive to his theory, stating in his postscript to The Concept of Law in
a reply to Dworkin, that the existence and content of the law can be identified by
reference to the social sources of the law (e.g. legislation, judicial decisions, and social
customs) without reference to morality. In this sense, it is submitted that Dworkin is
again right. Hart again left out on the crucial elements of law in reality. Unlike Hart’s
suggestion that there is no necessary link between law and morality, there should be a
link between law and morality as political decisions are influenced by the morality of the
general society and thus laws, which are results of political decisions, have necessary
connection with morals.

Conclusion
As demonstrated, there are many debates over the correctness of Hart’s account of the
fundamental aspects the legal system. On one hand, Tamanaha argued that few would
agree that their achievements in jurisprudence is due to Hart’s work as, despite its
extraordinary success in other respects, his analysis contains debilitating, though perhaps
hidden, limitations. These limitations, I believed, were substantially exposed in this

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essay. The three central elements of Hart’s theory were, with the support of various
academic arguments, arguably flawed in one way or another. Both non-positivists and
positivists believe that Hart’s theory needs to be refined. Even a self-proclaimed Hart’s
fan Campbell was cited as stating, “Jurisprudence is too obsessed with Hart and that it
ought to concentrate more on empirical answers to empirical questions, building on the
work of sociologists.” On the other hand, however, many have stood out to defend Hart’s
theory.

Lyons thinks that Hart has left challenging projects for those who work in the territory
that he so ably and inspiringly charted. Law owes a huge amount to Herbert Hart’s
Concept of Law for providing a remarkable start on the study of jurisprudence. Hart’s
theory thus still provides us a great insight into the study of jurisprudence and gives more
than a teaspoon answer to the question “what is law?”

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BIBLIOGRAPHY
1. H.L.A HART: The Concept of Law. Oxford University Press 1961
2. R.S BHALLA: Concepts of Jurisprudence. Nairobi University Press. 1990
3. creativecommons.org
4. Class notes.

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