H.L.A HARTS CONCEPT OF LAW AND H. KELSENS PURE THEORY OF LAW: AN APT CONTRADISTINCTION BY VUSUMUZI M.

I BHEBHE This essay will begin by discussing Kelsens Pure Theory of Law and its criticisms. It will then discuss HLA Harts Concept of Law as well as its criticisms. The essay will also distinguish between Kelsens Pure Theory of law and Harts Concept of law. The essay will make a judgment as to which of the two philosophers makes a more realistic contribution to legal jurisprudence as reflected in modern social legal system. Hans Kelsen (1881-1973) is regarded as one of the most important legal scholars of the twentieth century who was influenced by Kant. Hebert Lionel Adolphus Hart (1907-1992) was a British philosopher who was influenced by Kelsen though he departed from him in several respects which will be discussed infra. It must be established in limine that both Kelsen and Hart are positivists meaning they both separate law from morality which shall also be elucidated infra. Kelsens Pure Theory of law is a theory of positive law; it is concerned with the accurate definition of what the law is rather than what it ought to be. 1 It is a pure theory in that it is solely concerned with that part of knowledge which deals with the law excluding from such knowledge everything which does not strictly belong to the subject matter law. 2 It therefore endeavors to free the law from all elements which Kelsen referred to as foreign elements such as morality. This is not of course to question the requirement that law ought to be moral but what is questioned is simply the view that law as such is part of morals and that every law is in some sense and some measure moral.3 It is therefore clear that the Pure Theory of law seeks to define clearly its objects of knowledge and it s autonomy has been endangered by the prevailing syncretism of methods.4 This syncretism or combination of jurisprudence with other disciplines will lead the law to disappear into natural science. Kelsen therefore sees the Pure Theory of Law as a solution to avoid the disappearance of the law; the theory does so by distinguishing the law in the plainest possible manner from nature.5

MDA Freeman (2001) Lloyds Introduction to Jurisprudence 7(ed) p 276.

2 3

Ibid. Ibid p 278. 4 Ibid p 277. 5 Ibid.

The Pure Theory of Law separates the concept of the legal completely from that of moral norm and establishes the law as a specific system independent of the moral law.6 Natural law links a certain circumstance to another as cause to effect whilst the legal rule links the legal condition to the legal consequence by imputation.7 This is the special and peculiar principle of law, its expression is the ought. An example of a legal rule says, If A is, then B ought to be whilst causality would be expressed as follows, If A is, then B must be. It is therefore clear that the connection in a legal rule is not that of cause and effect but the punishment follows always and invariably on the delict even when in fact for some reason it fails to be executed.8 This means that the legal norm is not concerned with whether or not sanctions occur but any legal norm must describe a sanction for it to be regarded as such.9 The difficulty about distinguishing the law from nature is that law or what is generally called law belongs with at least a part of its being to nature and seems to have natural existence.10 Examples of conditions which are called law include a parliamentary ruling and a judicial sentence. There are two elements to these conditions which are (i) an external process which is generally human behavior and in every case is causally determined (ii) the significance immanent in the conduct and this becomes legal matter.11 An example is where people meet together in a hall, make speeches, some rise from their seats others remain seated that is the external process, its meaning is that a law has been passed.12 Kelsens Pure Theory of Law aims to describe law as a hierarchy of norms which are also binding norms whilst at the same time refusing to evaluate those norms.13 Central to the Pure Theory of law is the basic norm or (Grundnorm).14 The basic norm constitutes the unity in diversity of all the norms which make up the legal system.15 The basic norm is therefore a sovereign principle of validity.16 The basic norm is presupposed to be valid. The whole function

MDA Freeman (2001) Lloyds Introduction to Jurisprudence 7(ed) p 278.

7 8

Ibid. Ibid. 9 Ibid. 10 Ibid 277. 11 Ibid. 12 Ibid. 13 Anonymous Stanford Encyclopedia of Philosophy http//www.plato.stanford.edu
14 15

Accessed 12 October 2013.

Ibid. MDA Freeman (2001) Lloyds Introduction to Jurisprudence 7(ed) p 279. 16 MDA Freeman (2001) Lloyds Introduction to Jurisprudence 7(ed) p 279.

of the basic norm is to confer law-creating power on the act of the first legislator and on all the other acts based on the first act.17 The law or legal order constitutes a multiplicity of norms where validity can be traced back to its final source in a single norm (Grundnorm).18 It is therefore imperative at this juncture to distinguish between legal and moral norms. Moral norms are valid by virtue of their content and can be derived from the basic norm by operation of thought. With legal norms, the case is different. A norm becomes a legal norm only because it has been constituted in a particular fashion, born of a definite procedure and a definite rule.19 Kelsen further states that every single norm loses its validity when the total legal order to which it belongs loses its efficacy as a whole.20 The efficacy of the entire legal order is a necessary condition for the validity of every single norm of the order. 21 The efficacy of the total legal order is a condition not the reason for the validity of its constituent norms. A basic norm may change where there is a successful revolution, once this happens a new basic norm is presupposed and it binds the community. Law is therefore only valid as positive law that is statute (constituted) law. The individual norms of the legal system are not to be derived from the basic norm by a process of logical deduction; they must be constituted by an act of will.22 If we trace back a single legal norm, we do so by showing that the procedure by which it was set conformed to the requirements of the basic norm. Harts concept of law eschews the definition of what law is. 23 For Hart the legal system is a system of social rules. These rules are social in that they (i) regulate the conduct of members of societies and (ii) derive from human social practices.24 Harts concept of law focused on the fact that law is a system of rules as opposed to a command. Hart objected to Austins command theory on grounds that it failed to encompass the variety of laws. 25 He stated that not all laws may be regarded as coercive orders because some laws may confer powers or privileges rather than impose duties or obligations on them. Hart defines legal positivism as the theory that there is no logically necessary connection between law and morality. However he describes his own

17 18 19

Ibid. Ibid. Ibid. 20 Ibid. 21 Ibid. 22 Ibid. 23 Ibid p335. 24 Ibid. 25 Ibid.

viewpoint as soft positivism because he admits that rules of recognition may consider the compatibility of a rule with moral values as a criterion of the rules legal validity. Harts theory distinguishes between primary rules and secondary rules. Primary rules are duty imposing rules such as the rules of criminal law or the law of tort. Secondary rules are an addition to primary rules and they specify the way in which primary rules may be ascertained, introduced, varied or eliminated. In other words they are power conferring rules such as the law that facilitates the making of contracts, wills, trusts and marriages or which lay down rules governing the composition and powers of courts in various ways to the primary ones. According to Hart there are three kinds of secondary rules (i) Rules of adjudication which confer competence on officials to pass judgments in cases of alleged wrongs and also to enforce the law (ii) Rules of change which regulate the process of change by conferring the power to enact legislation in accordance with specified procedures (iii) Rule of recognition which determines the criteria which governs the validity of the rules of the system. According to Hart there are two minimum conditions necessary and sufficient for the existence of a legal system. The first condition has to be fulfilled by private citizens and they may obey for any reason those rules of behavior which are valid according to the systems ultimate criteria of validity. The second condition must be fulfilled by the officials of the system and they must regard the secondary rules as binding upon themselves and private persons. The rules of recognition specifying criteria of legal validity and its rules of change and adjudication must be effectively accepted as common public standards of official behavior by its officials. In a system with a basic rule of recognition we can say before a rule is actually made that it will be valid if it conforms to the requirements of the rule of recognition. Hart sees some good in natural law, he claims that if society is not to be a suicide club, the legal orderings of human social communities must naturally embody a certain number of basic prohibitions that he calls a minimum content of natural law. This shows that there is an overlap between law and morality. Hart is also of the view that normativity hinges on human attitudes to human action. Law d oes not solely depend on external pressures which are brought to bear on human beings but also on the internal point of view that such beings take towards rules conceived as imposing obligations. An internal point of view is a critical reflective attitude to certain patterns of behavior or a common standard and that this should display itself in criticism (including self criticism). In the
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case of a society with primary rules only, it is necessary for its members not only to obey those rules but also consciously view them as common standards of behavior, violations of which are to be criticized, such criticism being regarded as legitimate both by the offender and other members. The most obvious difference between Kelsen and Hart is that of methodology. Harts analysis builds on close attention to actual practices and how they are perceived by their participants and linguistic usage. On the other side Kelsen offers a logical analysis of law and of normative thinking in general. While both Kelsen and Hart emphasized the normative aspect of law in response to more reductive approaches, their notion of the normative differed. Harts view of the normative reduced it to a combination of certain type of social facts while Kelsen resisted any reduction of normative to facts. This means that Kelsens theory tended to be more abstract and appropriate for his pure theory. Kelsen and Hart differed on their understanding of validity of a legal system. Hart rejected Kelsens theory of the basic norm. He claims there is a flaw in asking whether the basic norm is valid or not. Hart rejects the question itself as meaningless. He claims the rule of recognition provides the ultimate criterion of legal validity but is itself neither valid nor invalid. According to him it makes no sense to ask the question of Whether the meter-bar in Paris is really a meter long. Further, Hart sees the rule of recognition as a luxury found in advanced social systems unlike Kelsen who saw the basic norm as an essential presupposition of all legal systems. Harts introduction of the open texture of rules is a recognition that legal rules cannot be expected to provide for every factual situation that may arise. Hart was clear that a judge could use moral standards in legislating in gaps in legal rules but that it did not follow from this that these standards were already there in the rules for the judges to find them. Dworkin criticizes Hart by maintaining that judges do not have a strong discretion, believing that even in hard cases there is one right answer. Kelsen argued that legal norms necessarily come in systems therefore there are no free-floating legal norms. He stated that (i) Every two norms that ultimately derive their validity from one basic norm belong to the same legal system (ii) All legal norms of a given legal system ultimately derive their validity from one basic norm. Joseph Raz argued that the two postulates are inaccurate in that two norms can derive their validity from the basic norm but fail to belong to the same system for example in the case of orderly secession
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whereby a new legal system is created by the order authorizing another. Even if Kelsen erred about the details of the unity of a legal system, his main insight of the unity of a legal system remains true in that law is essentially systematic. Lastly, Hart is a theorist that makes a more realistic contribution to legal jurisprudence as reflected in modern social legal system. Hart understands that the law cannot just be pure as Kelsen suggested but there is always an overlap with morality. For Hart the legal system is a system of social rules in that the rules regulate members of the society and derive from human practices. Indeed law is not morality, Hart understands this, but he also acknowledges the fact that there is an overlap between law and morality hence in the majority of cases when laws are passed, they comply with the moral principles of that society for example in Zimbabwe, and homosexuality is prohibited because our society does not embrace that. Hart also stated that judges play a critical role in making law; this is supported by the doctrine of judicial precedence which states that lower courts are bound by the decisions of the upper court. Harts soft positivism is a realistic concept in that he understands the relationship of other disciplines with law unlike Kelsen who presented an abstract concept of the Pure Theory of law which seems not to take notice of the role played by the society in law making. Hart also presented a true nature of the law in that not all laws are coercive as was stated by Austin. Some laws for example the Bill of Rights in a Constitution is not coercive but provides for the rights and privileges of the members of that particular society. In summation, Kelsen and Hart are the prominent positivists of the twentieth century. They had some similarities and differences as already discussed supra. It is therefore submitted that Hart presents a theory that is much more realistic and commensurate to modern day legal system in that a legal system is not an abstract concept that does not borrow from other disciplines like that of morality.

BIBLIOGRAPHY: 1. BH Bix (2009) Jurisprudence: Theory and Context 5(ed) Sweet and Maxwel: London. 2. NE Simmonds (2008) Central issues in Jurisprudence 3 (ed) Sweet and Maxwel: London. 3. MDA Freeman (2001) Lloyds Introduction to Jurisprudence 7(ed) Sweet and Maxwel: London. 4. Anonymous http//www.plato.stanford.edu vusumuzibhebhe@yahoo.com Accessed 12 October 2013.