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BY HART
Introduction
Meaning of Legal Positivism
Hart’s Nature of Legal Theory
Hart on the Role of Language
Hart’s View on the Term ‘Law’
Hart’s Idea of Viewing ‘Law’ as a ‘RULE’
Primary & Secondary Rules
Criticisms on Hart’s Distinction of Primary and Secondary
Rules
Hart on Morality
Hart’s Descriptive Sociology
Conclusion
Introduction
• Hart (1907-1992), who was a Prof of Jurisprudence at Oxford
during 1952-68, was a leading figure in the post-war movement
for the revival of interest in the philosophy of law in relation to
the much wider field of general philosophical enquiry.
• He was interested particularly in the development of the doctrine
of legal positivism and set out his view of the fundamentals of a
legal system in ‘The Concept of Law’ (1961).
• Prof. Hart in Chapters 8 and 9 of ‘The Concept of Law’ expounds
his view of morality. He claims that there is no necessary
connection between law and morality. However, this does not
mean that he has no view on morality. In ‘Liberty, Law and
Morality’ Hart discusses the role of morality in law creation. Hart
subscribes to paternal morality (to save people from harm) and
does not approve conventional morality as propounded by judges
like Lord Devlin.
• Hart rejects the command theory for not revealing certain
distinctive features of law and legal systems. Hart wants to start a
‘fresh start’. He does it by positing a theory which claims that the
quintessence of law and legal system could be understood by a
‘union of primary and secondary rules’. This is Hart’s key to the
Science of Jurisprudence.
Meaning of Legal Positivism
• Legal positivism is used to signify a doctrine which rejects any
metaphysical speculation concerning law. In other words, it is
considered as a view of law which takes into account the positive
law only i.e., law as it ‘is’ and not law as it ‘ought’ to be.
• The term ‘legal positivism’ can best be summarised by this
statement: “The existence of law is one thing; its merits and
demerits another...”
• As to the connection between law and morality, Hart insisted that
the connection was not a necessary one. Law can still exist
without morality. Law can be moral, immoral and amoral.
Legality is one thing; morality is another. (See the Nazi-Germany
laws from Hart’s perspective)
Hart’s Nature of Legal
Theory
• Hart, like other jurists i.e. Austin and Kelsen also wants to
understand the perennial question: “what is law”. To this, Hart
identifies three recurrent questions which are related to law:
• (i) to what extent is law related to
• Hart refused to use the word ‘law’ because jurists cannot agree on its
meaning. He wanted to avoid the danger of adopting a wrong definition of
any concept. He thus stated that although it is possible to define an elephant
as ‘quadruped with thick skin, tusks and trunks’ or a lemon as a ‘yellow
citrus fruit that taste sour’, it is not so for law. To him, it is impossible to find
a class or family of meaning (genus) to which law belonged.
• Hart stated that to define the term ‘what is law’, would be by way of making
reference to linguistic philosophy. To Hart this could be done by comparing
the possible usages of the word, placing them in different contexts and
different sentences i.e. observing the usage of ‘normative language’ e.g. “But
you promised”- which shows that a rule exists which justifies keeping of
promises. It is not merely predictive; “You better not park your car near the
yellow line” or “stop, on the light turning red”. All these according to Hart
implies acceptance of certain correct standards of behaviour (rules). These
are not merely predictive but there is a justification to obey. The maker of
the statement could be said to have received a signal (not a sign) to remove
his car from the yellow line or stop.
• Hart also tried to come up with a distinction which formulate the
cause of ‘nature and laws’ which governs the conduct of man.
• Hence, as a result of that distinction, Hart could perceive the
difference between ‘science and law’ through linguistic practices.
• For example, we find that we do not say that birds ‘break’ the law
if they do not fly south during winter but ‘reformulate’ our
understanding of the flight of birds.
• Furthermore, the same could not be said of a thief who ‘breaks’
the law when he steals. We find that ‘law’ is often associated with
‘law impregnated words’ such as ‘ought’, ‘would’ or ‘should’.
Hart’s Idea of Viewing ‘Law’
as a ‘RULE’
• According to Hart, the basic failure of the Austinian model is its neglect
of a concept of a rule. Hart argued that to understand the foundations of
a legal system, rather than an account based on habitual obedience to the
commands of unlimited sovereign, a necessary insight will be that laws
are a specifies of rules and ultimately the foundations of a legal system
will be based on the acceptance of a fundamental rule.
• Hart posed a question in his understanding of the ‘law’ that is, to what
extent is law an affair of rules.
• Hart argued that in every society there are certain matters that
influence human behaviour and this can be divided into:
• (i) Social habits
• rules of change
• rules of adjudication.
(a) Rules of Recognition
• The ultimate rule that determines the existence and validity of all other
rules in a legal system. In other words, it is the heart of a legal system.
For example, the ‘rules of recognition’ describe what usually officials
understand as the ‘sources’ of law.
• The ‘rule of recognition’ resolves problems of uncertainty in primary
rules i.e. Formal distinction of what is law and what is not. For example,
it helps to separate between legal rules and other social rules which are
based on morality, coercive norms etc
• The main features of a ‘rules of recognition’ are:
• (i) it is a rule and so there is a standard there, to be observed;
• (ii) that standard must be accepted by all officials and might
be accepted by the rest of the community;
• (iii) the existence of a rule of recognition is a question of
empirical fact in each community and there is no requirement
that an official ought to accept it;
• (iv) the rule of recognition is the ultimate rule of the system
in that it is the final test of validity of a legal system’s rules;
and
• (v) a legal system exists when
• (a) a rule of recognition exists and
• (b) the rules that it validates are generally effective within
the jurisdiction marked out by the rules.
(b) Rules of Change
• Confer powers to legislators, judges and officials to amend,
repeal, enact new rules. Thus, the ‘rules of change’ play the role of
remedying the defect of staticness caused by primary rules. In the
area of private law, the ‘rules of change’ enable the private
citizens to change their legal position through the conferment of
power to make wills, marry, make contracts etc.
(c) Rules of Adjudication
• Confer power on judicial officials to adjudicate on disputes and
breach of law. In other words, rules setting out standards for
determination by courts of the instances, extent and the
commensurate punishment or compensation for any breach of
law.
• The ‘rules of adjudication’ also enables compliance with rules
conferring power to for example the police to maintain law and
order. It also specify certain procedures in which adjudication is to
take place. (See the relevant statutes i.e. CPC, Evidence Act 1950
etc)
Criticisms on Hart’s
Distinction of Primary and
Secondary Rules
1. Cohen argues that the ‘rule of recognition’ does not always confer
powers. He claims that the main function is mainly to ‘identify’, to
‘make it clear’ or to ‘determine the scope of certain rules’. (See the
ECA 1972 in the context of Community or EU law).
2. Certain secondary rules are duty imposing in nature such as; Hughes
argues that the ‘rule of recognition’ could be said to impose duties
upon judicial officials to exercise their adjudicative powers by
applying laws satisfying certain criteria. For example, the ECA 1972
which imposes a duty on a judge to give precedence to community
law. Rules of adjudication also imposes duties as well i.e. the rules of
adjudication such as ‘exclusionary’ rules of hearsay, rules on
admissibility of a confession etc impose duties on judges to exclude
them .
3. Cohen once again argues that the labelling of the rules of evidence
and court procedure as secondary rules (often labelled the secondary
rules of adjudication) distorts the real function of these rules. For
example, the rules of evidence are not merely ‘adjuncts’ to rules
conferring powers upon officials to adjudicate. It is better to see them
as an independent body of law, which is being developed separately.
4. Hacker briefly pointed out that secondary rules could be about
secondary rules as well. For example, the ‘rule of recognition’
identifies the law and so the ‘rule of recognition is logically prior to
the ‘rules of adjudication’. In other words, the ‘rule of recognition’
cannot be subsumed under ‘rules of adjudication’.
5. Sometimes, a ‘primary rule’ could be about another ‘primary rule’ as
well. This is because certain elements of a ‘primary rule’ rides on
another ‘primary rule’, constituting a new offence. For example, we
find that the basic elements of theft in an offence such as burglary.
• Irrespective of the criticisms raised by the critics, it is
possible to defend Hart from such attacks by basically
stating that he merely wanted a ‘very loose’ and ‘general’
classification of rules. He is just appealing to the
‘uncontroversial’ (in this sense, undeniable) fact that we do
indeed think of laws as consisting of primary and secondary
rules. This unrigid classification is clear when Hart says that
he is merely ‘distinguishing certain laws under the very
rough head of laws that confer powers from those that
impose duties’.