Hart's theory of law
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The Foundation of Hart’s Theory
Hart presents his legal model, in part, as a response to certain weaknesses in the 'command theory' of law. He is especially concerned to move beyond the narrow simplicity of the command theory's analysis, one that emphasizes merely a single feature of law (its coercive element) at the expense of other essential characteristics (e.g. law's normative dimension). The inadequacy of this approach, Hart suggests, results from a common failure by writers in jurisprudence to give proper consideration to three fundamental issues concerning the nature of law: (i) the relationship between law and coercion; (ii) the relationship between law and morality; (iii) the nature of rules. For Hart, law is a complex species of social phenomena linked to other complex species of social phenomena, most centrally, morality and coercion. It follows that any comprehensive analysis of law requires an examination of three critically important questions: (i) How does law differ from, and how is it related to, orders backed by threats? (ii) How do legal obligations differ from, and how are they related to, moral obligations? (iii) What are rules, and to what extent is law an affair of rules? The only way to avoid producing a distorted picture of law, Hart insists, is through careful analysis of these essential issues.
Hart argues that the command theory errs in producing a one-sided definition of law, one that describes law as a set of 'general orders issued by a sovereign power and backed by threats of punishment, where the sovereign itself submits to no one'. While there are a number of truthful elements present in Austin's theory, Hart believes its overall picture of law is fundamentally incomplete. On the positive side, Hart agrees with Austin's observation that law, to a significant degree, makes various modes of conduct obligatory. Similarly, he concurs with Austin's depiction of law as imposing limits on the range of options and choices that individuals in society have when organizing their activity. Hart also views with approval Austin's characterization of law as the principle means for prohibiting socially undesirable conduct, with sanctions (generally) applied for violation of corresponding legal rules. Nevertheless, Hart finds fault with Austin's analysis for having overlooked the fact, at least in (classically) liberal societies displaying the rudiments of democratic governance, that law is (primarily) obeyed not for fear of punishment arising from one's infringement of any number of different possible legal rules, but, rather, because of a sense that many in the society have that the law quite simply 'ought' to be obeyed. This perception of obligation towards the law, Hart thinks, is essential to the conception of law prevalent in most (classically) liberal, more or less democratic, societies. It is rooted in the acceptance, by a sufficient portion of the population within these societies, of the fundamental decision-guiding authority claimed by the existing framework of legal rules and law-giving bodies.
Underlying Hart's criticism is the contention that the command theory fails to distinguish between the concepts 'being obliged' and 'being under an obligation' to do (or not do) some particular act. According to Hart, one is said to be 'obliged' to do X wherever performance of X is a necessary condition for averting punishment for one's failure to do X. On the other hand, one is said to be 'under an obligation' to do X where one is instead motivated by a 'sense of duty' to do X, even in the presence of external stimuli compelling the avoidance of X. For Hart, being 'obliged' to do something is not unlike being confronted by a gunman demanding the surrender of one's wallet. To conflate this situation with being 'obligated' to do (or not do) either this or that constitutes a common, but no less lamentable, conceptual confusion. Obligations arise in the context of social rules. The existence of any social rule depends upon the widely held belief that people are generally under an obligation to perform (or not to perform) the act specified by the rule. Every social rule (logically) presupposes a distinctive attitude towards the rule's prescriptive content, one that involves accepting this content as a general standard of behavior. This attitude finds expression in the use of such familiar normative language as the terms 'ought', 'must' and 'should'. It constitutes a necessary condition for being able to say, in any circumstance, that someone is 'under an obligation'.
Hart believes, therefore, that a fundamental problem with the command theory of law is its failure to acknowledge the central role played by social rules in any (classically) liberal and (broadly) democratic form of society. Although Austin is correct to note that law frequently relies on sanctions for inducing compliance, at a more fundamental level this compliance can only be explained by reference to the general sense of obligation towards the law possessed by a significant portion of a society's population. Note, however, that Hart never quite indicates just how extensive this sense of obligation ought to be for his 'model of rules' conception of law to pass empirical and theoretical muster. Perhaps, at a minimum, it should be universally present amongst the members of a society's ruling class. The problem here is that this is really a bare minimum (after all, Hart takes it as axiomatic that a member of the ruling class just is an individual with this sense of obligation), and any absence of this sense within other segments of the population makes it difficult to rationalize Hart's insistence that any adequate legal model pay proper heed to the importance of this concept. (This is because many autocratic states can still be said to possess conceptually identifiable and highly effective legal systems.)
Consider, for instance, a society where 'brute force' is the norm for ensuring conformity to the law, one in which it is applied consistently (both in terms of specific instances of possible infractions and in terms of the society's overall population) by a ruling class whose members are themselves motivated (primarily) by a shared perception of an 'obligation' to obey the law. In such a society, most of its lay (or non-ruling) members are likely to find it difficult (if not meaningless) to distinguish between 'being obliged' and 'being under an obligation' to obey the law. Moreover, if the ruling class happens to constitute anything less than a near total of the society's population (which is rare), the risk of political instability is likely to rise. In this instance, the society's lay members may well find themselves resentful of the powerful 'elite', both in terms of the relative social advantage they enjoy and in terms of the perceived heavy-handedness with which they apply the law. For this reason, it would seem to be a simple matter of logic and prudence that the ruling class make every effort to ensure that a sense of obligation towards the law be present amongst as many segments of the society's population as possible.
Perhaps Hart's reticence concerning this matter is due to a self-imposed and somewhat rigorous intellectual division of labour; after all, the question posed, having been defined by Hart, is more nearly an empirical than theoretical one. Even so, it is a question with profound theoretical implications, among them the very validity of Hart's critique of Austin and the viability of his own theoretical construct.
In sum, the idea that law rests on a sense of obligation possessed by a certain portion of the population is an essential element of Hart's legal model. Compliance with the law's requirements, at least in the case of politically stable societies containing legal systems erected upon a foundation of universally applicable fundamental rights, can only be accounted for by reference to the normative concept of 'obligation'. This, in turn, requires the concept of a 'social rule', a further core component of Hart's legal model.
According to Hart, there are two necessary and jointly sufficient conditions for the existence of any social rule: (i) members of the group for which the rule is intended must generally abide by the rule; (ii) a significant portion of those members must come to view the rule from an 'internal perspective'. To adopt an 'internal perspective' regarding some rule involves more than just being aware of its existence; it requires 'accepting' the rule's prescriptive content in the sense of forming and maintaining a 'critical reflective attitude' towards the rule's action-guiding content. One possesses a critical reflective attitude when one accepts a certain prescribed pattern of behavior (the rule's subject matter) as a common standard applicable to every member of the group or society (including oneself). This attitude manifests itself in the form of: (i) mutual demands for compliance with the rule; (ii) criticism of those who violate it; (iii) a sense that such criticism is justified; and (iv) a general desire to maintain the standard and instill it in other, more recalcitrant, group members.
It is this 'internal aspect' of rules that distinguishes merely convergent, habitual behavior from genuinely rule-guided conduct. Generally speaking, habits are made possible by the fact that various patterns of behavior can, in fact, converge. Consider, for instance, a pattern of regular visits by a group of friends to a local pub on Friday nights. That this practice is not quite 'rule-governed' follows from the fact that any failure by a particular group member to appear one Friday evening would result in no serious criticism or group pressure to 'conform'. In fact, the participants of this activity are probably not even aware of their 'regular' behavior; to them, venturing to the pub at the end of the week to engage in some convivial relaxation is simply something they 'happen to do'. There is, in this instance, no overt attempt by any group member to ensure that their regular meetings be invariably observed. If, however, a point is reached where the group members do become self-consciously aware of their convergent behavior, and if they then seek to actively support it, a social rule is effectively born. From that point on, any break in the pattern of behaviour will be perceived as a 'fault', thus rendering the offender liable to criticism by his peers. Hart offers, as a typical example of a social rule, the oft-seen requirement that a gentleman remove his hat upon entry into a church. On the whole, the rules of morality, etiquette, grammar and popular games (e.g. chess and poker) also fall into this category.
Hart argues that social rules possess both an internal and external aspect. The fact that a given rule may be recognized to function as such by those outside the group of intended observers constitutes the rule's 'external aspect'. The fact that this same rule is used by those within the group as a guide to conduct constitutes its 'internal aspect'. Hart illustrates this distinction by imagining an individual with no prior knowledge of traffic regulations setting out to observe the behavior of drivers in their vehicles as they approach a particular traffic light. After a while, the observer should be able to predict, with a high degree of certainty, that when the light turns red the traffic will stop. In time, he will come to treat any traffic light turning red as a 'sign' the approaching traffic will stop. Drivers themselves, on the other hand, treat these lights as a 'signal' for them to stop. As licensed operators of their vehicles, they have come to accept the rule that states: 'when a traffic light turns red the driver must bring his vehicle to a halt'. A detached observer of this practice comprehends the rule from an external perspective: he sees only a convergent pattern of behavior. Actual participants in the practice, however, view the rule from a distinctly internal perspective: they see it as providing a reason for them to effectuate a complete halt of their vehicles upon being signaled to do so.
Social rules are of two kinds: (i) those that define conventional behaviour (e.g. rules of etiquette or grammar) and (ii) those that specify obligatory conduct (e.g. moral and legal rules). The former are distinguishable from mere 'habit' by the fact that a significant portion of observers view these rules from an internal perspective. In this respect, conventional and obligatory rules are very much alike. These rule-types differ, though, in the degree of pressure exerted on individuals to abide by their respective categories of prescription. Generally speaking, the level of compulsion is far more insistent in the case of rules perceived to be 'obligatory' than it is with rules considered to be 'conventional'. This is because obligatory rules typically owe their status to the fairly significant role they play in maintaining and preserving the prevailing ethos of a particular culture or society. Furthermore, rules viewed as obligatory frequently entail a degree of sacrifice amongst their subjects such that, if offered a choice, many would prefer to do otherwise. Usually, though, a sufficient number of group members can be found who perceive these rules as existing for the group's benefit, which, for them, both justifies their acceptance and bolsters the resolve of these committed adherents to promote and enforce their widespread observance.
Rules that impose obligations are themselves of two kinds: (i) a society’s moral code; (ii) a society's set of laws. In each case, there is significant pressure applied to individuals to conform to the existing set of rules. With 'moral' rules, this compulsion typically manifests itself in widespread disapproval or the inducement of shame, with the overall aim of producing remorse or guilt in the wrongdoer. There is unlikely to be any central body here responsible for administering punishment if a moral rule is breached. Instead, pressure for conformity tends to come in the form of a hostile response towards the wrongdoer, stopping just short of physical action. With legal rules, however, physical sanctions are very often present. In fact, where pressure for conformity includes the prospect of institutionalized physical punishment, the corresponding rule may be considered essentially legal in nature. This is generally so, even where the sanction is administered not by a designated body of officials, but rather, by the society at large.
Law as the Union of Primary and Secondary Rules
For Hart, then, law is a matter of social rules; it is a collection of statements pertaining to accepted standards of conduct that arise within a distinctly social context and apply to various forms of social activity. In this respect, law is similar in nature to morality. What makes law unique (apart from a potential reliance on physical sanctions), though, is the fact that legal rules can be said to possess a certain 'systematic quality'. This is a direct result of the existence of two separate categories of legal rule that interact to produce a structured framework of action-guiding norms. Morality, on the other hand, is less systematic in shape, possessing a generally amorphous body of prescriptive statements.
The two types of legal rule are (i) primary rules and (ii) secondary rules. Primary rules impose duties, setting out what individuals ought and ought not do. As such, they create obligations pertaining to acceptable and unacceptable patterns of behaviour within a given jurisdiction. Examples of primary rules include the numerous prescriptions, prohibitions and general standards of criminal, tort, contract and administrative law. Note that at least some of these rules, particularly those found within criminal law, bear a strong resemblance to Austin's 'orders backed by threats'.
Secondary rules confer powers on private individuals and public bodies to act upon primary rules in various ways. Such powers are also exercisable in respect of secondary rules themselves. These 'higher order rules' allow individuals and public bodies to introduce, modify and repeal primary rules, as well as settle disputes in relation to them. In this respect, secondary rules are essentially 'rules about rules'. They impose no obligations or duties at all on anyone; rather, they make possible the maintenance of different structures of rights and duties defined by the framework of primary rules. Examples of secondary rules applicable in the case of private individuals include specified procedures for creating wills and contracts, and for conveying property. Examples of secondary rules applicable in the case of public bodies are those rules governing jurisdiction and powers of the courts, powers of the legislature, recognized sources of law, etc.
Hart suggests that the difference in function between primary and secondary rules is reflected in the vocabulary associated with their use. For example, failure to comply with the provisions of a criminal statute is described as a 'breach' or 'violation' of one's duty or obligation. This non-compliance is also characterized as an 'offense'. In contrast, failure to abide by the prescribed procedures for creating a will or a contract results in the far less inculpatory position of having effectuated a 'nullity'.
Taken together, Hart believes this pair of rule-types constitutes 'not only the heart of a legal system, but a most powerful tool for the analysis of much that has puzzled both the jurist and the political theorist'. The union of these two categories of legal rule allows the observer to comprehend law, not in terms of some narrow and a priori definition with little or no bearing on social reality, but as a unified system of social control that more accurately reflects the role and function of key elements of the law such as 'legislation, jurisdiction, validity and … legal powers, [both] private and public'.
The Modern Legal System
In The Concept of Law, Hart engages in a thought experiment in which he imagines a society devoid of any legislature, court system or public officials. In this 'pre-legal' social order, there are primary rules imposing obligations, but no secondary rules conferring powers in relation to them. The community, as a matter of necessity, is generally small and close-knit, with basic prohibitions on various forms of violence, theft and deception. On the whole, the society functions smoothly, with a majority of its citizens adopting an internal perspective toward the loose array of primary norms. Nevertheless, an arrangement of this sort cannot be considered a legal system as such.
That this unstructured collection of rules is not quite a 'legal system' is underscored, Hart thinks, by the presence of three debilitating 'defects' in regimes of this type. The first is 'the problem of uncertainty'. According to Hart, a society that lacks higher-order, power-conferring rules would find itself unable to authoritatively identify its lower-order, obligatory rules. As a result, any doubt or disagreement over the existence of some rule would be unresolvable by official means. In particular, there would be no authoritative text or adjudicative body to provide direction in the case of uncertainty. Moreover, it might even be unclear whether the prevailing set of social rules could be deemed 'legal' at all, as opposed to, say, rules that are 'moral', 'customary' or 'religious' in nature. In fact, it might be generally more appropriate to characterize this collection as an amorphous mix of moral and customary rules. Perhaps the most one could say about this society, then, is that it contained a regime of 'unofficial rules'.
The second defect is 'the problem of the static nature of laws'. A regime of purely primary rules, Hart suggests, would offer no mechanism for eliminating older rules presently seen as obsolete or creating newer ones to address pressing social needs. Similarly, there would be no procedure to modify existing rules to adapt to changing and often unexpected social contingencies. Instead, the society would be compelled to rely on a generally lengthy process whereby obligatory rules gradually emerge from evolving social practices over time. Swift acts of opportunistic rule-creation by a legislature or judiciary intent on supplying an immediate solution to urgent social problems would be quite unheard of in a social order with no higher-order, power-conferring rules.
The third defect is the 'the problem of inefficiency'. A regime of exclusively first-order rules, Hart believes, would lack an authoritative body for adjudicating disputes and determining that a violation has occurred. It would offer no official procedure for assessing the extent of a breach or prescribing an appropriate form of compensation or punishment. As a result, recourse to self-help and vigilantism would abound, thereby threatening the stability of the social order and squandering valuable time and resources.
The remedy for these defects would consist in supplementing the regime of purely primary rules with power-conferring secondary rules. The problem of uncertainty, for instance, would be corrected by the introduction of a higher-order 'rule of recognition' to establish the validity of all recognized lower-order rules. This would make it possible to authoritatively identify any rule that is officially a part of the 'system' of rules. The effect would be to establish a formal distinction between those rules officially recognized as obligatory and those rules not so recognized. The rule of recognition would itself be identified by the practice engaged in by the system's officials as they create, modify and apply these primary rules. Hence, a rule of this sort would not need to be written down or articulated in any concise or formal manner, since it would be discernible in the accepted criteria that the officials rely upon in determining whether or not a lower-order rule is contained within the overall system of rules.
In any modern legal system the rule of recognition may be quite complex. Indeed, it might well be a conglomeration of rules setting out the society's accepted formal sources of law. In the UK, for instance, the rule of recognition can be said to include (at least) the following requirements: (i) whatever the Queen in Parliament enacts is law; (ii) whatever rules originating in custom and properly judged as law by the courts is law; (iii) whatever precedents currently accepted by the higher courts as accurately specifying the proper interpretation and application of recognized rules of law is law; (iv) whatever by-laws and regulations enacted in pursuance of, and in accordance with, the powers set out in the enabling statutes is law; (v) whatever directly applicable EC law meeting the requirements of section 2(1) of the European Communities Act 1972 is law; and (vi) whatever rights specified in the European Convention on Human Rights 1950 and satisfying the requirements and procedures for recognition as set out by the Human Rights Act 1998 are recognized as lawfully protected rights, and, as such, is law.
'Rules of change' would offer a solution to the problem of the static nature of laws. They would do so by empowering private individuals and public bodies to introduce, modify and abrogate primary rules of obligation. In the case of private individuals, these secondary rules would allow for the creation of wills, contracts, companies, etc. In the case of public bodies, they would create the power to legislate. As such, this class of secondary rules would be subdivided into two further classes: (i) private rules of change that allow for the creation, modification and cessation of various different private legal relationships; (ii) public rules of change that confer power on officials to create, modify and abrogate the legal system's primary and secondary rules for the purpose of addressing the society’s greater needs.
'Rules of adjudication' would address the problem of inefficiency by conferring power on judicial officials to carry out the process of resolution and enforcement where a dispute has arisen or a primary rule has been breached. These secondary rules would establish the standards relied upon by the courts to determine the instances and extent of any such violation, as well as the appropriate punishment or compensation under the circumstances. The rules of adjudication would also identify the officials who would staff the courts and the procedures they would follow.
Thus we have the essential core of Hart’s theory (or 'concept') of law: Law is a system made possible by the existence of two types of social rule: (i) those that are duty-imposing, and (ii) those that are power-conferring. In the central case it requires a union of these 'primary' and 'secondary' rules. This conception is both the 'heart of a legal system' and a 'most powerful tool of analysis'. Indeed, it is 'what Austin wrongly claimed to have found in the notion of coercive orders, namely, "the key to the science of jurisprudence"'.
There is, of course, much that has been left out of this necessarily skeletal treatment of Hart's work. For instance, Hart’s important call for a theory of judicial decision-making that avoids the 'great exaggerations' of both formalism and rule-skepticism through establishment of a middle position that 'corrects' these two doctrines was not here discussed. Neither was Hart’s significant concession of a 'minimum content of natural law', a crucial part of his theory despite his generally positivist assumptions. Finally, there was insufficient space to consider Hart's notable admission that while his legal model may shed light on 'central cases' of systems of 'municipal' law, it does not rule out 'penumbral cases' such as 'primitive' and 'international' law. Each of these topics is essential to any comprehensive understanding of Hart’s theory of law and should be explored as a supplement to the foregoing discussion.
<seealso> Hart Austin Dworkin Lon Fuller