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Hart’s The Concept of Law

Introduction

You will soon become aware that Hart’s work touches on many of the most significant questions about law. Whether or not you disagree with what he says, his work is an excellent starting point for getting deeper into jurisprudence. The immediate aim is to encourage you to obtain a very good working knowledge of a theory of law which is not only widely accepted, but which is very frequently the starting point for other significant theories of law. The way Hart produces his theory is also of great interest, since it is a very ‘lawyerlike’ approach, one that pays very close attention to the subtleties in our use of language. For your interest, Professor Hart, who was the Professor of Jurisprudence at the University of Oxford from 1954 to 1969, personally taught many of the English and Commonwealth judges of the present time, and also ran a successful commercial law practice in Lincoln’s Inn. As an introduction, you should read a very helpful account of Hart’s life and work by Joseph Raz, ‘H.L.A. Hart (1907–1992)’. Of particular importance, this overview includes a clear account of Hart’s views about definition and the purpose of the study of legal language, and his role and status as a philosopher of the linguistic school.

Many judges, lawyers and academics consider that Hart’s major work, The Concept of Law, first published in 1961, provides an accurate account of how we should understand law. This work is without a doubt one of the few major contemporary classics in the field, setting the agenda for practically all the questions that are currently raised in jurisprudence. The book is rightly part of the literature of a proper study of law at a university level and the teachers on the University of London Jurisprudence module believe that because of its importance it should be required reading for all candidates taking the module. For that reason, The Concept of Law is the subject of a compulsory question in the examination each year, out of a choice of three. It is important, therefore, to read this prescribed text very carefully indeed.

This chapter introduces Hart’s book and looks particularly at the development of his arguments from his initial discussion of the problem of definition, through his analysis of the idea of a rule, and how rules much better explain law than the idea of an ‘order backed by threats’ implicit in Bentham and Austin, to his claiming that it is in the

‘union of primary and secondary rules’ that the ‘key’ to jurisprudence is to be found.

The following chapter, Chapter 6, will examine the importance he attached to the role of his ‘rule of recognition’ and in Chapter 7, Hart’s important defences of his theory against criticisms of the natural law school will be examined.

Learning outcomes

By the end of this chapter and the relevant reading, you should be able to:

u explain what Hart means by a ‘simple’ definition

u explain the difference between an ‘internal’ and an ‘external’ point of view

u outline the main steps in Hart’s criticism of the ‘orders backed by threats’ theory

u provide an analysis of the concept of a rule

u explain the major components of Hart’s ‘union of primary and secondary rules’

u outline what Hart meant by the ‘rule of recognition’.

u consider critically Hart’s ‘construction’ of the secondary rules from a ‘pre-legal society’

u offer some comments on Perry’s criticism of Hart’s methodology

u give a critical account of Hart’s views on theorising about law.

Essential reading

¢ Hart, H.L.A. The Concept of Law. (revised edition) Ed. Raz and Tulloch (1994). All chapters but particularly the Preface, Chapters 1 to 6, and Chapter 9.

¢ Hart, H.L.A. Essays in Jurisprudence and Philosophy. (1982) Chapter 1.

¢ Hart, H.L.A. Essays on Bentham. (Oxford: Clarendon Press, 1982) [ISBN 0198254687] Chapter 10.

Jurisprudence and legal theory 5 Introduction to the set book: Hart’s The Concept of Law page 65

¢ Simmonds, N. Central Issues in Jurisprudence. Chapter 5.

¢ Dworkin, R. Taking Rights Seriously. Chapters 2 and 4.

¢ Finnis, J. Natural Law and Natural Rights. (Oxford: Oxford University Press, 1994) [ISBN 0198761104] Chapter 1.

¢ MacCormick, N. Legal Reasoning and Legal Theory. (Oxford: Oxford University Press, 1994) [ISBN 0198763840].

¢ Raz, J. (1993) ‘H.L.A. Hart 1907–1992’, Utilitas Vol. 5 pp. 146–56 (obtainable in philosophy sections of any university library).

¢ Perry, S. (1998) ‘Hart’s Methodological Positivism’ in Legal Theory, extracts of which are in Freeman, M. (ed) Lloyd’s Introduction to Jurisprudence at pp. 451–81.

5.1 Studying Hart

5.1.1 A short summary

Hart’s theory is a modern restatement of the theory of legal positivism first expounded in the nineteenth century by Jeremy Bentham and his disciple John Austin. Hart believed that the ideal model of law was that of a ‘modern municipal legal system’

in which laws were to be identified according to the sources of law that judges accepted. Since what the judges accepted was a matter of empirical fact, it would not

‘necessarily’ be the case that law had a moral content. Although this seems a relatively simple and, to many, an appealing idea, the route to this conclusion is a long one and this chapter is designed to make the journey easier.

5.1.2 How to read The Concept of Law

There are some chapters of Hart that warrant closer reading than others. The topic of definition and methodology is discussed by Hart in the Preface and Chapter 1. The criticisms that Hart makes of what he calls the ‘orders backed by threats theory writ large’, which is really an attack on Austin’s and Bentham’s command theory of law, are fully contained within Chapters 2, 3 and 4. The main thesis, that law consists of a ‘union of primary and secondary rules’, is contained in Chapters 5 and 6, and his all-important theory of the ‘rule of recognition’ is also discussed at length in Chapter 6. Apart from these chapters, it is only Chapter 9 that you need to read very closely, since this is where Hart defends his thesis of legal positivism against possible attacks by natural lawyers. A discussion of Chapter 9, because it concerns such large topics, is left to Chapter 7 of this subject guide. However, I shall briefly summarise what is contained in the other chapters of The Concept of Law, all of which, I should emphasise, you need to read, since they all contribute something to understanding Hart’s overall thesis.

However, it is also true that they need not be read to the same depth as the Preface, Chapters 1 to 6 and Chapter 9.

Take the book bit by bit, making notes as you go. You will find it difficult at first, but you will get used to it. It is absolutely essential to do this early on in your studies, so that you get a flavour of what intellectually rigorous jurisprudence is about. One way of thinking about how you should go about reading Hart’s book is to think of each of its 10 chapters as equivalent to a large and difficult case you might have to know thoroughly in a common law subject. The secret is to break the work down into manageable parts. You should make careful notes on each chapter – perhaps four or five pages of notes – and then you should at a later stage go back to these notes and summarise them further. One of the advantages of The Concept of Law is that there are no wasted words, and each paragraph provides an argument in itself. An accumulation of note-taking and careful reading, pursued throughout the first and second terms of your study, will give you not only a wealth of ideas and argument, but the confidence and background – for Hart’s work has great breadth as well as depth – to write clearly and knowledgeably in the final examination.

You will be expected to know in some detail the major theses contained in The Concept of Law, including Hart’s methodology; that is, the reasons why Hart argued for his conclusions in the way that he did. Since there are some doubts as to whether his methodology was clear – for at times it seems that he is ambiguous in his arguments – it is necessary to pay great attention to what he says early on in the work about the nature of definition.

Once you have grasped Hart’s theory, you should become acquainted with the very well-known criticism of it by Ronald Dworkin contained in Chapter 2 of Dworkin’s Taking Rights Seriously (1977) in which Dworkin claimed that Hart’s theory gave an account of law as rules which could not take into account the controversial nature of legal argument. Hart was troubled intellectually by Dworkin’s criticisms and the Postscript is largely a result of his later thoughts about The Concept of Law in the light of these criticisms. (See Chapters 6 and 11 of this subject guide.)

5.1.3 Discussion groups

An excellent way to learn the prescribed text would be to find one or two other students who are studying it.^† The questions that follow each chapter summary that I provide below would be an ideal basis for a 1–1½ hour discussion group. Students should take turns to introduce the question and give their answers to it, with a view to discussion. In this way you could get through, say, three or four questions, and since each of you would concentrate on one question, this would be an efficient way of sharing work. You will find that Hart’s work lends itself very well to discussion (there is absolutely no ‘waffle’ in it) and that often it is only when you hear the argument being put orally that you really grasp what he is getting at. You will find that Hart’s ideas are powerful and that it is very difficult indeed to formulate criticisms against them. But try to do so! He is very consistent and intelligent in his thought; so trying to engage with his thoughts by attempting some criticism is an intellectual exercise that can only be of benefit to you.

Do not attempt to answer the questions following each summary until you have read the relevant chapter of Hart. The questions are not there to test your understanding of my summaries. You will go very seriously wrong if you imagine that at this stage you can get away without reading The Concept of Law.

Preparing for an hour’s ‘peer-assisted learning’ on Hart

An ideal number of students would be three. Each should prepare one chapter of Hart with a view to giving a five- to ten-minute introduction – no more – to the other two students. (You will be surprised how little you can say in ten minutes.) This introduction should isolate about three or four main points to discuss.

5.2 Hart’s aims

Hart is clear about his aims in the early part of his work, particularly in the very short Preface.^† It follows that you should read it carefully. He expands on his aims in his discussion of the nature of definition in Chapter 1. It is common for the examination to have questions on the definitional – methodological – aspects of his thesis and the Preface and Chapter 1 should be taken together as a topic in their own right. An article to read in conjunction with Chapter 1 is Hart’s inaugural lecture ‘The Definition and Scope of Jurisprudence’, which predates the publication of The Concept of Law by nine years and contains some helpful and interesting comments, especially in the first part, although the argument is essentially that to be found in the Preface and Chapter 1 of his later book. It can be found as Chapter 1 of Hart’s Essays in Jurisprudence and Philosophy (1982).

† If you are not able to work with other students, simply spend some time thinking about these discussion questions and note down your responses.

† Read the Preface now.

Jurisprudence and legal theory 5 Introduction to the set book: Hart’s The Concept of Law page 67

Hart famously said it was his intention to produce what he described as an ‘essay in descriptive sociology’ and this phrase has bedevilled both academics and examination candidates ever since he wrote his book. It is fairly clear that he intended to describe for us how we understand our shared ‘concept’ of law, and he was going to do this by describing the ‘social phenomenon’ of law. It is important to note two assumptions that he appears to make at this point. First, that there is a ‘concept’ of law that ‘we’

share, and second, that discovering this concept is a matter of description only. His project – at first sight, at least – seems to be in accordance with common sense. After all, we do seem to share a ‘concept’ of law such that we know in some sense what we are all talking about when we talk about law, and it seems sensible that, to find out more about this ‘concept’, we need to describe in more detail what this ‘concept’ is.

Perhaps it is unfortunate that Hart used the word ‘sociology’ since that word invites us to ask why we do not find in The Concept of Law anything that passes for standard sociological, empirical enquiry into legal systems.

Hart also says in his Preface that he will pay great attention to the importance of examining language and the meaning of words, with the object of finding out what the social phenomenon of law is. He is clear, however, that his endeavour is not one of mere semantics, about the way we use words alone; instead he aims to give an account of law through the increased attention to legal-related language. In his lectures in Oxford in the 1950s, he used to draw an analogy with a captain on a ship who concentrates on focusing his telescope while his main object is to find land, since there is no other way to find out in which direction to steer his ship. Likewise, Hart says, it is only by focusing on legal language that we use that we can find out more about our real object: the social phenomenon of law to which the language refers. In other words, Hart’s aim is to pay attention to the language of the law although only to find out more about the social phenomenon itself.

The third and final point that Hart emphasises in the Preface is the distinction between the internal and external points of view. He says that we cannot understand properly what a social practice such as rule-following, and hence law, is unless we can understand what the practice is like ‘from the internal point of view’, that is to say, from the point of view of someone who accepts that practice as a guide to conduct. The ‘external’ point of view is manifested by someone who does not accept the practice in question. This point of Hart’s is very important for understanding his analysis of the concept of a rule, in his Chapter 4, and is important in general for appreciating what is involved over and above the mere recording of regularity of behaviour in explaining rule-governed human practices.

The analysis of rule-following

Hart says that there are vital differences between merely habitual behaviour, that is, doing things as a rule,^† and rule-following, i.e. making it a rule to do something. He says that it is wrong to describe rule-governed behaviour as merely regular and habitual behaviour. Instead, there must be acceptance that the fact that people do things regularly is a reason or standard for behaving in that regular way. Statements which appeal to standards are to be contrasted with these ‘external’ statements about the law, which do not signify that the speaker himself accepts them. In this sort of case, according to Hart, we do not say ‘It is the law that...’ but instead we say such things as ‘In the United Kingdom, they recognise as law...’. Hart says that this is an external statement because it is the natural language of an external observer of the system who, without him or herself necessarily accepting its rule of recognition, states the fact that others accept it.

† Colloquially, as a rule means

‘usually, but not necessarily always’, as in: ‘When I go to London, as a rule I take the train’.

Self-assessment questions

1. What are the three main points emphasised in Hart’s Preface?

2. What does it mean to ‘describe law’?

3. Is describing law analogous to describing, say, the geographical contours of an island?

4. What is ‘sociology’?

5. What is ‘legal related language’?

Questions for discussion

You may like to discuss these questions with tutors or fellow students.

1. Is the analogy with the captain’s focusing his telescope a good one?

2. What are the ‘internal’ and ‘external’ points of view? Is the following a

manifestation of the ‘internal’ point of view? A person who, while not accepting the rules of the Nazi legal system, recognises that clearly a lot of people once did.

3. Do you think that knowing whether people accept rules in their society is important? If so, why?

Summary

Hart aims to produce a descriptive theory of law by paying attention to legal-related language and to the internal attitude of people towards the law.

5.3 Definition and theory in The Concept of Law

Chapter 1

In this chapter, Hart isolates three questions of importance to be considered in jurisprudence:

u What is the difference between law and coercion?

u What is the relationship between legal and moral obligation?

u What does it mean to say that a social rule exists in a particular society?

In order to answer these three questions, he then sets up a method for understanding the concept of law by exploring the idea of definition. Consider his ‘simple’ definition of a triangle as ‘a three-sided rectilinear figure’. Such a definition is very useful since it breaks down what a triangle is into simpler ideas and allows us to substitute ‘three-sided rectilinear figure’ wherever the word ‘triangle’ is used. But he concludes that such a definition is not possible for law because of the existence of ‘difficult cases’, by which he means in particular international law and primitive law. International lawyers have long debated the vexed question of whether international law is ‘really’ law since there is no world court, nor world legislature, nor an internationally agreed form of systematically applied sanctions against those states that do not follow international law. Similarly, the law of primitive tribes does not seem to share certain institutions, such as formally constituted courts and legislatures, that seem to be part of the concept of law. There does not seem to be a ‘simple’ definition of law that could settle these questions once and for all.

Hart therefore abandons the idea of a ‘simple’ definition for law and adopts instead what can be described as a model of law, one against which the ‘difficult cases’ of international and primitive law might be compared. The construction of this model of law occupies him for most of the rest of his book, and his conclusion (outlined in detail

Hart therefore abandons the idea of a ‘simple’ definition for law and adopts instead what can be described as a model of law, one against which the ‘difficult cases’ of international and primitive law might be compared. The construction of this model of law occupies him for most of the rest of his book, and his conclusion (outlined in detail