Jurisprudence and the Concept of Law

The classic work of ‘The Concept of Law written by H.L.A Hart is widely recognized as providing the zenith of legal positivism. Hart’s proposition is that the basic failure of the Austinian model is its neglect of the concept of a rule. [3] Hart claims that for understanding the foundations of a legal system, rather than an account based on habitual obedience to the commands of an unlimited sovereign, a necessary insight will be that laws are a species of rules and ultimately the foundations of a legal system will be based on the acceptance of a fundamental rule. [4] According to Hart, without the idea of a rule it is not possible to elucidate even the most elementary forms of law and he goes on to identify that the key to the science of jurisprudence lies in the union of what he terms “primary” and “secondary” rules. [5] He therefore definitely disagrees with the proposition that a legal system is just a reflection of political power. In Hart’s opinion, this tendency to reduce all laws to a single pattern ignores the differing social functions of different laws. [6] He criticized Austin’s command theory on the ground that it failed to encompass the variety of laws. [7] Hart’s model explains much that has puzzled both the jurist and the political theorist for generations such as concepts like rule and obligation [8] and validity. [9] It would be naïve to think that Hart was not aware of the conflict and coercion that were part of the social universe of law. [10] However, the theoretical framework of ‘The Concept of Law’ downplayed the elements of coercion, command and habitual obedience in law. [11] It replaces the notions of power and violence in the jurisprudential elucidation of concepts of law by conceiving of law as a system of rules upon rules, of social practices informed by their own criteria of validity and normative obligation. [12] In his presentation of the benign and functionalist face of liberal legality, Hart transforms the early positivist theme of an external coercion enforcing the law and making the subject feel ‘obliged’ by threat of violence to remain lawful, i.e. the threat of sanctions into an image of the legal subject’s normative obligation to abide by legal rules. [13] Hart’s argument is that early positivism such as Austin had misunderstood law’s obligatory nature viewing legality as something external, that means politically imposed on an otherwise chaotic social order to structure it. [14] Hart rebutted this view by saying that legality was something which developed in evolutionary fashion through a growing complex system of different kinds of rules. [15] He premised his thesis on a fundamental recognition that law entails obligation [16] and therefore developed a theory of law that rendered the source of this obligation an internal effect of the structure of a modern municipal legal system. [17] Without highlighting domination, Hart articulates of the shared acceptance of rules. [18] Legal rules were not to be seen as external forces upon citizens, but as their resources. [19]

The Structure of ‘The Concept of Law’:

Hart designs ‘The Concept of Law’ in such a brilliant way that it has an apparently simple framework with a particular structure of development and exposition. [20] This is a reason for its attractiveness and influence. [21] Hart claimed in the preface to ‘The Concept of Law’ that his aim in the book has been to further the understanding of law, coercion, and morality as different but related social phenomena. [22] He suggests that his work could be read in two ways. [23] It could be regarded as an essay in descriptive sociology [24] which serves to recognize from an analysis of the language of everyday life, the centrality of rules and better understanding of the nature of rule-bound practices. [25] This analysis of everyday linguistic usage is in turn positioned in an analytical account of the development of modern law from its pre-legal origins. [26] According to Hart, the another way of reading the book to treat it as an essay in analytical jurisprudence, for it is concerned with the clarification of the central features of law. [27] To achieve his aim, Hart works through the idea that law is a complex social reality which involves many elements or aspects and distinguishes the contingent aspects of legal system from the central elements of the concept of law. [28] Thus he separates law’s essence from law’s practice. [29] Many questions may arise in the mind of a legal realist from law’s practice who seeks to observe law through a predictive lens seeing only the behaviour of people in social institutions and that’s why those concerns are peripheral in the sense that the essence of law would not be significantly affected if they are altered. [30] Therefore, it is submitted that, a legal system cannot be reduced into the reflection of mere political power because the underlying feature of a legal system is valid legal rules which differ from a prediction of the behaviour of officials. [31]

The Criticism of Austin’s Command Theory:

Austin’s concept of law denotes that law is a command, given by a determinate common superior to whom the bulk of a society is in the habit of obedience and who is not in the habit of obedience to a determinate human superior, enforced by a sanction. [32] In short, for Austin, ‘law strictly so called’ consists of a command given by a sovereign enforced by a sanction. [33] The element of command is crucial to Austin’s thinking, and Austin’s concept of law, therefore, is sometimes described as the ‘command theory’ or the ‘imperative theory’ of law. [34]

Hart criticizes Austin’s this formulation of law by saying that Austin failed to understand the complexity of legality because the Austinian image of law is an image of one person or group imposing their will on another through commands and sanctions. [35] Hart illustrated his point by developing a discussion based on Kelsen’s famous distinction between the demands of a gangster to a bank clerk to hand over whatever money the bank clerk has, and the demands of a tax official addressed to a citizen of a country to pay the tax monies owing. [36] Hart distinguishes these two situations by the terms of ‘authority’ and ‘generality’. [37] According to Hart, “To command is characteristically to exercise authority over men, not power to inflict harm, and though it may be combined with threats of harm a command is primarily an appeal not to fear but to respect for authority.” [38] The demands made to the bank clerk are addressed to him personally, while law is generally addressed to a class of people. [39] Moreover, despite the fact that the bank clerk may well be coerced to hand over the money and feel ‘obliged’ to do so, he is under no ‘obligation’ to perform as ordered. [40] What the bank clerk experiences is fear, but not respect. [41] Hart distinguishes between the meaning inherent in the linguistic expression ‘being under an obligation’, and that of ‘being obliged’, and clarifies that while the first links with authority, the second does not. [42] Hart’s assertion is that by distinguishing clearly between the sets of social meanings involved in ‘having an obligation’ and ‘being obliged’, familiar features of municipal law in a modern state can be understood. [43]

Austin treated all laws as duty-imposing [44] and as a result Hart’s another major criticism of Austin’s model is that it neglected power-conferring laws such as laws which entitle individuals to make wills, engage in transactions, create contracts, and develop a range of social projects which are supported by the law including those conferring legal powers to adjudicate or legislate or to create or vary legal relations which cannot be construed as orders backed by threats. [45]

Moreover, Austin failed to explain why in a modern democratic system it is assumed that everybody is subject to the same law which includes also the officials of the state and even judges. [46] Hart observes that Austin’s theory of legally illimitable sovereignty cannot be bound by the same laws as the subjects. [47] Additionally, Austin’s tracing of the source of all law to the sovereign’s command is considered to ignore the fact that customary law and judge-made law may arise from and derive independent authority from sources different from that of legislation. [48] This is why Hart specifies Austin’s model as a top-down idea of law and regards as having lesser importance in the modern world. [49] Hart’s another observation is that Austin’s command theory cannot explain the fact that laws are persistent because it cannot answer the question that why laws continue to be valid after the sovereign which had created them has been abolished. [50] Hart introduces the notion that laws are rules and that a legal system is a complex set of rules. [51] Hart’s portrayal of law as a self-regulating system of rules contrasts to Austin’s picture of a legal order as the expression and instrument of all-too-human political power, i.e. the power of the sovereign and its delegates. [52] What is missing in Austin’s legal theory is the notion of the Rule of Law, a government of laws and not of men. [53] Hart’s image of law is that of a system in which rules govern power-holders; in which rules, rather than people, govern. [54] As a result, law can be imagined independent of politics.

The nature of a rule, ‘the internal aspect of rules’:

By introducing the idea of a rule Hart replaces the concept of orders of the sovereign as the central focus of legal positivism. [55] Hart claims that for understanding legality it is necessary to understand the full character of rules and the nature of rule-bound behaviour. [56] It follows that a rule should be distinguished from a mere habit, the deviation from which is itself usually a good reason for criticizing the breach and rules have an internal aspect. [57] A rule’s rudimentary feature is the internal aspect which is a ‘critical reflective attitude’ shared by most members of a social group towards the behaviour entailed in the rule as a general standard. [58] This attitude manifests through mutual demands for conformity, criticisms for violations of the standard which also includes self-criticism and a desire to maintain and instil this standard among the members. [59] This is why, for Hart, rules are normative. [60] It means that rules are capable of conferring rights, duties and powers which mere habits cannot. [61] Language displays the manifestation of this internal attitude by the use of a special kind of ‘normative’ vocabulary, for example, you ought to do this, you must do that, such and such is right or wrong. [62]

According to Hart, like a specific form of rule-bound practice, legally regulated behaviour should be explained. [63] Law makes social practices possible, and to understand law, one needs to adopt an internal view of law. [64] The internal view of law means that the view of a citizen who lives in a system and understands what the laws are about. [65] Hart claims that Austin does not consider the thought processes of a citizen who lives inside a stable legal system who knows enough to be able to make legal judgments of right or wrong based on an interpretation of the legal rules. [66]

Law as the union of primary and secondary rules:

Hart goes on to identify the modern legal system as a union of what he terms ‘primary’ and ‘secondary’ rules. [67] Primary rules are rules which impose obligation. [68] However, according to Hart, if a society has no more than obligation rules, it will not be able to cope satisfactorily with the need to change rules from time to time, with the need to decide on disputed questions, and with the need for criteria to determine which rules are rightly regarded as obligation rules and which not. [69] These needs can only be satisfied by the introduction of rules of change, adjudication and recognition which are collectively termed as secondary rules. [70] They are power-conferring rules [71] and are considered as parasitic on primary rules. [72] Their introduction represents a step from the pre-legal to a legal world. [73]

A society without legislature, courts or officials of any kind which only comprises of primary rules and devoid of secondary rules would manifest three defects such as the defect of uncertainty, the defect of the static nature of the rules and the defect of inefficiency. [74]

Uncertainty is remedied by the introduction of the secondary rule of recognition. [75] It specifies what particular features a rule must have to be recognized as a rule of the society. [76] The rule of recognition may be simple or complex. [77] A complex rule of recognition may be the feature of a developed legal system where rules are to be recognized as rules of the society if created through a certain legislative procedure, or declared by a judge in certain conditions, or supported by long customary practice. [78] The limbs of such a complex rule of recognition could be hierarchically ordered so that the limb recognizing legislative rules takes priority over those recognizing customary rules and rules declared in judicial decisions. [79]

The static quality of primary rules is remedied by the introduction of those secondary rules called rules of change. [80] These empower an individual or body to introduce new and to eliminate old primary rules. [81] They include, for example, rules governing the composition and procedures of a legislative body, as well as rules allowing individuals to alter their own legal circumstances, for example, the making of wills, forming contracts, getting married, forming companies etc. [82]

Finally, the inefficiency in operation of a regime of primary rules is remedied by the introduction of those secondary rules called rules of adjudication. [83] They specify means by which a final authoritative decision can be reached as to whether in a particular case a primary rule has been broken. [84] Who has the authority to adjudicate and what procedures to be followed are specified in these rules, for example, the jurisdiction and procedures of courts and the qualifications of judges. [85]

Commentators like MacCormick and Raz, however, have pointed out that secondary rules are not necessarily power-conferring. [86] For example, rules about appointing judges involve two relevant types of law, one fixing the duties and powers of judges and the other conferring on some person the power to appoint them. [87] It supports the idea that conferring powers and determining duties are typically intertwined which Austin rightly understood. [88] MacCormick therefore criticized Hart’s theory of law for such vagueness and imprecision in his distinction between primary and secondary rules. [89] Hart offers no rigorous analysis to make the distinction clear. [90]

However, Cotterrell explains such vagueness at the most fundamental part of Hart’s theory by commenting that the need to distinguish primary and secondary rules is not dictated by considerations of analytical rigour in normative legal theory but by a political concern to emphasise aspects of law which Austin was thought to have under-emphasised. [91]

Hart’s legal theory portrays law as a self-regulating system of rules. [92] According to Raz, what moved Hart to adopt his doctrine of rule of recognition is his assumption that the answer to the question of whether a legal rule is valid must be found in a criterion of validity provided by some other rule. [93] The rule of recognition and the other secondary rules are seen as governing the entire process of production, interpretation, enforcement, amendment and repeal of rules within the legal system. [94] Therefore, the concept of secondary rules can be seen as an attempt to devise an analytical category that can serve as the umbrella under which an appropriate emphasis can be given to power-conferring functions of legal rules. [95]

The typical features of the modern constitutional state are these secondary rules, insofar as they are ‘public’ in character in which the powers of officials are not arbitrary but defined by rules of law. [96] Simultaneously, rules conferring ‘private’ powers allow individuals to adjust their personal legal positions in deliberate, freely chosen and purposive action which mark an individual’s autonomy as a citizen within the legal order, participating in it as a member of a legal community. [97] For making use of such private power-conferring rules the individual presumably must be a legal ‘insider’, someone who adopts an internal view of the rules. [98]

In this way, the stress on public power-conferring rules builds the normality of the ideal of the Rule of Law in the sense of government subject to law into Hart’s theory, and the parallel stress on private power-conferring rules builds into it the normality of the ideal of autonomous citizenship. [99] This perspective is stark contrast with Austin’s legal theory that entails the notion of subjection to a sovereign and undoubtedly a much more attractive one, politically, in a modern democracy. [100]

The Rule of Recognition:

According to Hart’s concept of law, the rule of recognition of a legal system determines which other rules in the system are valid as law. [101] Hart distinguishes in this context between what he calls a supreme criterion of validity, part of the rule of recognition which dominates over the rest, for example, Parliamentary enactment is the supreme criterion in the United Kingdom, and the ultimate rule of the system which is the rule of recognition itself because one cannot go back further than that. [102] It is ultimate in the sense that Kelsen’s basic norm is, because one cannot trace validity back any further. [103] Although one can trace back the root of title or validity of a bylaw to an Act of Parliament, here Hart says that one is brought to a stop in inquiries concerning validity. [104] Hart uses this distinction to criticize Austin’s attempt to say that all law is the result of legislation and he claims that this sort of confusion is caused by supposing that the supreme criterion of validity within the rule of recognition is the rule of recognition itself, that is, in the case of the United Kingdom, supposing that the only rule of recognition is: ‘What Crown-in-Parliament enacts is law’. [105]

Although the existence of the rule of recognition is a matter of empirical fact which is to be determined by looking to the actual practice of the officials of the system, this does not mean that the rule of recognition is explicitly declared. [106] Hart says that in the day-to-day life of a legal system its rule of recognition is very seldom expressly formulated as a rule and that for the most part the rule of recognition is not stated. [107] However, its existence is shown in the way in which particular rules are identified. [108]

The existence of a legal system:

For the existence of a legal system, one minimum condition is that the rule of recognition and the other secondary rules are accepted as binding by the officials who have the task within the legal order of creating, changing, interpreting, applying, enforcing, or advising on legal rules. [109] It follows that the officials must adopt an internal view of the secondary rules and must view them as meaningful guides for their own conduct and that of others.