''The Concept of Law'' is a 1961 book by the
legal philosopher
Philosophy of law is a branch of philosophy that examines the nature of law and law's relationship to other systems of norms, especially ethics and political philosophy. It asks questions like "What is law?", "What are the criteria for legal val ...
H. L. A. Hart and his most famous work. ''The Concept of Law'' presents Hart's theory of
legal positivism
Legal positivism (as understood in the Anglosphere) is a school of thought of analytical jurisprudence developed largely by legal philosophers during the 18th and 19th centuries, such as Jeremy Bentham and John Austin. While Bentham and Austin de ...
—the view that laws are rules made by humans and that there is no inherent or necessary connection between law and
morality
Morality () is the differentiation of intentions, decisions and actions between those that are distinguished as proper (right) and those that are improper (wrong). Morality can be a body of standards or principles derived from a code of cond ...
—within the framework of
analytic philosophy
Analytic philosophy is a branch and tradition of philosophy using analysis, popular in the Western world and particularly the Anglosphere, which began around the turn of the 20th century in the contemporary era in the United Kingdom, United Sta ...
. Hart sought to provide a theory of descriptive
sociology
Sociology is a social science that focuses on society, human social behavior, patterns of Interpersonal ties, social relationships, social interaction, and aspects of culture associated with everyday life. It uses various methods of Empirical ...
and
analytical jurisprudence
Analytical jurisprudence is a philosophical approach to law that draws on the resources of modern analytical philosophy to try to understand its nature. Since the boundaries of analytical philosophy are somewhat vague, it is difficult to say how f ...
. The book addresses a number of traditional jurisprudential topics such as the nature of law, whether laws are rules, and the relation between law and morality. Hart answers these by placing law into a social context while at the same time leaving the capability for rigorous analysis of legal terms, which in effect "awakened English jurisprudence from its comfortable slumbers".
Hart's book has remained "one of the most influential text of analytical legal philosophy", as well as "the most successful work of analytical jurisprudence ever to appear in the common law world." According to
Nicola Lacey
Nicola Mary Lacey, (born 3 February 1958) is a British legal scholar who specialises in criminal law. Her research interests include criminal justice, criminal responsibility, and the political economy of punishment. Since 2013, she has been Pr ...
, ''The Concept of Law'' "remains, 40 years after its publication, the main point of reference for teaching analytical jurisprudence and, along with
Kelsen’s ''
The Pure Theory of Law'' and ''General Theory of Law and State'', the starting point for jurisprudential research in the analytic tradition."
Background
''The Concept of Law'' emerged from Hart's initial lectures as
Oxford
Oxford () is a city in England. It is the county town and only city of Oxfordshire. In 2020, its population was estimated at 151,584. It is north-west of London, south-east of Birmingham and north-east of Bristol. The city is home to the ...
Professor of Jurisprudence following
Arthur Goodhart's retirement, in 1952. Among Hart's early lectures on law that are expanded in the book is his 1953 essay titled, "Definition and Theory in Jurisprudence." Hart's discussion of Austin's legal positivism, the separation of law and morality, and the open-texture of legal rules can be seen in his April 1957 presentation of the Oliver Wendell Holmes Lecture at
Harvard Law School
Harvard Law School (Harvard Law or HLS) is the law school of Harvard University, a private research university in Cambridge, Massachusetts. Founded in 1817, it is the oldest continuously operating law school in the United States.
Each class ...
titled, "Positivism and the Separation of Law and Morals''."'' The book developed a sophisticated view of legal positivism.
Among the ideas developed in the book are:
*A critique of
John Austin's theory that law is the command of the sovereign backed by sanction.
*A distinction between primary and secondary legal rules, where a primary rule governs conduct and a secondary rule allows the creation, alteration, or extinction of primary rules.
*A distinction between the internal and external points of view of law and rules, close to (and influenced by)
Max Weber
Maximilian Karl Emil Weber (; ; 21 April 186414 June 1920) was a German sociologist, historian, jurist and political economist, who is regarded as among the most important theorists of the development of modern Western society. His ideas profo ...
's distinction between the sociological and the legal perspectives of law.
*The idea of the
rule of recognition
A central part of H.L.A. Hart's theory on legal positivism, in any legal system, the rule of recognition is a master meta-rule underlying any legal system that defines the common identifying test for legal validity (or "what counts as law") wit ...
, a social rule that differentiated between those norms that have the authority of law and those that do not. Hart viewed the rule of recognition as an evolution from
Hans Kelsen
Hans Kelsen (; ; October 11, 1881 – April 19, 1973) was an Austrian jurist, legal philosopher and political philosopher. He was the author of the 1920 Austrian Constitution, which to a very large degree is still valid today. Due to the rise ...
's "''
Grundnorm
Basic norm (german: Grundnorm) is a concept in the '' Pure Theory of Law'' created by Hans Kelsen, a jurist and legal philosopher. Kelsen used this word to denote the basic norm, order, or rule that forms an underlying basis for a legal system. ...
''", or "basic norm".
*A posthumous reply to
Ronald Dworkin
Ronald Myles Dworkin (; December 11, 1931 – February 14, 2013) was an American philosopher, jurist, and scholar of United States constitutional law. At the time of his death, he was Frank Henry Sommer Professor of Law and Philosophy at New Yo ...
, who criticized legal positivism in general and especially Hart's account of law in ''
Taking Rights Seriously'', ''A Matter of Principle,'' and ''
Law's Empire
''Law's Empire'' is a 1986 text in legal philosophy by Ronald Dworkin, in which the author continues his criticism of the philosophy of legal positivism as promoted by H.L.A. Hart during the middle to late 20th century. The book introduces Dwork ...
''.
Persistent questions
Hart begins ''The Concept of Law ''with a chapter titled "Persistent Questions." In the chapter, he lays out what he describes as "three recurrent issues." Hart asks the following recurring three questions for legal theory: "How does law differ from and how is it related to orders backed by threats? How does legal obligation differ from, and how is it related to, moral obligation? What are rules and to what extent is law an affair of rules?"
Austin's "command theory"
The starting point for the discussion is Hart's dissatisfaction with
John Austin John Austin may refer to:
Arts and entertainment
* John P. Austin (1906–1997), American set decorator
* Johnny Austin (1910–1983), American musician
* John Austin (author) (fl. 1940s), British novelist
Military
* John Austin (soldier) (180 ...
's "command theory": a jurisprudential concept that holds that law is command backed by threat and is meant to be ubiquitous in its application. Hart likens Austin's theory to the role of a gunman in a bank and tries to establish the differences between the gunman's orders and those made by law. (For instance, the gunman forces us to obey but we may not feel inclined to obey him. Presumably, obedience to the law comes with a different feeling.)
Hart identifies three such important differences: content, origin, and range. In terms of content, not all laws are imperative or
coercive
Coercion () is compelling a party to act in an involuntary manner by the use of threats, including threats to use force against a party. It involves a set of forceful actions which violate the free will of an individual in order to induce a desi ...
. Some are facilitative, allowing us to create
contracts
A contract is a legally enforceable agreement between two or more parties that creates, defines, and governs mutual rights and obligations between them. A contract typically involves the transfer of goods, services, money, or a promise to tran ...
and other legal relations.
Austin believed that every legal system had to have a
sovereign
''Sovereign'' is a title which can be applied to the highest leader in various categories. The word is borrowed from Old French , which is ultimately derived from the Latin , meaning 'above'.
The roles of a sovereign vary from monarch, ruler or ...
who creates the law (origin) while remaining unaffected by it (range), such as the bank scene's gunman, who is the only source of commands and who is not subject to other's commands. Hart argues that this is an inaccurate description of law, noting that laws may have several sources and legislators are very often subject to the laws they create. Hart lets us know that laws are much broader in scope than coercive orders, contrary to the "command theory" of Austin. Frequently laws are enabling and so allow citizens to carry out authoritative acts such as the making of wills or contracts which have legal effect.
Social habits and rules
Hart draws a distinction between a social
habit
A habit (or wont as a humorous and formal term) is a routine of behavior that is repeated regularly and tends to occur subconsciously. (which people follow habitually but where breaking the habit does not bring about opprobrium - going to the cinema on Thursday for example) and a social rule (where breaking the rule is seen as wrong - neglecting to take off one's hat upon entering a church, for example). We feel in some sense bound by social rules and laws frequently appear to be types of social rule.
There are two perspectives to this: the external aspect, which is the independently observable fact that people do tend to obey the rule with regularity, and the internal aspect which is the feeling by an individual of being in some sense obligated to follow the rule, otherwise known as the critical reflective attitude. It is from this internal sense that the law acquires its normative quality. The obedience by the populace of a rule is called efficacy. No law can be said to be efficacious unless followed by the majority of the populace. Though an average citizen in a modern state with a developed legal system may feel the internal aspect and be compelled to follow the laws, it is more important for the officials of the society/peoples to have the internal aspect since it is up to them to follow the constitutional provisions which, if they wish, could ignore without accountability. Yet, the officials must use the internal aspect and accept the standards as guiding their behaviour in addition to also guiding the behaviour of other officials.
Hart's Empirical Legal System in "The Concept of Law"
Hart believed law is the union of primary rules (rules of conduct) and secondary rules (empowering rules).
Primary Rules
''Primary rules'' are rules, or laws, that govern general societal conduct. Thus, ''primary rules'' construct legal obligations and consequences when they are disobeyed. A good example of ''primary rule'' is the law against murder; it prohibits a person from killing and attaches consequences for committing, attempting to commit, and conspiring to commit the crime.
By: DATIUS DIDACE (LL.B)
Secondary Rules
''Secondary rules'' confer power to create sovereignty; they also confer the power to change, modify, or enforce primary (and secondary) rules. Secondary rules combat the three major issues of legal systems that ''primary rules'' can't–(1)
uncertainty of the law, (2)
inefficiency of the law, and (3)
static ''quality'' of the law. Each kind of ''secondary rule'' addresses a separate one of those three issues, yet all are interdependent. Hart separates secondary rules into three types–the rules of recognition, the rules of change, and the rules of adjudication.
Rules of Recognition
Hart states that the remedy for the
uncertainty of the regime of primary rules is a ''rule of recognition''. The rule of recognition is a collection of standards and requisites that govern the validity of all rules; thus, the rule of recognition confers power to new rules by validating them. For a rule to be valid is to recognize it as passing all the tests provided by the rule of recognition.
Rules of Change
There are no legal systems that can be classified as
pareto optimal
Pareto efficiency or Pareto optimality is a situation where no action or allocation is available that makes one individual better off without making another worse off. The concept is named after Vilfredo Pareto (1848–1923), Italian civil engine ...
. The next best thing is to make sure that the system does not remain at a static quality but instead is dynamic and progressive. The remedy for the
static quality of the regime of ''primary rules'' are ''rules of change''. Generally, rules of change confer and prohibit power of the creation, extinction and alteration of primary and secondary rules. Rules of change range in complexity: “the powers conferred may be unrestricted or limited in various ways: and the rules may, besides specifying the persons who are to legislate, define in more or less rigid terms the procedure to be followed in legislation.” As mentioned earlier, rules of change are interdependent with the other rules. Hart emphasizes the “close connection between the rules of change and the rules of recognition.” Where rules of change exist, rules of recognition "ʺwill necessarily incorporate a reference to legislation as an identifying feature of the rules, though it need not refer to all the details of procedure involved in legislation.”
Rules of Adjudication
''Rules of adjudication'' were intended to remedy the
inefficiency of its diffused social pressure. Rules of adjudication empower individuals to make authoritative determinations of the question whether, on a particular occasion, a primary rule has been broken. Rules of adjudication govern the election and procedure of the judiciary. However, intermingled with who adjudicates is what laws they adjudicate. Under that logic, rules of adjudication, like rules of change, must also be supplemented by rules of recognition of some sort. Thus, “the rule which confers jurisdiction will also be a rule of recognition, identifying the primary rules through the judgments of the courts and these judgments will become a 'source' of law.”
[Hart 1994, p.96-97 (Hart emphasizes that a “system which has rules of adjudication is necessarily also committed to a rule of recognition of an elementary and imperfect sort.”)]
Other Jurisprudential Philosophers
*
John Austin John Austin may refer to:
Arts and entertainment
* John P. Austin (1906–1997), American set decorator
* Johnny Austin (1910–1983), American musician
* John Austin (author) (fl. 1940s), British novelist
Military
* John Austin (soldier) (180 ...
*
Ronald Dworkin
Ronald Myles Dworkin (; December 11, 1931 – February 14, 2013) was an American philosopher, jurist, and scholar of United States constitutional law. At the time of his death, he was Frank Henry Sommer Professor of Law and Philosophy at New Yo ...
*
Duncan Kennedy
*
John Finnis
John Mitchell Finnis, , (born 28 July 1940) is an Australian legal philosopher, jurist and scholar specializing in jurisprudence and the philosophy of law. He is the Biolchini Family Professor of Law, emeritus, at Notre Dame Law School and a P ...
*
Jeremy Bentham
Jeremy Bentham (; 15 February 1748 Old_Style_and_New_Style_dates">O.S._4_February_1747.html" ;"title="Old_Style_and_New_Style_dates.html" ;"title="nowiki/>Old Style and New Style dates">O.S. 4 February 1747">Old_Style_and_New_Style_dates.htm ...
*
Max Weber
Maximilian Karl Emil Weber (; ; 21 April 186414 June 1920) was a German sociologist, historian, jurist and political economist, who is regarded as among the most important theorists of the development of modern Western society. His ideas profo ...
*
Hans Kelsen
Hans Kelsen (; ; October 11, 1881 – April 19, 1973) was an Austrian jurist, legal philosopher and political philosopher. He was the author of the 1920 Austrian Constitution, which to a very large degree is still valid today. Due to the rise ...
*
Carl Schmitt
Carl Schmitt (; 11 July 1888 – 7 April 1985) was a German jurist, political theorist, and prominent member of the Nazi Party. Schmitt wrote extensively about the effective wielding of political power. A conservative theorist, he is noted as a ...
References
{{DEFAULTSORT:Concept of Law, The
1961 in law
1961 non-fiction books
Books about jurisprudence
Philosophy books
Philosophy of law