The Concept of Law
Encyclopedia
The Concept of Law is the most famous work of the legal philosopher H. L. A. Hart
. It was first published in 1961 and develops Hart's theory of legal positivism
(the view that laws are rules made by human beings and that there is no inherent or necessary connection between law and morality
) within the framework of analytic philosophy
. In this work, Hart sets out to write an essay of descriptive sociology
and analytical jurisprudence
. The Concept of Law provides an explanation to a number of traditional jurisprudential questions such as "what is law?", "must laws be rules?", and "what is 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. As a result Hart's view has remained one of the most influential in jurisprudence.
. The Concept of Law developed a sophisticated view of legal positivism.
Among the many ideas developed in this book are:
'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. Some are facilitative, allowing us to create contracts and other legal relations.
Austin believed that every legal system had to have a sovereign
who creates the law (origin) whilst 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.
(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). 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.
But laws are more than rules of conduct. Laws can be divided up into two sorts: primary rules (rules of conduct) and secondary rules (rules addressed to officials and which set out to affect the operation of primary rules). Secondary rules deal with three problems: first the problem of uncertainty about what the law is (the secondary rule for this dilemma is called the rule of recognition and states the criteria of validity of a law), second the problem of rigidity of rules (which requires rules of change allowing laws to be varied), and third the problem of how to resolve legal disputes (from which rules of adjudication arise). A legal system is "the union of primary and secondary rules."
Lastly, 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.
H. L. A. Hart
Herbert Lionel Adolphus Hart was an influential legal philosopher of the 20th century. He was Professor of Jurisprudence at Oxford University and the Principal of Brasenose College, Oxford. He authored The Concept of Law....
. It was first published in 1961 and develops Hart's theory of legal positivism
Legal positivism
Legal positivism is a school of thought of philosophy of law and jurisprudence, largely developed by nineteenth-century legal thinkers such as Jeremy Bentham and John Austin. However, the most prominent figure in the history of legal positivism is H.L.A...
(the view that laws are rules made by human beings and that there is no inherent or necessary connection between law and morality
Morality
Morality is the differentiation among intentions, decisions, and actions between those that are good and bad . A moral code is a system of morality and a moral is any one practice or teaching within a moral code...
) within the framework of analytic philosophy
Analytic philosophy
Analytic philosophy is a generic term for a style of philosophy that came to dominate English-speaking countries in the 20th century...
. In this work, Hart sets out to write an essay of descriptive sociology
Sociology
Sociology is the study of society. It is a social science—a term with which it is sometimes synonymous—which uses various methods of empirical investigation and critical analysis to develop a body of knowledge about human social activity...
and analytical jurisprudence
Analytical jurisprudence
Analytical jurisprudence is a legal theory that draws on the resources of modern analytical philosophy to try to understand the nature of law. Since the boundaries of analytical philosophy are somewhat vague, it is difficult to say how far it extends. H. L. A...
. The Concept of Law provides an explanation to a number of traditional jurisprudential questions such as "what is law?", "must laws be rules?", and "what is 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. As a result Hart's view has remained one of the most influential in jurisprudence.
Background
The book emerged from a set of lectures that Hart began to deliver in 1952, and it is presaged by his Holmes lecture, Positivism and the Separation of Law and Morals delivered at Harvard Law SchoolHarvard Law School
Harvard Law School is one of the professional graduate schools of Harvard University. Located in Cambridge, Massachusetts, it is the oldest continually-operating law school in the United States and is home to the largest academic law library in the world. The school is routinely ranked by the U.S...
. The Concept of Law developed a sophisticated view of legal positivism.
Among the many ideas developed in this book are:
- A critique of John Austin's theory that law is the command of the sovereign backed by the threat of punishment.
- A distinction between primary and secondary legal rules, where a primary rule governs conduct and a secondary rule allows of 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 WeberMax WeberKarl Emil Maximilian "Max" Weber was a German sociologist and political economist who profoundly influenced social theory, social research, and the discipline of sociology itself...
's distinction between the sociological and the legal perspectives of law. - The idea of the Rule of RecognitionRule of RecognitionA 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 within that system...
, a social rule that differentiated between those norms that have the authority of law and those that do not. Hart viewed the concept of rule of recognition as an evolution from Hans Kelsen's "Grundnorm", or "basic norm." - A late reply (1994 Edition) to Ronald DworkinRonald DworkinRonald Myles Dworkin, QC, FBA is an American philosopher and scholar of constitutional law. He is Frank Henry Sommer Professor of Law and Philosophy at New York University and Emeritus Professor of Jurisprudence at University College London, and has taught previously at Yale Law School and the...
, who criticized legal positivism in general and especially Hart's account of law in Taking Rights Seriously (1977), A Matter of Principle (1985) and Law's Empire (1986).
Austin's "Command theory"
The starting point for the discussion is Hart's dissatisfaction with John AustinJohn Austin (legal philosopher)
John Austin was a noted British jurist and published extensively concerning the philosophy of law and jurisprudence....
'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
Gun
A gun is a muzzle or breech-loaded projectile-firing weapon. There are various definitions depending on the nation and branch of service. A "gun" may be distinguished from other firearms in being a crew-served weapon such as a howitzer or mortar, as opposed to a small arm like a rifle or pistol,...
in a bank
Bank
A bank is a financial institution that serves as a financial intermediary. The term "bank" may refer to one of several related types of entities:...
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. Some are facilitative, allowing us to create contracts and other legal relations.
Austin believed that every legal system had to have a sovereign
Sovereignty
Sovereignty is the quality of having supreme, independent authority over a geographic area, such as a territory. It can be found in a power to rule and make law that rests on a political fact for which no purely legal explanation can be provided...
who creates the law (origin) whilst 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.
Social habits, rules, and laws
Hart draws a distinction between a social habitHabit (psychology)
Habits are routines of behavior that are repeated regularly and tend to occur subconsciously. Habitual behavior often goes unnoticed in persons exhibiting it, because a person does not need to engage in self-analysis when undertaking routine tasks...
(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). 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.
But laws are more than rules of conduct. Laws can be divided up into two sorts: primary rules (rules of conduct) and secondary rules (rules addressed to officials and which set out to affect the operation of primary rules). Secondary rules deal with three problems: first the problem of uncertainty about what the law is (the secondary rule for this dilemma is called the rule of recognition and states the criteria of validity of a law), second the problem of rigidity of rules (which requires rules of change allowing laws to be varied), and third the problem of how to resolve legal disputes (from which rules of adjudication arise). A legal system is "the union of primary and secondary rules."
Lastly, 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.
See also
- John Austin
- Max WeberMax WeberKarl Emil Maximilian "Max" Weber was a German sociologist and political economist who profoundly influenced social theory, social research, and the discipline of sociology itself...
- Hans Kelsen
- Ronald DworkinRonald DworkinRonald Myles Dworkin, QC, FBA is an American philosopher and scholar of constitutional law. He is Frank Henry Sommer Professor of Law and Philosophy at New York University and Emeritus Professor of Jurisprudence at University College London, and has taught previously at Yale Law School and the...
- John FinnisJohn FinnisJohn Finnis , is an Australian legal scholar and philosopher, specializing in the philosophy of law. He is Professor of Law at University College, Oxford and at the University of Notre Dame, teaching jurisprudence, political theory, and constitutional law...