THE LEGAL PHILOSOPHY OF H.L.A.
HART
Introduction:
H.L.A. Hart is a British legal philosopher. He was a barrister and worked as a
Professor of Jurisprudence at Oxford University. H.L.A. Hart is considered as
one of the most prominent legal positivists in the 20th century. Through his
work, Concept of Law, he revived the prominence of analytical legal positivism.
Hart used the tools of analytic, and especially linguistic, philosophy to explain
the concept law.
The gist of “Concept of Law”:
Through his book Concept of Law, H.L.A. Hart criticized the command
theory which is propounded by Jhon Austin.
Hart explained the law in the form of rules which contains primary and
secondary rules. He elucidated that the concept of law is the union of
primary rules and secondary rules.
Hart has made a distinction between internal and external point of views
of law and rules.
The criticism of Austin’s Command theory of law:
H.L.A. Hart criticized Austin’s Command theory of law in the following
manner:
The command theory states that we follow law because of the punishment
which is associated with the command. This kind of justification only
applies to the minority of the persons those who follow law because they
are not willing to get punishment. Austin fails to explain why majority of
the people like us those who are willingly follow the law.
Austin’s command theory is just like a gunman theory. There is no
difference between Austin’s sovereign and a gunman. Austin, through his
command theory, fails to maintain the difference between ‘being obliged’
and ‘having an obligation’. Austin’s command-duty-sanction thesis fails
to explain why, if a gunman threatens X with ‘Your money or Your life’,
X maybe obliged to hand over the purse but he has no obligation to do so.
Austin’s habit of obedience fails to explain succession to sovereignty.
According to the point of Austin, the people are only obliged to obey the
initial ruler but what about the successive rulers after the demise of the
initial ruler. Austin’s habit of obedience failed to explain the continuity of
the law, where people obey the successive rules. Hart maintains that
succession to sovereignty occurs by virtue of acceptance of the rule by
the people that the successor succeeds the throne but not based upon their
habit of obedience.
Austin’s model neglected a variety of laws. His theory is only applicable
to the criminal law. But what about other laws which are enabling the
people by conferring power to them. Austin’s command theory is not
applicable for the laws like contracts, wills etc.
The continuance of pre-existing laws cannot be explained on the basis of
command.
An Outline of Hart’s Jurisprudence:
Hart explains that laws are rules and the legal system is complex set of
rules. He says that where there are rules there exists an obligation to
follow and the idea of obligation is his core theory in the concept of law.
Hart explains that the rules of obligation is different from other kind of
rules as they are essential for the smooth working of the society and
people follow the rules because there exits social pressure to follow them.
Further he states that the core concept of jurisprudence is the union of
primary rules and secondary rules.
The primary rules create duties. The better example for the Hart’s
primary rules is the rules which are laid down in criminal law and tort
law. Under such rules human beings are required to follow those rules
whether they wish or not. He contrasts being under obligation from the
Austin’s view of “being obliged” where legal obligation is created from
the fear of sanction. But here in his case the primary rules create
obligation because there exists inner point of view where the people
follow the rules not because of fear of punishment but because the people
feel that they have an obligation to follow the rules, view them as
common standards of behaviour, violations of which are to be criticised
and such criticism is regarded as legitimate.
The prevalence of primary rules can be seen in the pre-legal societies
where they are the only means to regulate the behaviour and maintain the
order in the society. Societies which have only primary rules suffer with
three drawbacks. They are:
1. Uncertainty: uncertainty about what these rules actually are and what
kind of rule is relatively more important that other based on its scope.
2. Static: Primary rules are static. Pre-legal system only contains duty-
imposing rules and it is difficult (nearly impossible) to change those
rules on par with changing environment.
3. Unresolvable: If there is no ascertaining authority to adjudicate
whether a particular rule is broken or not. Disputes would continue in
that system and it would lead to complete inefficiency of the system.
Hart states that these deficiencies can be resolved with the inclusion of three
kinds secondary rules for each drawback. The following secondary rules are as
follows:
1. Rules of Recognition: Rules of recognition serves as a remedy for the
drawback of uncertainty. It is an essence of social practice which
provides for an authoritative criterion to ascertain about valid primary
rule in a particular legal system.
2. Rules of Change: Rules of change serves as a remedy for the static nature
of primary rules. Rules of change provides the power to change the
primary rules to keep them updated on par with the changing
environment.
3. Rules of Adjudication: which specify the means by which decisions are
to be taken as to whether a primary rule has been broken or not.
H.L.A. Hart emphasized that the main structure of the legal system is the union
of primary rules and secondary rules. He didn’t negate the prominence of
morality in the law. He elucidated that there can be morality in the law but we
cannot decide the validity of the law only on the basis of morality. Furthermore,
he explained that minimum content of morality can be there in the law.
IMPACT OF HART’S CONCEPT OF LAW IN THE CONTEMPORARY
JURISPRUDENCE:
Natural Law theorists alleged that the reason for the menace of world war 2
happened because legal positivists validated (directly or indirectly) the actions
of Fascists and Nazis. The acts of the Adolf Hitler and Bennito Mussolini,
though they are immoral, were validated because those were the command
which were given by the sovereign.
H.L.A. Hart, through his work “Concept of Law”, has revived the prominence
of positive law by emphasising that law is the system of social rules. The
validity of such rules can be ascertained by the secondary rules of recognition.
A particular rule is valid only when it is on par with the established standards of
the society. If a sovereign propounded a particular rule and it is not on par with
the established standard of society, it is a valid rule but the people are not under
the obligation to follow that rule. Hart is saying that the command of Hiltler to
send the Jews to a concentration camp is a valid rule but the soldiers are not
under an obligation to follow that rule. That is because such command is not in
accordance with the established standard of the society. By this he successfully
reduced the significance of sovereign in his legal theory.
