“HART’S CONCEPT OF LAW AND JUSTICE”

Ravindra Kumar Singh

A summary by Raeesa Khan

Hart believes strongly in modern Anglo-English theory.

Hart says that there is no necessary correlation between law and coercion or between law

and morality. According to him, the classification of all laws as coercive orders or as moral

commands will oversimplify the relation between law, coercion and morality.

Additionally, to do so (conceptualise all laws as coercive orders or moral commands) will

lead to a mischaracterization of the purpose, function, content, mode of origin, and range of

application of certain laws.

Hart disagrees with Austin’s Command theory, which states that, “all laws are commands of

a legally unlimited sovereign, and all laws are coercive orders that impose duties or

obligations on individuals”.

According to Hart:

i. Laws may be at a variance from the commands of a sovereign in as much as

they may apply to those individuals who enact them and not merely to other

individuals,

ii. Laws may also be different from coercive orders as they may not impose duties

or obligations but confer powers or privilege,

command,

iv. Austin fails to consider the difference between a habit and a rule. A habit requires

common behaviour whilst a rule is used by people as a standard by which to

judge deviations.

v. Hart uses rule to differentiate between ‘being obliged’ and ‘having an obligation’,

whilst Austin’s theory fails to account for these.

For Hart, a legal system is a system of rules consisting of primary rules and secondary rules.

The union of the two rules is the essence of his concept of law.

These are social because:

i. They regulate conduct of member of society, and are guides to human conduct

and standards of criticism of social conduct, and are

ii. Derived from human social practices.

Primary rules of obligations are “rules that impose duties or obligations on individuals, such

as the rules of the criminal law or the law of tort”. They are binding because of practices of

acceptance which people are required to do or to abstain from certain actions.

Secondary rules are “those which confer power, public or private, such as the law that

facilitate the making of contracts, wills trusts etc., or which lay down rules governing the

composition of power of courts, legislatures and other official bodies”.

Primary rules are concerned with what the individuals must do or refrain from doing whereas

secondary rules provide operations which lead to the creation or variation of duties or

obligations.

The secondary rules specify the way in which the primary rules may be ascertained,

introduced, eliminated, varied, and the fact of their violation conclusively determined.

Secondary rules are chiefly procedural and remedial and embrace not only the rules
governing sanctions but also go far beyond them. Furthermore, these rules also extend to

the rules of judicial procedure, evidence and the rules governing the procedure for new

legislation.

For the effective function of a legal system, the rules must be clear and concise to be

understood to the individuals to whom they apply. Secondary rules of recognition stipulate

how legal rules are to be identified, to be followed and enforced within the community. The

secondary rules of recognition authoritatively and in the proper way settle doubts as to what

these rules are and what their scope is.

‘Secondary rules of change’ empower certain individuals to introduce new rules relating to

the conduct of individuals of that community and to eliminate the old rules, hence specify the

mechanism for changing primary rules. It is in terms such a rule that the system of legislative

enactment and repeal are to be understood. ‘Secondary rules of change’ may be either very

simple or very complex.

The regime of primary rules suffers from the defect of inefficiency. This shortcoming can be

met by having ‘secondary rules of adjudication’ which confer powers on certain individuals to

ascertain and to make authoritative pronouncements whether rules have been violated or

breached. Besides, they also define the procedure to be followed, and characterize the legal

conception of judge, court, jurisdiction and judgment.

Hart’s thesis that: “a rule of recognition exists in every legal system” is the central feature of

his positivistic theory of law. It provides a means for identifying the law in a morally neutral

approach.

Hart states the primary rules of obligations are not sufficient to establish a system of laws

that can be formally recognised, changed, or adjudicated. Therefore, secondary rules are

necessary to provide an authoritative statement of all the primary rules:

i. To allow legislators to make changes in the primary rules if they are defective or

inadequate,
 ii. To enable courts to resolve disputes over interpretation and application of

primary rules.

Secondary rules of a legal system include:

i. Rules of recognition

ii. Rules of change

iii. Rules of adjudication

The primary rules acquire the character of a legal system through their union with secondary

rules. If a primary or secondary rule satisfies the criteria which are provided by the ultimate

rule of recognition, then that rule is legally valid.

There are two fundamental essentials which must be satisfied for a legal system to exist:

i. private citizens must generally obey the primary rules of obligation,

ii. public officials must accept the secondary rules of recognition, change, and

adjudication as standards of official conduct.

Morality is also included in Hart’s concept of law. Moral and legal rules overlap because

moral and legal obligation may be similar or different depending on the situation.

Moral and legal rules may be appropriate and valid in similar aspects of conduct, such as the

obligation to be honest and truthful or the obligation to respect the rights of other individuals.

However, moral rules cannot always be changed in the way in which the legal rules can be

changed.

Hart acknowledges that the ultimate basis for preferring the positive thesis, which insists on

a clear differentiation of law and morals, is itself a moral one. But Hart distinguishes law from

morality, custom, etiquette, and other kinds of social rules.

law. They are—

i. importance,

ii. immunity from deliberate change,

iii. voluntary character of moral offence and

iv. forms of moral pressure

Moral responsibility is a matter of internal behaviour while law is generally concerned with

external behaviour. Hart’s view is that law depends not only on the external social pressures

which are brought to bear on human beings, but also on the inner point of view that such

beings take towards rules conceived as imposing obligations.

JUSTICE

The notion of justice is more ancient than that of law. The concept of justice is based upon

and is equated with moral rightness (ethics), rationality, law, natural law, fairness,

righteousness, equality, goodness, and equity. Justice has been subject to various

philosophical, legal and theological reflections and debate throughout the history.

There are various forms and variations of the concept of justice:

i. Utilitarianism is a form where punishment is forward-looking;

ii. Retributive justice administers proportionate response to crime proven by lawful

evidence, so that punishment is justly imposed and considered as morally-correct

and fully deserved;

iii. The law of retaliation (lex talionis) is a military theory of retributive justice which

states that reciprocity should be equal to the wrong suffered;

power, reward, respect - between different people, i.e. equal distribution among

the equals;

v. Corrective justice seeks to reinstate equality when this is disturbed.

In very general terms, justice signifies a cluster of ideals and principles for common good

and welfare without the least hope or opportunity of injustice, inequality or discrimination. It is

the notion of justice which directs our attention to the fairness and reasonableness of the

rules, principles, and standards that are the ingredients of the normative edifice.

Hart, by defining law as the combination of rules, makes morality or justice as a necessary

component of law through the rule of recognition.

Hart is aware that they be cases in which existing laws are vague and judicial discretion may

be necessary to interpret existing laws or to look outside the law for standards to guide in

supplementing old legal rules or creating new ones according to the community’s ideal of

morality or justice.

Hart analyses the concept of justice into a general principle or definition with changeable

criteria. According to Hart, the general concept of justice relates to fairness. Evaluations

using justice and injustice could use fair and unfair instead.

The concept of justice applies to two primary types of circumstances

i. the distribution of benefits or burden upon individuals, and

ii. where wrongdoers compensate to the victims for the injuries caused.

The general precept of justice is that ‘Treat like cases alike and different cases differently’.

This must be supplemented by an account of relevant criteria for deciding whether the cases

are similar or different. Hart does not provide a general theory or set of principle for
determining which characteristics are. The concept of justice is morally neutral. The concept

of justice is a formal and not a substantive one.

Objections to theory of treating like cases alike:

i. the precept does not always be relevant and treating cases alike possibly creates

a conflict with following rules.

ii. Treating like cases does not provide a prima facie reason of justice;

iii. Hart’s principle of treating like cases alike is not sufficient to account for

compensatory justice

iv. Hart’s precept of justice of treating like cases alike is also, thus, insufficient

though it is relevant to punishment.