Hart’s concept of law and justice

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Ravindra Kumar Singh

Herbert Lionel Adolphus Hart1 (1907-92) is a gigantic champion of modern Anglo-English legal theory.  Legal positivism, of which Hart was the major proponent, has been variously evolved and significantly refined in many respects and by many followers. But at the same time legal positivism demonstrates signs of an excessive pluralism and a theoretical fragmentation of detailed analyses, so much that nothing we can say about legal positivism in general can be agreed to by all positivists. Inclusive positivists differ with the exclusives, and within each camp they differ with each other on the reasons why the opposite camp is wrong2. However, Hart’s shadow hovers over these disagreements and his theory remains by far the most interesting and internally consistent version of legal positivism. This is why we need to go back at Hart’s writings and explore his insights about law, legal theory and the concept of justice. What follows is a critical examination of Hart’s methodological premises in an attempt to bring to light the conceptions underneath his concept of law and justice.

His most significant writings include Causation in the Law (1959, with A.M. Honoré), The Concept of Law (1961), Law, Liberty and Morality (1963), Of Laws in General (1970), and Essays on Bentham (1982). The Concept of Law is one of the most noteworthy and original works of legal philosophy written in the twentieth century. It is considered as the masterpiece of HLA Hart's mammoth contribution to the study of jurisprudence and legal philosophy. Its elegant language and balanced arguments have sparkled wide debate and unprecedented growth in the quantity and quality of the scholarship in the area of philosophical examination of the basis for law. It has had far reaching effects, not only on the thought and study of jurisprudence founded upon English common law, but also on political and moral theory. Thus, this thought-provoking work is an essential reading for lawyers and philosophers throughout the world who seek an understanding of the philosophical basis for law. The Concept of Law is, therefore, a thorough-going examination of the philosophical foundations of law, and much of the work in the succeeding forty seven years since its publication hold Hart's work implicit in discussions of philosophy of law.

In his book The Concept of Law, Hart has analyzed the relation between law, coercion, and morality, and has also attempted to clarify the question of whether all laws may be properly conceptualized as coercive orders or as moral commands. Hart says that there is no rationally necessary correlation between law and coercion or between law and morality. According to him, classifying all laws as coercive orders or as moral commands is oversimplifying the relation between law, coercion, and morality. He also explicates that to conceptualize all laws as coercive orders or as moral commands is to impose a deceptive appearance of uniformity on different kinds of laws and on different kinds of social functions which laws may perform. Hence, it will be mischaracterization of the purpose, function, content, mode of origin, and range of application of some laws.

Indeed, there are laws which forbid individuals to perform various kinds of actions and impose an assortment of obligations on individuals. Sometimes, some laws impose punishment or penalties for injuring other individuals or for not complying with various kinds of duties or obligations.

Hart disapproves of the concept of law which was formulated by John Austin in The Province of Jurisprudence Determined (1832). Hart commences explaining his concept of law by first taking Austin’s command theory to task. According to Austin, all laws are commands of a legally unlimited sovereign, and he asserts that, all laws are coercive orders that impose duties or obligations on individuals. Hart, on the other hand, says that laws may be at 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. Secondly, laws may also be different from coercive orders in as much as they may not necessarily impose duties or obligations but may instead confer powers or privileges without imposing duties or obligations on individuals. Thirdly, the continuance of pre-existing laws cannot be explained on the basis of command; as pointed out, he was able to demolish completely the ‘tacit command’ myth3. Fourthly, Austin’s ‘habit of obedience’ fails to elucidate succession to sovereignty because it fails to take account of improvement difference between ‘habit’ and ‘rule’. Habits only require common behaviour, which is not sufficient for a rule. A rule has an ‘internal aspect’, i.e. people use it as a standard by which to judge and condemn deviations; habits do not function in this manner. Succession to sovereignty occurs by virtue of the acceptance of a rule entitling the successor to succeed, not on account of a habit of obedience. Fifthly, Hart also uses ‘rule’ to differentiate 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 may be obliged to hand over his purse, but has no obligation to do so4. The reason is that people have an obligation only by virtue of a rule.

Rules of obligation are distinguishable from other rules in that they are supported by great social pressure because they are felt to be necessary to maintain society5. For Hart, ‘law’ is equivalent to ‘legal system’. According to him, legal system (law) is a system of rules comprising ‘primary rules’ and ‘secondary rules’. These rules are ‘social’ in two senses: firstly, in as much as they regulate the conduct of the members of the society, i.e. they are guides to human conduct and standards of criticism of social conduct; secondly, in as much as they derive from human social practices. Apart from these rules, there are other social rules also, for example, rules of morality. The union of these two rules is the essence of his concept of law. Hart describes ‘primary rules of obligation’ as 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. On the other hand, secondary rules are those which confer power, public or private, such as the law that facilitate the making of contracts, wills, trusts, marriages, etc or which lay down rules governing the composition of powers of courts, legislatures and other officials bodies. Primary rules are concerned with actions (that individuals must do or must not do) involving physical movement or change whereas the secondary rules provide for operations which lead not merely to physical movement or change, but to the creation or variation of duties or obligations. Thus, the secondary rules are ancillary to and are concerned with the primary rules themselves. That is to say, the secondary rules specify the way in which the primary rules may be conclusively 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.

Societies with only primary rules without any legislature, courts or officials, are in a ‘pre-legal’ state and suffer from three drawbacks6. Firstly, they suffer from the defect of uncertainty, i.e. what these rules are and what is their scope. In such a society, there is no systematic procedure for resolving doubts or questions as to what these rules are and what their scope is. For the effective functioning of a legal system, the rules must be sufficiently clear and intelligible to be understood by those individuals to whom they apply. These rules do not form any system, and are merely a set of different standards without any identifying or common mark. But, this shortcoming can be met by having ‘secondary rules of recognition’ which 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. Secondly, ‘the primary rules of recognition’ suffer from the defect of being static in character. In such a society, there is no means of deliberately adapting the rules to changing circumstances, either by abolishing old rules or by introducing new ones, and no way to alter the position created by the primary rules. This shortcoming can be met by having ‘secondary rules’ providing powers to change the primary rules. These ‘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 scheme/system of legislative enactment and repeal are to be understood. ‘Secondary rules of change’ may be either very simple or very complex. Thirdly, the regime of primary rules suffers from the defect of inefficiency. In the societies with only primary rules, the rules are maintained only by diffuse social pressure and there is no agency for resolving disputes in relation to the rules, their incidence and their violations. But, 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 also 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, for it is that feature which distinguishes which things are law and which are not and also provides a means for identifying the law in a morally neutral approach. It also affords an answer to the question of when a legal system exists. The master rule of recognition is the ultimate source of a legal system – like the Austin’s sovereign7. According to Hart, a simplest version of the rule of recognition in the English system is whatever the Queen in the Parliament enacts is law. Where there is an accepted constitution, that accepted constitution is the rule of recognition. The question of the validity of law is to be answered with reference to the rule of recognition. ‘To say that a given rule is valid’ Hart states, ‘is to recognize it as passing all the tests provided by the rules of recognition. The rule of recognition is ultimate in the sense that while the validity of other rules is determined by their conformity to the criteria specified in the rule of recognition, there can be no question concerning the validity of the rule of recognition itself8. Its existence is a matter of fact and not a question of compliance with any other higher order rule. Just as Austinian sovereign does not stand in relation of habitual obedience to any other persons, so is Hart’s sovereign rule of recognition. That is to say, Hart’s sovereign rule of recognition also does not stand in relation of the rule accordance to any other legal rule. Just as, the legal validity of the Austinian sovereign is not questioned, so is the legal validity of the Hart’s rule of recognition not questioned. But, Austinian sovereign may die, whereas Hart’s rule of recognition only fades away (into disuse). Unlike Kelson’s basic grundnorm, Hart’s rule of recognition is not an extra-legal juristic hypothesis. Rather, it is a rule of positive law. It seems, he follows Kelsen in some aspects.

Hart describes the introduction of secondary rules as a ‘step from the pre-legal to legal world’9. Hart says that the primary rules of obligation are not in themselves adequate to establish a system of laws that can be formally recognized, changed, or adjudicated. Thus, secondary rules are necessary in order to provide an authoritative statement of all the primary rules; in order to allow legislators to make changes in the primary rules if the primary rules are found to be defective or inadequate; in order to enable courts to resolve disputes over the interpretation and application of the primary rules. The secondary rules of a legal system, therefore, include (1) rules of recognition, (2) rules of change, and (3) rules of adjudication. The primary rules, therefore, acquire the character of a legal system through their union with the secondary rules.

According to Hart, the primary rules must be combined with secondary rules so as to advance from the pre-legal to the legal stage of determination. Hart says that the foundations of a legal system do not consist, as Austin claims, of habits of obedience to a legally unlimited sovereign, but, instead, consist of adherence to, or acceptance of, an ultimate rule of recognition by which the validity of any primary or secondary rule may be assessed. 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 in order for a legal system to exist: (i) private citizens must generally obey the primary rules of obligation, i.e. those rules of behaviour are valid according to the system’s ultimate criteria of validity must be generally obeyed and (ii) public officials must accept the secondary rules of recognition, change, and adjudication as standards of official conduct. If both of these essentials are not satisfied, then primary rules may only be adequate to establish a pre-legal form of government.

Hart says that there is no indispensable logical connection between the content of law and morality, and that the existence of legal rights and duties may be devoid of any moral justification. Thus, his interpretation of the relation between law and morality is different from that of Ronald Dworkin, who in Law’s Empire suggests that every legal action has a moral dimension. Dworkin discards the concept of law as acceptance of conventional patterns of recognition, and describes law not merely as a descriptive concept but as an interpretive concept which combines jurisprudence and adjudication.

Unlike Austin and Kelson who rejected and ridiculed natural law, Hart’s positivism contains within it a ‘minimum content of natural law’. He has structured the concept of natural law explicitly with positivism what he calls ‘simple version of natural law’. Morality is also couched in Hart’s concept of law. This has made Hart a positivist as well as naturalist. There are some conjunctions in the Hart’s system of law where law and morality overlap and coexist, and are even complimentary and supplementary in nature. Further, his refutation of law as a gunman situation further implies the inseparable character of the relationship between law and morality. Moral and legal rules may overlap, because moral and legal obligation may be analogous in some situations. However, moral and legal obligation may also be different in some situations. 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 does not say that there is necessary conceptual or definitional connection between the legal and the moral, but he does, however, acknowledge 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. According to Hart, four features of morality are necessary for a clear picture of his concept of law. They are—(i) importance, (ii) immunity from deliberate change, (iii) voluntary character of moral offence and (iv) forms of moral pressure. An indispensable feature of a moral rule is that it is regarded as something of great importance. Hence, individuals cannot omit it. It is an attribute of a legal system that new legal rules can be introduced and the old ones can be changed or replaced by deliberate enactment. On the contrary, moral rules cannot be brought into being or eliminated in this manner. Moral responsibility is a matter of internal behaviour while law is generally concerned with external behaviour. If a person after committing an offence establishes that he did that act involuntarily, then, he is excused from the moral responsibility, and blaming him, in such a situation, would itself be considered morally wrong. Whereas, there are certain exceptions in so far as fixing legal responsibility of a lawbreaker is concerned. Lastly, in case of law, the typical form of legal pressure may consist in physical punishment or unpleasant consequences. Whereas, the characteristic feature of morality, on the other hand, is the distinguishing form of moral pressure (appeals to respect the rules and the appeals to conscience) which is wielded in its support.

Hart’s ‘internal aspect of law’ constitutes a radical break with the thought of his positivist predecessors Austin and Bentham, and also sharply differentiates his philosophy from his near-contemporary Kelson. For Kelson, there is a separate category of human thought (the ‘ought’) which is drastically distinct from ‘is’ and, therefore, from human psychology. According to Hart, normativity hinges on ‘human attitudes to human action’. 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. In pre-legal societies, it is obligatory for its members not only to obey those rules but also consciously to view them as common standards of behaviour, violation of which are to be criticized. Such criticisms being considered as legitimate both by the offender and other members. In other words, in societies with only primary rules, an internal point of view on the part of its members is necessary for the preservation of the group harmony, cohesion and solidarity. Whereas, in societies with the both the rules (legal systems), however, it is not necessary for the members to possess an internal point of view; it is enough if the officials of the legal system have this view. Nonetheless, it is desirable that citizens, in such a society, also experience it. Hart’s explanation of social rules is, therefore, dependent on a hermeneutic approach which is concerned with understanding the importance of human actions to those who do them and with how they interpret the actions of others. Hart brings in the internal aspect of law to distinguish ‘rules’ from ‘habits’. In contrast with Austin who stresses on habit, Hart denies the possibility of explaining rules solely by reference to external patterns of behaviour.

Hart describes International Law as problematic, for it may not have all of the elements of a fully-developed legal system. In some cases, International Law may be short of secondary rules of recognition, change, and adjudication. Secondly, International legislatures may not always have the power to enforce sanctions against nations who violate International law. Thirdly, International courts may not necessarily have jurisdiction over each and every legal dispute between nations. Fourthly, International Law may be disrespected by some nations who may not face any significant pressure to comply with.

In any legal system, there may be cases in which existing laws are vague or indeterminate and that judicial discretion may be necessary in order to interpret and spell out existing laws in such cases. Hart declares that by interpreting and expounding vague or indeterminate laws, judges may actually make new laws.

Hart’s concept of law as a combination of primary and secondary rules , his exclusion of morals from law as it is, and his model of positivism centered around the rule of recognition have been criticized by many jurists. In Hart’s concept, the distinction between a legal and a pre-legal condition is not at all clear. Hart says that in pre-legal societies ‘we must wait and see whether a rule gets accepted as a rule or not’ -- this further raises a question - When do we know the category of a given society, and when do we know that there is a rule of recognition? This rule is not a hypothesis, but a rule of positive law and, consequently, its own validity cannot relate to itself.

The rule of recognition is clustered under powers as a secondary rule, but it looks more like the acceptance of a special kind of rule than a power. Moreover, there appear to be some rules of recognition which are not powers, such as those which indicate the criteria to be applied , for example constitutive rules of procedure. Raz has suggested that the rule of recognition is not a power, a duty addressed to officials10. Hart articulates that acceptance of a rule of recognition rests on social facts, but he does not concern himself with the reasons why, or the circumstances in which it comes to be accepted. Social and moral considerations may well set limits on a rule of recognition at the time of acceptance so that it may have built-in limitations that provide safeguards against certain abuses of power11.

Prof Ronald Dworkin,a renowned lawyer and political philosopher, was one of the chief Hart's critics who in the 1970s and 80s mounted a series of challenges to Hart's Concept of Law. It appears, as if, Hart let these challenges go unanswered until, after his death in 1992, his answer to Dworkin's criticism was discovered among his papers. Criticizing Hart’s version of law as a set of rules, Dworkin poses a question – Is law merely a system of rules on which Hart has based his model of positivism? Dworkin argues that in a legal system there are other things besides rules, for he says that a legal system cannot be conceived merely as a code of rules. Thus, Dworkin makes a differentiation between a rule and a principle, and articulates that a legal system has to be conceived as an institution based on certain standards, principles and policies. According to Dworkin, the conception of law as a system of rules fails to take account of what he calls ‘principle’. A question that naturally arises is: What is the difference between a rule and a principle? Rules are thought as detailed while principles are general. Principles are broad reasons that lie at the foundation of a rule of law; they are wide formulations of reason or generalizations which underlie and comprehend particular rules. The principles are wider than rules and the rules are categorical precepts attaching a definite, distinct and detailed legal effect; they are more specific and detailed than principles. Dworkin says that the distinction between a principle and a rule is a logical one. Both points to particular direction about legal obligation in particular circumstances, however, they differ in the character of the discretion they give. Rules are applicable in all-or-no fashion, principles state ‘a reason that argues in one direction but do not necessitate a particular decision. Principles are a matter of more or less while rules are a matter of yes or no. All that is meant, when it is said that a particular principle is a principle of law, is that the principle is one which officials must take into account, if it is relevant, as a consideration inclining in one direction or another. A principle has a dimension of weight or importance which a rule does not have. Rules, by contrast, are functionally significant. Principles may conflict. If rules conflict, a further rule will be needed to regulate the clash. The force of a principle may become attenuated over a period of time; its strength may become eroded. This is not so with rules.

Hart’s view that the judges have the discretion to create new legal rules through extra legal standards when the existing law is not ascertainable and provides no guidance to the judge to apply the law to certain situation, has been criticized by Dworkin. Rejecting this view, Dworkin says that a judge has a duty to appeal to certain principles and not to others on the appropriate occasions and hence involves discretion in a weak sense.

Hart’s concept of law as a combination of primary and secondary rules can be criticized on the ground of fluid and imprecise distinction between these rules, for the same rule may create a power plus a duty to exercise it or a power plus a duty not to exercise it. Professor Lon L Fuller instances a situation where the same rule may confer power and duty, or power or duty according to the circumstances12. A trust instrument may give the beneficiary the power to transfer the estate to himself on some condition. The trustee is, certainly, entitled to reimbursement out of the estate and has the power to reimburse himself, correlative to the liability in the beneficiary to have the estate reduced in this way. If, however, the beneficiary exercises his power on the occurrence of the condition but before the trustee has reimbursed himself, the beneficiary comes under a duty to reimburse him13. Fuller poses a question: Which is the rule creating the power and which is the rule creating the duty? In fact, the distinction lies not in the rule, but in the circumstances. Certain rules are neither power conferring nor duty imposing; for example, a rule that abolishes one’s duty on the occurrence of some event, say discharge of a contract by frustration or novation. Further, there may be duty creating secondary rules, for example, a rule requiring a Government to change a law on a referendum, or the duty of a judge to hear a case, etc.

Hart has spoken of ‘the acceptable proposition that some shared morality is essential to the existence of any society’14. ‘Existence of any society’ must connote ‘continued existence’, and he does admit that a ‘minimum morality’ is an essential part of every community. This minimum morality is rooted in five facts: human vulnerability, approximate equality, limited altruism, limited resources and limited understanding and strength of will15. As a positivist, he keeps out morality from his concept of law. His concept, nonetheless, is of a ‘legal system’ which is a continued phenomenon, and he does concede that some morality is essential to the continued existence of a society. Dias poses a question: Is a distinction being drawn between the continued existence of society, for which some morality at least is essential, and the continued existence of a legal system? This cannot be, for while a community (a moral system) could exist without a legal system, but a legal system presupposes a community. The relation between morals and a legal system is that the latter only develops within and around the morality of a community. It is suggested that underlying all these is a confusion of time-frames. There is no disagreement in saying that an immoral precept is ‘law’ here and now and also that its immoral quality is likely to prove fatal to its continuity. When Hart thinks in a continuum, as he does with society, he has to bring in morality; but in order to defend positivism, he shifts ground and takes refuge in the present time-frame, for only in this way he can justify the exclusion of morality for the purpose of identifying laws here and now16. Thus, there appears to be a greater separation between his concept of Law and his positivism than ever he alleges between law and morality.

In the second revised edition, Hart presents an Epilogue in which he answers Dworkin and some of his other most influential critics including Fuller and Finnis. By this epilogue, which was discovered only after his death, he defends his work against his critics and re-examines the foundations of his philosophy. With the same clarity and candor, for which the first edition is famous, the Epilogue offers a sharper interpretation of Hart's own views, rebuffs the arguments of critics like Dworkin, and strongly asserts that they have based their criticisms on a faulty understanding of Hart's work. Hart demonstrates that Dworkin's views are in fact noticeably analogous to his own. In a final analysis, Hart’s reply leaves Dworkin's criticisms considerably weakened and his positions largely in question.


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