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Over the last century, the study of jurisprudence had been filled with various debates on what is law and its relationship with morality. The former, according to Hart, were met with many literatures. The latter too were not short of academic contributions. These debates have not only enriched the study of jurisprudence, they also have an impact on our society as a whole. As Green rightly puts it, “we need such a theory, not to help decide cases or defend clients, but to understand ourselves, our culture, and our institutions, and to promote serious moral assessment of those institutions, and to promote serious moral assessment of those institutions, an assessment that must always take into account the conflicting realities of life”.
Central to these debates is the legal positivism theory. Legal positivism “is a whole tradition of thought, spanning over two centuries, comprised of numerous contributions that often diverge, sometimes even conflict, on key issues”. As advanced by Marmor, and will be adopted in this essay, there are three theses which stand in the heart of the positivists’ theory. The first thesis, in the words of Kelsen, is that law is an “instrument of social control”. Laws are rules which compel on individuals to perform, or forbid them from performing, an action. For instance, criminal law prohibits an individual from injuring another by way of punishment and by the order of specific performance, contract law will impose on parties to a contract to perform what they have promised to do under the contract.
Secondly, “law is a social phenomenon, it is a social institution, and therefore, what the law is, is basically a matter of social facts”. This is in line with the propositions by the early positivists such as John Austin, who stated that “the existence of law is one thing; its merit or demerit is another”. Supporters of this thesis are concerned with whether or not the law exists, viz. whether or not the relevant authorities recognize the law, rather than whether the law is good or bad. The third thesis is that of separation thesis which, which was put forward by Professor HLA Hart. The separation thesis distinguishes law and morality. As Hart formulated, “it is in no sense a necessary truth that laws reproduce or satisfy certain demands of morality, though in fact they have often done so”. Thus, what is morally wrong can still be legally right. For instance, the Civil Partnership Act 2004 recognized homosexuality as legally right but there are certain sections of the society who believe that it is morally wrong. Homosexuals, however, will not be punished by the law as their actions are legally valid and accepted.
There were, and still are, many contentions for and against Hart’s thesis in the last few decades. One such argument is that Hart’s account of the fundamental aspects of the legal system is flawed and over-reliant on a specious conception of the relationship between social and legal rules. The validity of this argument will be examined in this essay. This will be done by first exploring the legal positivism theory propounded by earlier positivists such as Jeremy Bentham and John Austin, whom Hart’s idea was based on, followed by discussion of Hart’s modified version of the theory and responses by prominent figures to Hart’s approach. The brief discussions in the preceding paragraphs show that Hart has brought in social elements into his account of the legal system. As will become apparent, the fundamental aspects of his theory relied upon social rules. Furthermore, it is submitted that some of his description of these rules are flawed. Instead of his theory being flawed, it is thus submitted that his account of the fundamental aspects of the legal system relies substantially on the social and legal rules but it is not completely flawed. Rather, for certain ambiguities in the key aspects of his theory, it does not command as much authority.
Classical Legal Positivism
Although legal positivism can be traced back to the earlier political philosophers such as Thomas Hobbes and David Hume, legal positivism were founded on the literatures of Jeremy Bentham, whom Austin’s theory was based and developed. As Hart expressly took his main predecessors to be Jeremy Bentham and John Austin, it will be of great value to delve into the theories expounded by both these positivists.
Bentham, in Hart’s words, is a jurist with “extraordinary combination of a fly’s eye for detail, with an eagle’s eye for illuminating generalizations”. Wacks further advanced that Bentham has “devoted himself to exposing what he saw as the shibboleths of his age and constructing a comprehensive theory of, inter alia, law, logic, politics, and psychology, founded on the principle of utility”. A founder of legal positivism, Bentham attacked the common law system which embodied natural reason. He was quoted as saying “the only determinate, concrete content that can be given to natural law or reason is entirely private and subjective because of the abstractness of these notions… they offer no public shared standards for assessment of rules, law, actions, or decisions”. The doctrine of precedent, in Bentham’s words, was ‘dog law’ as “whenever your dog does anything you want to break him of, you wait till he does it, and then beat him for it”. Bentham continued that such law, based on legal fictions, ‘equity’ and ‘natural law’, is vague and uncertain as “it cannot provide a reliable, public standard which can reasonably be expected to guide behavior”. Furthermore, the courts are not sufficiently accessible, for the language they use is not comprehensible to ordinary person. As such, Bentham suggested that the law should be codified.
According to Bix, Austin “came under the influence of Jeremy Bentham, and… he was arguably the first writer to approach the theory of law analytically”. Like Bentham, as Wacks stated, “Austin’s conception of law is based on the idea of commands or imperatives, though he provides a less complex account of what they are”. Throughout Austin’s work, despite his scope narrower and more objective than Bentham’s, he retained Bentham’s emphasis on the separation between what the law ‘is’ and what the law ‘ought to be’, and thus the separation between law and morality. Taking Austin’s ‘Command Theory’, which remains the central tenet of Austin’s theory, he asserts that the notion of law lies to the command given by the sovereign. Arguably, this was borrowed from Bentham, who views the law as “the command of a sovereign backed by a sanction”.
Although there are much similarity between the theses of Austin and Bentham, there are a number of significant differences. As Morison rightly puts it, “Austin wished himself to construct a science of law rather than involve himself in Bentham’s art of legislation”. Unlike Austin, Bentham proposes for “a single, complete law which adequately expresses the will of the legislature”. Also, Austin is willing to accept judicial law-making which was vehemently opposed by Bentham as stated above. More importantly, their views differ on the ‘Command Theory’ expounded by Austin.
For Austin, as Wacks correctly pointed out, “anything that is not a command is no law and only commands emanating from the sovereign are ‘positive laws’”. Bentham, on the other hand, however, argues that “commands are merely one of four methods by which the sovereign enacts law”. Wacks continued, “[Bentham] distinguished between laws which command or prohibit certain conduct (imperative laws) and those which permit certain conduct (permissive laws)”. Hart gave examples of each of Bentham’s methods:
- Command: ‘Shut the door!’
- Non-command: ‘You may refrain from shutting the door!’
- Prohibition: ‘Do not shut the door!’
- Non-prohibition: ‘You may shut the door!’
Another essential element of Austin’s theory is that of sanction. Sanction was defined by Austin as “an evil to… be incurred by [the failure to comply with the wishes of the sovereign”. As such, a command includes the expression of the sovereign’s wishes followed by a sanction. Bentham, however, “is willing to concede that a sovereign’s commands would constitute law even in the absence of sanctions in the Austinian sense”. For Bentham, “law includes both punishments and rewards”. Also different is the definition of sovereignty. Austin defines sovereignty that “if a determinate human superior, not in a habit of obedience to a like superior, receive habitual obedience from the bulk of a given society, that determinate superior is sovereign in that society, and the society is a society political and independent”. Unlike Austin who emphasized on “the illimitability and indivisibility of the sovereign, Bentham acknowledges that the supreme legislative power may be both limited and divided”.
Hart condemned Austin’s formulation of the concept of law. Whilst Austin claims that all laws are ‘coercive orders’ that impose duties or obligations on individuals, “surely not all laws order people to do or not to do things”. In Hart’s view, law may instead confer powers or privileges. Also, Hart criticized Austin’s account of sovereignty that “the whole conception of a supreme and independent sovereign habitually obeyed… is misleading, since there little in any actual legal system which corresponds to it”. Hart points out that the laws may apply to individuals who made them and not only to other individuals and for instance, “the supreme legislature of the Soviet Union is not in the habit of obeying the Queen in Parliament”.
These pitfalls and criticisms had led Hart to devise an entirely new basis for positivism, which he began by distinguishing primary and secondary rules. Primary rules that impose duties or obligations on individuals which involve “physical movement or changes”. Secondary rules, as Hart stated, “are in a sense parasitic upon or secondary to the first; for they… introduce new rules of the primary type, extinguish or modify old ones, or in various ways determine their incidence or control their operations… which lead not merely to physical movement or change, but to the creation or variation of duties or obligations”. In essence, it is Hart’s proposition of secondary rules, which have also been termed ‘rules of recognition’, that refines Bentham’s and Austin’s conceptions of law. This ‘rules of recognition’ will be further discussed in the following section.
As mentioned above, Hart’s theory is developed from the theories propounded by Bentham and Austin. Standing at the heart of Hart’s theory is his assertion that “the most prominent general feature of law at all times and places is that its existence means that certain kinds of human conduct are no longer optional but in some sense, obligatory”. According to Hart, his theory aims to provide “an improved analysis of the distinctive structure of a municipal legal system and a better understanding of the resemblances and differences between law, coercion, and morality, as types of social phenomena”. By employing the word ‘improved’, it is evident that Hart is building on the positivists’ theses before him. However, some commentators such as McCoubrey argue that Hart’s theory should be seen as “a distinct account of jurisprudential character of positive law”. As such, Hart’s positivism has also been referred to as ‘modified positivism’.
Albeit Hart’s ‘modified positivism’ can be distinguished from the classical positivism in certain ways, Hart agrees with “earlier legal positivists, specifically with the nineteenth century jurist John Austin, on two points”. First, Hart agrees to begin his analysis of the theory of law by “appreciation of the fact that where there is law, there human conduct is made in some sense non-optional or obligatory”. Second, Hart stood by Bentham, refusing to admit a connection between law and morality. In Hart’s words, “though there are many different contingent connections between law and morality there are no necessary conceptual connections between the content of law and morality”. In his support for Bentham’s separation of laws and morals, he proposed the ‘Separability Thesis’, which remains a central fort of his theory. The ‘Separability Thesis’ referred to the separation of law and morality. Kenneth Himma stated that “this abstract formulation can be interpreted in a number of ways”. On one hand, extreme positivists like Faber argue that the definition of law should be completely free from morality, rejecting any moral consideration related to the concept of law, legal validity and legal system. On the other hand, soft positivists like Hart believe that whilst law does not necessary “reproduce or satisfy demands of morality, in fact they have often done so”. As Hart describes, although “a legal system must exhibit some specific conformity with morality or justice, or must rest on a widely diffused conviction that there is a moral obligation to obey it…, [it does not follow that] the criteria of legal validity of particular laws used in a legal system must include, tacitly if not explicitly, a reference to morality or justice”.
Unlike previous classical positivists, however, Hart emphasised on ‘social phenomena’. In his influential The Concept of Law, his theory was equipped with the social element which his predecessors ignored. He stated that “there are certain rules of conduct which any social organization must contain if it is to be viable”. He continued, “such universally recognised principles of conduct which have a basis in elementary truths concerning human beings, their natural environment, and aims, may be considered the minimum content of Natural law”. He points out that without this ‘minimum content of natural law’, “laws and morals could not forward the minimum purpose of survival which men have in associating with each other”. Thus, “men, as they are, would have no reason for obeying voluntarily any rules”. However, as Wacks stated, “Hart is not saying that law is derived from morals or that there is a necessary conceptual relationship between the two”. This is evident from Hart’s own analysis that “sometimes the claim that there is a necessary connection between law and morality comes to no more than the assertion that a good legal system must conform at certain points…, to the requirements of justice and morality”.
Another proposition put forward by Hart is that law, as he sees it, is a system of rules. This includes obligation rules which impose duties or obligations. Obligation rules, as Wacks observed, can be separated into moral rules and legal rules. As mentioned in the preceding section, when Hart attempted to refine the classical positivism theory, he distinguishes legal rules between primary rules and secondary rules. According to Hart, many primary rules are also social rules. As presented in the last paragraph, many people are adhering to the law for the function and success of the society. Thus, it is arguable that these social rules carry a moral duty to observe the law. Nonetheless, Hart is opposed to the idea that such moral obligations have made them laws. Rather, these primary rules must be combined with the secondary rules, which “specify the ways in which the primary rules may be conclusively ascertained, introduced, eliminated, varied, and the fact of their violation conclusively determined”, to be social rules laws properly so called. From this, it is evident that Hart do rely on social rules in the formulation of his theory.
However, as Hart identified, there are three defects with primary rules in the simplest form of social structure. Firstly, of the defect which Hart termed as ‘uncertainty’, primary rules by itself do not provide procedure to resolve doubts arose as a result of uncertainty over what the rules are and the scope of the rules. The second defect arose a result of the rules’ ‘static’ character, where “there will be no means, in such a society, of deliberately adapting the rules to changing circumstances”. The third defect “is the inefficiency of the diffuse social pressure by which rules are maintained”. The final defect arises when despite efforts to catch and punish offenders, there is an “absence of an official monopoly of ‘sanctions’”. These defects led Hart to propose the secondary rules, consisting of rules of recognition, rules of change, and rules of adjudication, to supplement the primary rules and thus resolving these defects.
On the defect of ‘uncertainty’, Hart stated that it should be remedied by a ‘rule of recognition’, which “will specify some feature or features possession of which by a suggested rule is taken as a conclusive affirmative indication that is a rule of the group to be supported by the social pressure it exerts”. In classical era, this may mean “an authoritative list or text of the rules… in a written document or carved on some public monument”; in modern days, the list may refer to “some general characteristics possessed by the primary rules”. Hart then went on to introduce the ‘rules of change’ to remedy the ‘static’ defect. In Hart’s words, “the simplest form of such a rule is that which empowers an individual or body of persons to introduce new primary rules for the conduct of the life of the group, or of some class within it, and to eliminate old rules”. This can be seen from the legislature, or parliament, which legislate law such as the Civil Partnership Act 2004 when people are more comfortable now with homosexuality. Hart explained that “there will be a very close connection between the rules of change and the rules of recognition: for where the former exists the latter will necessarily incorporate a reference to legislation as an identifying feature of the rules”. Finally, the defect of ‘inefficiency’ was countered by the ‘rules of adjudication’. This means that individuals will be empowered to “make authoritative determinations of the question whether, on a particular occasion, a primary rule has been broken”. Again, the ‘rules’ of adjudication’ has very close links with the ‘rules of recognition’ for “the rule which confers jurisdiction will also be a rule of recognition, identifying the primary rules through the judgments of the courts”. As such, the concept of ‘rules of recognition’ is, in Hart’s theory, vital to the existence of a legal system.
This important concept was expressly admitted by Hart as a social rule. Considering that several elements of his theory are formed from the ‘rules of recognition’, it can be said that Hart’s theory relies heavily on the social rules. Also, as Coleman rightly pointed out, “the rule of recognition comes into existence as a rule that regulates behaviour only if it is practised”. However, she commented, this feature “falls out of the fact that the rule of recognition is a social or conventional rule”. It is thus submitted that Hart’s theory could possibly be flawed, or at least not commanding as much authority, for “the ambiguity in the meaning of the rule of recognition”.
Also, it is submitted that Hart’s description of social rules is defective. He sets out three requirements for a social rule. For one, he emphasised on the “importance or seriousness of social pressure behind” the social rules, as they are “the primary factor determining whether they are thought of as giving rise to obligations”. Secondly, “the rules supported by this serious pressure are thought important because they are believed to be necessary to the maintenance of social life or some highly priced feature of it”. The third element of Hart’s social rules is that they “characteristically [involve] sacrifice or renunciation”. However, there are actual laws in many, if not all, jurisdictions which do not fulfil all three of Hart’s criteria for a social rule. Also, it is possible for rules which fulfil all three of Hart’s elements but not the legal requirements if legality or the naturalists’ requirements of morality. Hence, Hart’s concept of social rules could be flawed, in the sense that it does not add any value to the study of jurisprudence.
An Analysis of Hart’s Theory
As Green rightly puts it, “perhaps it is not too much to say that Hart’s writings and teaching made the haphazard jumble of English jurisprudence into a real subject. In the period that followed, and especially in the last 25 years, an avalanche of specialized books, journals, articles, dictionaries, handbooks, websites and conferences have turned that subject into a discipline”. Just as much as the criticisms formed of Hart’s theory, there are equivalent supports for his works. Evidenced by discussions in the preceding section, there are three points central to Hart’s theory. Firstly, he proposed the union of primary and secondary rules. It is submitted that, as demonstrated, secondary rules, in particular the rules of recognition, are a social rule. Throughout Hart’s analysis in his The Concept of Law, he had repeatedly discussed the rule of recognition and its effects on his theory as a whole. It is thus evident that rules of recognition formed the second central canon of Hart’s theory. Thirdly, as a positivist, Hart emphasized on the ‘separability thesis’. He does not reject the connection between laws and morals, but he argued that there is no necessary connection between the two. In the light of the substantial debates over these few points made by Hart, it will be discussed whether or not Hart’s theory is flawed and if so, whether or not his theory has overly relied on the relationships between social and legal rules.
- Union of Primary Rules and Secondary Rules
As demonstrated, Hart believes that law is a system of rules and accordingly, he suggested that the defects of primary rules be remedied by the rules of recognition, rules of change and rules of adjudication. An extensive challenge was posted by Dworkin. Dworkin has been long known for his extensive criticisms on Hart’s theory, one of which argues that law is different from Hart’s system of rules, rather law is based on principles. He argued that in terms of adjudication, judges do not decide merely base on Hart’s secondary rules, rather they decide base on the resources and answers available to them. In Dworkin’s words, “they develop, in response to their own convictions and instincts, working theories about the best interpretation of their responsibilities under that practice”. This includes their subjective opinions, moral factors considered, and the general society’s opinions and their morality. Dworkin cited the example of Riggs v Palmer to support his argument that law is instead based on principles. The court has to decide whether or not a man who murdered his grandfather could inherit under his grandfather’s will. As Himma observed, on Hart’s view, “while the judge might always be bound pre-existing legal standards, those standards do not always dictate a correct decision; and when they don’t, the judge’s decision involves the exercise of discretion in the weak sense that it results in the creation of new legal content”. Dworkin, however, stated that in the case the court “had expressly decided the issue either way, so lawyers using the word “law” properly according to positivism would have agreed there was no law to discover”. Instead, the court followed the ‘principle’ that no one should profit from his own wrong, “so the statute of wills should be read to deny inheritance to someone who has murdered to obtain it”. As such, as opposed to Hart’s idea that law is based on rules, it is instead based on principles as Dworkin suggested. Dworkin argues that unlike rules which only necessitate certain outcomes, principles only suggest such outcomes. To remedy the problem in Hart’s theory, Dworkin proposed his view of ‘law as integrity’. This concept is “a legislative principle, which asks lawmakers to try to make the total set of laws morally coherent, and an adjudicative principle, which instructs that the law be seen as coherent in that way, so far as possible”. It is thus clear that Hart has neglected the important aspects of which the law operates on in reality, where Dworkin’s ‘principles’ arguably apply. Hart’s theory also lack the coherence pointed out in Dworkin’s suggestion. Dworkin’s suggestions, however, were not received without grudges. Himma for one is not convinced, stating that “as far as I can see, the difficulties facing his theory, if construed as a descriptive rival to positivism’s account of the criteria of validity, leave no other viable alternative.” Yet, without the crucial aspects pointed out by Dworkin, it is submitted that Hart’s theory is likely to be flawed or at least, even if Dworkin’s suggestions are problematic, Hart’s theory should not deserve the authority it has.
- Rules of Recognition: An Over-reliance on the Social and Legal Rules?
‘Rules of recognition’ is, arguably, Hart’s strongest point made in his theory. However, it is also this concept which was heavily debated by not only non-positivists, but as well as positivists including his disciple, Joseph Raz- whom Green remarked “the hard times on which each of these Hartian ideas has fallen are due no small part to the power of Raz’s criticisms”. One of the main weaknesses in Hart’s ‘rules of recognition’ is not because of the concept expounded, but Hart’s mistake in linking it to legal validity. As Marmor pointed out, “the idea that there are, as a matter of social fact, rules of recognition had not been the main worry of Hart’s critics for quite some time. It was the further, conceptual thesis of Hart and other legal positivists that engendered the main controversies, namely that the concept of legal validity is exhausted by the reference to the rules of recognition”. Hart, however, contended that his critics misunderstood the function of the rule stating that they wrongly “assumes that the rule is meant to determine completely the legal result in particular cases, so that any legal issue arising in any case could simply be solved by mere appeal to the criteria or tests provided by the rule”. He insisted that “the practice theory rules is fully applicable” to the rule of recognition, viz. relying on the courts and practice to identify the law (the institutional criteria). On the other hand, Raz, a disciple of Hart, advocated for the ‘sources thesis’ which proposes that “all law is sourced based” whereby the existence and the content of the law can be identified by referring only to social facts. To this, Raz stated that his ‘sources thesis’, which is stronger than Hart’s, “provide public ascertainable standards by which members of the society are held to be bound so that they cannot excuse non-conformity by challenging the justification of the standard”. The application of Raz’s ‘sources thesis’ will also gives the court the discretion to apply moral considerations when required. Lee stated, “The Concept of Law received bad reviews but has been rescued by later interpreters such a MacCormick and Raz”. Lee is right because Hart’s institutional criteria do not tell us whether or not certain conduct is legally valid, or legally right. In Dickinson’s words, “there are no criteria of validity pertaining to the rule of recognition itself”. Furthermore, as demonstrated, Hart views the rule recognition as a social rule. He conceded that “rules are conventional social practices if the general conformity of a group to them is part of the reasons which its individual members have for acceptance (own emphasis added)”. However, it was pointed out that there was no reason, legal and non-legal, for officials to accept the rules of recognition introduced by Hart. Hart believes that there is legal reason only if the rule is legally valid, but as shown above the rule of recognition is not legally valid. Neither is there non-legal reason as Hart believes that the features of law could be adequately dealt with “without delving into the issue of what, if any, further non-legal reasons officials have for such acceptance”. As such, it is submitted that Hart’s account of the fundamental aspects of the legal system thus created the problem of uncertainty, which the rule of recognition was intended to solve. Arguably, that gap was filled by his disciple, Raz, but Hart’s theory on its own, it is submitted is thus flawed or should not command as much authority as it carries.
(c)Law and Morality: No Necessary Connection?
The debate over the relationship of law and morality is a classic one in the study of jurisprudence. On one hand, positivists believe that law and moral are separated. Naturalists, on the other hand, argue a close connection between law and morality. Hart took the middle line. As Himma observed, “on Hart’s view, it is conceptually possible for a legal system to have a rule of recognition that incorporates moral norms”. Hart wrote:
“In some system, as in the United States, the ultimate criteria of legal validity explicitly incorporate principles of justice or substantive moral values; in other systems, as in England, where there are no formal restrictions on the competence of the supreme legislature, its legislation may yet no less scrupulously conform to justice or morality… No ‘positivist’ could deny that these are facts, or that the stability the legal systems depends in part upon such types of correspondence with morals. If this is what is meant by the necessary connection of law and morals, its existence should be conceded”
Some commentators, however, are not satisfied with Hart’s approach. For instance, Orrego argues that “Hart finds a confusion of meanings in the expression ‘theory of natural law’”. Hart’s recognition of the connection between law and morals has arguably relieves the tension between positivists and naturalists. In Epstein’s words, “Hart used the phrase ‘minimum content of natural law’ to smooth over the perennial tension between legal positivism and natural law, on which Hart had already had his famous debate with Lon Fuller”. Hard positivists like Raz and Shapiro, however, reject such notion of incorporation of morality into legal validity. Raz’s argument is recited by Priel as follow:
“(1) Law either is an authority or is (wrongly) taken by those subject to it as an authority.
(2) For something to be an authority or be considered an authority it must claim authority.
(3) Anything that claims authority must purport to replace the reasons for action those subject to the authority have with other reasons. Thus authoritative reasons are reasons not to act on certain reasons (i.e. they are exclusionary reasons) coupled with new reasons for action.
(4) Since law claims authority it must purport to provide exclusionary reasons (from (2) and (3)).
(5) When law incorporates morality, the law does not provide exclusionary reasons for action, because it does not replace the first-order moral reasons that apply to an agent, only tells the agent to act on the first-order reasons the agent should act on anyway.
(6) Therefore when law incorporates morality, law does not (in those instances) claim authority (from (3) and (5)).
(7) But (6) contradicts (4).
(8) Since (4) (and (1)-(3) from which it derives) are conceptual truths about law they cannot be dropped. So to resolve the contradiction we drop (5).
Hence: (9) It is never the case that law incorporates morality (from (8)). ”
Though Raz’s argument is sound, it is submitted that Hart’s proposition is a more accurate description of the relationship between law and morality. Nevertheless, it does not mean that Hart’s proposition is correct. As Dworkin pointed out, “a particular conception of law may nevertheless make the question of what rights and duties do follow from past political decisions depend in some way on popular morality as well as on the explicit content of those decisions”. Hart, however, i
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