Introduction
This paper seeks to discuss the statement that H.L.A. Hart’s theory of law has been subjected to many criticisms and refinements but its central features can still be accepted. This paper argues that there is the basis to some of central features of Hart’s theory of law and their effects can still be observed and legal systems are still benefitting from the same.
Analysis and Discussion
What is HLA Hart’s theory of law? Is there basis for claims made?
HLA Hart’s theory is simply expressed as legal positivism, which the author has explained in his book Concept of Law as first published in 1961[1]. In the book, Hart analyzed the relation between law, coercion, morality, and attempted to clarify the question of whether all laws may be properly conceptualized as coercive orders or as moral commands. Hart dismissed any rationally essential connection of law and coercion as well as morality and law. He argued that classifying all laws to be moral commands or orders and coerce would generalize the relation of law from morality and coercion. He further took the position that such conceiving of all to be orders to be obeyed would result in misguiding appearance of various kinds of laws to look uniformly and under which said law may present under dissimilar manner of social functions. Hart asserted that telling all laws as moral imperatives amounts to changing the purpose and function of some laws and misinterpreting their content.[2]
It can be asserted that the central features of the legal theory lies in maintaining the proper definition of theory or concept of law and avoiding unnecessary equation of the same under concepts of coercive power and morality. Should such misconstruction or misunderstanding happen of two separate rules, one could just imagine the dangerous implications. Hart, in fact also noted that misunderstand the relationships could cause misunderstanding of the mode of origin of the law or the intension under which the law was enacted and necessarily range of application. If these things happen, it would be in effect having a law that was meant for something but because of wrong premises of because of equating moral command with legal orders, the law has become ineffective and will not accomplish its purpose.
Every law that is passed has it defined purpose intended by the lawmaker and to misconstrue the same would be violating the purpose of the lawmaker.
According to Hart, laws are rules that may prohibit individuals to perform various actions or that may compel various duties on individuals. Laws forces people to endure some chastisement if the cause injury to people. They may also spell out how contracts are to be created and arranged[3], the manner of putting elected representatives and the operation of the courts. This could be evident in term of the wording of a constitution of a nation of the world especially those under democratic form like the United States. The same law may provide how new laws are to be made and how old laws are to be amended or repealed. They may set forth coercion over persons by imposing penalties on noncompliant individuals with appropriate duties and obligations. However, not all laws may be considered as coercive orders, since some laws may just grant powers or privileges on individuals without requiring some duties or obligations from them.
There is basis to the claim that not all laws are coercive since those conferring privileges may be declined by the intended recipient. To provide an example of such grant of power, it may be proper to the power of the Chief Executive or President of the US to execute the laws.
Although it is the duty of the President to execute the laws because he is given the power under the US constitution, none can be used to justify if the president will not implement a certain law zealously in the meantime. Of course he may opt to have the law amended but that still qualifies the true nature of all law that they need not all be coercive orders.
The concept of law formulation in Province of Jurisprudence Determined by John Austin (1832) which asserted that all laws are commands of a legally unlimited sovereign cannot be simply accepted by Hart. That all laws are coercive orders that impose duties or obligations on individuals cannot always be true to Hart because applying the laws to individuals who enact them and not merely to individuals would change the picture. He also cited the presence of laws that just provide powers and privileges and therefore these are not coercive. [4]These powers and privileges may in fact be refused to persons bestowed.
There is basis to sustain the position of Hart that every law coerces every one that is subject to it. This could be appreciated in the US constitution where the different powers of the branches of government are defined and which conferred the powers and privileges of offices and the officials who will occupy the position.
To assume that everything is obligatory would be limiting the essence of power in those that should be exercising the same. To demand responsibility there could be chance to withhold in applying the power because the exercise of its may entail consequences.
The grant of privilege may be seen in grant of state funeral[5] of a certain government official in case of death but since the official cannot make a choice if the same should be accepted and only the family of the dead official can do so. So that if the family of the dead will refuse the privilege, the government cannot force the grant of the same and therefore the law in such sense is not coercive or cannot be considered as moral commands.
What may be some of the criticisms and/or refinements of Hart’s theory of law?
The statement being analyzed obviously presupposes the existence of some criticisms and or refinement on Hart’s legal theory. This paper however limits itself to the issue of prevalence of judicial activism as one criticism of the theory. Legal positivism is said to ignore the important question of judicial decision making where. The concept of judicial legislation is premised on the legal theory that law making should belong only one legislative branch of government pursuant to the concept of separation of powers. As would be discussed later on, however, there is the concept of secondary rules as suggested by Hart that should complement primary rules in case of the latter’s insufficiency.
However, part of this legal theory is the theory of adjudication which was greatly attacked by the realists on the ground of its weakness. The issue could be felt strongest in the United States where the Supreme Court has produced the power to declare legislation violative of constitution. This judicial power or such activism was reported have expanded after the civil war became more widespread following the of Bill of Rights to the said constitution.[6] If one would have the patience to check the US Constitution, it was the same constitution which provided the power to interpret the law. Thus, as far as this researcher is concerned, the legal theory of Hart may have actually explained the same that the secondary rules complement the primary rules in case of the latter’s insufficiency.
What are some of its central features?
Hart’s theory of law is found in explained in the book: Concept of Law. Hart did criticized Austin’s theory of law that every law is the command of the sovereign backed by the threat of punishment. As already explained earlier, there are reasons to retain as acceptable and useful some part of the critiques as those arguing that there are laws that are not coercive in character like those that merely grants power or privilege.
Another central feature of Hart’s theory of law is the need to distinguish between primary and secondary legal rules. The first or primarily rule will generally govern conduct of subjects and a secondary rule permits the proper authority to creation, alter or make extinct the primarily rules. There are good arguments that will be addressed here and which can be worth retaining on matter of understanding and crafting of future laws.
Hart has also provided a distinction between the internal and external points of view of law and rules and the same can be considered as central feature. [7]
Another central feature is the principle of rule recognition that delineates norms among authority holders and those subject to authority under a shared rule.[8]
Why the central features still are still accepted may be noted from the notable points that can be told from these features? Critique of Austin’s Theory of Sovereign.
In criticizing Austin, Hart posited that foundation of a legal system do not consist of habits of obedience to a legally unlimited sovereign, but in adhering or in acceding to rule of recognition and allow evaluation of any rule – either primary or secondary.[9] Meeting the decisive factors required by the definitive rule of recognition, a primary rule or secondary rule then qualifies for legal validity.
It can be shown that Austin’s positive theories may appear to have the goal to replace normative with descriptive terms in theory of law. What he attempted was therefore a definition of law but part from the need for the evaluation of the law. There is basis to regard command theory was a dramatic malfunction on the premise that a number of positive theories took that of Kelsen by positing instead an autonomous territory of legal remedy. Although Kelsen’s basic norm was chiefly a ceremonial one, Hart followed Kelsen rather unsurprisingly but Hart’s legal theory targeted on Dworkin’s attacks in part.[10] Hart was considered a for the most part good positivist that may have taken some points after soundly criticizing earlier positive theory. His work exhibits evidence of a possible effective working of legal positivism.
Hart’s main growth changed Kelsen’s basic norm into a more multifaceted investigation of law that discriminates two classifications of rules. Hart’s unambiguous motive is illuminating rather than rational. He tried to make clearer for knowledge seekers the evolution better legal systems from primitive ones. [11]
Hart theory of law gave birth to a legal system, with primary rules that bestowed rights and duties but are enabled by legislation, repealing, declaring, the law while creating, changing or removing rights and duties and law maker do the same whether or not there is an attached punishment of failure. [12] This would indicate many beneficial effects of the law under such legal system because of the element of voluntariness compared with primitive legal system’s mandatory environment.
Secondary rules v. primary rules
The proper working of the theory asserts the presence of two set rules – the primarily rules and the secondary rules. The interplay of the two rules is explained under each subsection.
Two minimum requirements must be satisfied in order for a legal system to exist
There are two minimum requirements to have in order for a legal system to exist. The first is the need for private citizens to commonly follow the primary rules of obligation and second is the need for public officials to accept the secondary rules of recognition, change and adjudication as standards of official conduct.[13] If both of these requirements are not satisfied, then primary rules may only be sufficient to establish a pre-legal form of government.
In satisfying the requirements of valid legal system, Hart needed to classify the form of government into a valid form and pre-legal form. The necessity to obey the primarily rules of recognition by private citizens and the acceptance of the secondary rules by the public officials are made as requirements to have a valid form of government. This would mean emphasizing the importance again of secondary rules.[14]
Hart saw the possibility of overlapping between moral and legal rules due to similarity of the two in certain situations. He cited as example similarity between the two rules in the aspect of the demand for honesty and truthfulness as well as respect of others’ rights. In the union of the two, a sense of universality in some aspects of the rules appears. However, Hart noted the difference of the two in certain situations. He emphasized the fact both moral rules and legal rules cannot be changed as the same can only be possible in legal rules. In this sense the law cannot be claimed to have universality in one sense.
The functions of the secondary rules
Laws may either belong to primary rules or to the secondary rules. The first set obligates individuals with duties.[15] The secondary rules make effective the functioning of the primary rules and for the purpose of making available binding propositions primary rules in their entirety. Such function of the secondary rules may be classified as rules of recognition. Another function of the secondary rule is the so called rules of change since they would be needed to allow legislators to make changes in the primary rules in cases such primarily rules turned out as insufficient. The third function of the secondary rules is rule of adjudication which is needed to allow the judicial branch to resolve differences of opinion over the application and judgement as to their validity by the courts for such kind of rules.
The secondary rules of recognition which would counteract the indistinctness and uncertainty of conventional law by giving some clear decisive factor for shaping what forms part of the primary rule of law. The primary rules of a legal system need to function effectively, thus the same must be sufficiently clear and intelligible so those individuals to whom they apply must be able to understand them.
However, there are instances that primary rules are not sufficiently clear or intelligible, which would cause uncertainty about how the obligations imposed on individuals will be obeyed. In certain cases, there could be issues on whether powers have been conferred on individuals on accordance with statutory requirements or whether law market can actually have the power to do amendments in the law. This situation is very much possible in the context of a constitution which may be considered as a framework for governance. Although a constitution may create who are the authorized law makers or who can be authorize to perform the same function, said law makers may not be able to just change the constitution without following the requirements of a constitution on how it should be changed. Thus, although the constitution is a law in itself, there are limits to whether law makers as created do have the power to exercise some powers. This would therefore necessitate the application of the secondary powers since the same are needed to clarify the uncertainty in the primarily which is the constitution. Even the grant of power of possible officers who may discharge functions under a constitution may be an issue and therefore a situation where there is vagueness or uncertainty is also possible. Since the primarily rules may not answer it clearly, there is need to apply the secondary rules and the same may be done through rules of recognition or rules of adjudication.
Hart admitted the insufficiency of primary rules of obligation in them in establishing a system of laws to be given formal recognition, change and adjudication. The same primary rules must be must be combined with secondary rules in order to move forward to the legal stage of determination. Otherwise, the law remains at pre-legal stage. Hart in effect, posited a union of the two rules without implying the legal system be exactly using the very terms for purposes of defining the legal system.
For Hart, the primary rules become valid only if they consider “secondary rules”.
He divided the secondary rules fall into three categories which can solved the three weaknesses of primitive law.[16]
The secondary rules could allow more flexibility. It was noted that primitive systems were inflexible in changing adapting their laws and that developed or evolved systems have rules of change which respond to this inflexibility. Knowing explicitly therefore how the law can be changed would make things more responsive and practical. The third category was the fact that better systems with rules of adjudication corrected the inefficiency of private enforcement and the blood feuds which come out.
This therefore causes the setting up of courts which dedicated institutions with their rules for their operation in adjudicate guilt and interpretation of statutes.[17]
Distinction between the internal and external points of view of law
Hart pointed how the external was different from internal points of view in describing and evaluating the rules of legal system. A willing observer recognizing the rules voluntarily proves the working of external point of view. This is necessary for the external observer to become capacitated in evaluating the extent of creating a regular pattern of behaviour by human persons who are covered by the rules. But from the internal point of view, Hart postulated for the need of human person to be ruled by a working legal system to recognize these rules as standards of behaviour ahead of legal system’s validity declaration.
The external points of view may be equated with the requirements for external recognition before a country could be a recognized status. Despite the existence of rigid constitutionalism, a government that may still acquire its legitimacy to have a new legal system under a new legal order even if it acquired it power through extra legal means like a revolution if externally independent nations would extend international recognition.
The recognition may of course be proved by declaration of support o some regular pattern of conduct that may be show among a group of individuals of nations in the of form government wanting recognition to become state under a political law concept.
The internal point of view or internal aspect of rule requires that said internal rules must be considered in interpreting the conduct of individuals if they are in effect accepting and obeying the legal system.
Rule of recognition
Hart considered the rule of recognition as an evolution basic norm from Hans Kelsen.[18] The theory of law was made as reply to critique to legal positivism made by Ronald Dworkin. Hart had earlier discussed account of law in previous writing like Taking Rights Seriously.[19]
As one of central parts of Hart’ theory of law, the rule of recognition which must underlie any legal system, can serve as one way to test for establishing strength of a rule. This is the requirement for the officials to accept the rules’ criteria to become as standard that govern their actions. [20]This would therefore have the effect of regulating standard of behaviour that would exert social pressure on for compliance. Thus Hart had the rule to perform the functions of establishing a test for valid law in the applicable legal system, conferring validity to everything else in the legal system and the unity of the laws in the same legal system. To put it simple, a rule must comply with the rule of recognition.
Critique of Work of Dworkin
In Law’s Empire, Dworkin argued that legal theory may advance from the stage when rules of conduct are identified to another stage when the justification for these rules must be decided upon and to another stage when the rules of conduct are evaluated based on what has been found to justify them. [1] For Dworkin, there is also the need to interpret and evaluate after identifying the rules of a legal system if a complete legal theory will have to hold.
Thus the author posited the need to consider the relationship between law and coercion which is the “force” of law, the relation between law and rightfulness or justifiability, or the “ground” of law. Thus, Dworkin considered legal theory to be complete if it can address both the question of whether the rules of a legal system are justified and the question of whether there are adequate justifications for compelling individuals to comply with the rules of the system.
Hart emphasized the lack of rational relationship of the content of law from morality by positing that the existence of legal rights and duties may not have any moral basis.[2] Thus, Hart’s view of the link between the law and morality contrasted that of Dworkin, who saw every legal action to have a moral dimension. Thus, the concept of law of conventional pattern of recognition, change, and adjudication was not accepted by Dworkin who viewed these things as not merely as a descriptive concept but they only interpret the law by combining jurisprudence and adjudication.
Hart considered legal positivism as the theory which avoids any rational relationship between morality and law. However, he admitted that rules of recognition may either result in the incompatibility of legal values with moral values as the basis for establishing legal validity of legal rules. [3]
Legal positivism is different from theories of natural law. The latter asserts that civil laws must be based on the moral laws for society to be properly governed while the former law must be what is written only if the same cannot be complete there is the concept of secondary law which must accomplish any of three functions. There could be a problem with equating the two as there are theories of nature that declare that the presence of moral laws which are universal and which can come out by reason would avoid the difference between descriptive and prescriptive laws. In the minds of Hart, such equating the two different domains could result in confusion. Moreover, there are natural laws that describe physical or social phenomena and may vary from laws that prescribe proper moral conduct.
Other good points of Hart’s legal theory
Being against formalism and rule-skepticism
Hart cannot fully embrace either formalism or rule-skepticism as methods of evaluating the structural fundamentals of a legal system. He feared that formalism may rely on rigid faithfulness to general rules of behavior or conduct in order to dictate if not impose the action to be performed in a particular situation.
On the other hand, rule-skepticism avoids any general rule of behavior to regard as an action to be performed in an exacting situation. Formalism may create such inflexibility in the rules of a legal structure that the rules are not modifiable to a particular case while rule-skepticism may bring into being such irresolution in the application of the rules of a legal scheme that every case has to be arbitrated or judged.
Hart’s criticism of formalism is consistent with his theory of law dissertation of primary and secondary rules. By allowing secondary rules to support the primary rules, he was in fact providing evidence of not too rigid adherence to general rules of conduct and could be considered too much formalism. To decide a course of action that could not be found in the primary, secondary law will clarify the vagueness.
Notable Point in international law
Hart considered international law as difficult to evaluate for its validity due to the absence of the needed elements of a working and valid legal system as defined by him. He, therefore, saw the absence of secondary rules and this could result in failing to enforce sanctions against nations who disobey international law because one is more powerful than the other. He also saw the incapacity of international courts to have the power to hear on over legal disagreements between nations. International law can be made useless by some nations who cannot be significantly pressured to comply as they would not be ready to comply. He saw however the compliant countries with international law that could still exercise their sovereignty.
Hart could still be partly true with the argument that there is still the possibility of compliance in international law. The fact that a nation enters into treaties that may have the binding effect or consequences of international law points to the continued applicability of an effective legal system in international given. The fact that these countries do voluntarily enter would indicate that they see the advantage of having such a law despite the seeming problem of not being able to become a fully-developed system. But still, the argument of Hart may still be due credit because of the difficulty of demanding compliance if one party will refuse to comply due to its more powerful position.
In any legal system, there may be instances of indistinct laws, and that judicial prudence may be essential in order to elucidate existing laws in these cases. Hart thus argued that to make indeterminate laws clearer, judges may be doing some law-making by their decisions that are not found in the law. He explained by rejecting the position taken by Dworkin, who took the view that judicial discretion was just a means to extract the most constant legal principles but not make any new law..[4]
The central feature of Hart’s theory of law can be observed to have been applied here as the need to have that judicial discretion in order to clarify the primary law. Had the law been very clear, there would not have been any need to use the secondary law. Although the contention of Dworkin that said judicial discretion involves not law-making, sustaining Hart’s theory of law in cases where the law is silent on an issue that would need adjudication sounds more appealing. This is the reason why there is therefore charge of judicial activism against the judges because of the requirement to make a ruling about an issue that cannot be found in law in the latter clear and unequivocal provisions.
The benefits of legal positivism could outweigh the possible abuse of basing the law using natural law
Hart’s materials on the theory of positivism are still a good reference point for teaching legal positivism and natural law and for the purposes of understanding the implication for the debate between the two concepts. The is seeming success of the continued contribution of the theory and the reason seen could be appreciated in the case of a woman in the Nuremberg Trials, cantered on a very important example. It was a case of a Nazi informer, a woman who had relied on the prevailing legal regulations to denounce her husband as a political dissident, and the woman was charged with a criminal offense after the war. It could be asserted that she benefited from the principle of legal positivism because that was what the law said at that time. If natural law was used, the decision would have resulted differently. [5] Even at this point in time, the general principle used in criminal laws is that if there is no law that punishes, there is no crime. [6]
Conclusion
This paper has found good arguments for the acceptance of some of the central features of Hart’s theory of law given the benefits that they provide in how legal theory is applied in understanding the law and its implications to society.
The central features of Hart’s legal theory dwell on the fact that many parts of the world’s governments are still using the theory in their legal environments. The use of the precepts of the theory proves the long-staying effect of the theory and their acceptability over the years could only testify to its validity. Laws under the legal system have benefited mankind and will continue to be here no matter what would be the change in the environment. Their validity and strength for accomplishing their purpose depend upon what legal theory backs their design and construction of a legal system under which this law must take their part. So indeed is a complex and dependable social decision process because of the need to find a resolution to disputes. The alternative to lack of good legal theory could only be more problems if not chaos or anarchy. That morality is separate from legality was noted in the legal theory of Hart. Such simple assertion reverberates in the laws of many nations where the possibility of what is not changeable is friendlier to some victims under legal positivism than when what is legal is based on what is moral. Indeed, what is moral is not necessarily legal[7] and vice versa. Definitely, Hart’s legal theory strengthens this statement.
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