This Book Review on Concept of Law by HLA HART was written by Ankita C. Dhabu a student of National Law University Odisha
In this book, concept of law, Hart answers the very basic questions as to what is law and what constitutes a legal system and also what is the difference between law and morality. Hart answers to all these questions by putting law in the social context. Hart starts with criticizing the theory propounded by John Austin and then goes on to state the reasons behind the failure of the theory given by Austin. He further distinguishes between primary and secondary rules of obligation saying that the primary rules are those which help in governing the conduct whereas secondary rules are those which create or amend the primary rules. He creates a distinction between the internal view point and the external view point and gives his concept of ‘critical reflective attitude’ that must exist in a society. Hart was influenced by Weber, and this differentiation between the internal view points and the external view points is similar to how Weber classified between sociological and the legal perspective of law. He gives the idea of rules of recognition, adjudication and change. He says that, the rules of recognition are those which recognize the primary rules, that is whether a particular norm is having the authority of law or not. According to Hart the rules of Recognition were an evolution of the concept of grundnorm, which was propounded by Kelson. This book remains as one of the most influential write ups in the modern legal philosophy.
BOOK REVIEW LAW AS THE UNION OF PRIMARY AND SECONDARY RULES
Hart begins this chapter by putting forth reasons as to why the model of law which is backed by coercive orders is unsuccessful in order to reproduce the most important or the salient features of any legal system. He states the following reasons for the failure of a legal system backed by sanctions only:
i) Even though the theory of Orders Backed by Threats shows that it can be made applicable to all the laws present in the legal system, it applies mostly to the matters concerning criminal law and it also fails to acknowledge that a criminal statute does not only apply to the public in general but also to the people who enact the statute.
ii) The Orders Backed by Threats theory does not apply to any other variety of law. it only applies to such laws that provide the authority with some power that is mostly public or private in nature.
iii) The Orders Backed by Threat theory is incapable of acknowledging the fact that there exist certain legal rules that have various, diverse and different origins. This means that, it fails to recognize that there might be other types of origins from which law or rules might originate, other that, Custom or laws made by God.
iv) This theory leaves the aspect of persistence of law and continuity of law with regard to habitual obeying the sovereign. Furthermore, it is not only the electorate or any legislative body of the State which can be recognized as a sovereign.
Furthermore, Hart also says that the utilization of subsidiary devices like the idea of ‘Tacit Commands’ that was propounded by Austin, is a total fail because such devices are not applicable in the modern legal systems. Moreover, the idea propounded by Kelson that, rules which provide power are mere fragments of law and that the application of law should be restricted on the officials, also, in a similar manner deteriorated the entire legal system as it does not take the people’s perspectives, with regard to rules being applied over them, into account. Thus, giving the above reasons, Hart believes that the theories so propounded have failed as they do not recognize the concept of rules, and without such a basic preliminary concept, he says that the elucidation of the most primary or elementary points of law is impossible.
Hart puts forth that Austin’s theory had many flaws, but he also believes that Austin’s theory started from a right approach saying that law is something that makes the conduct of every human being obligatory and non-optional. He however, also, points out that being obliged to follow a law and being subjected to an obligation of following a law are two very different things with a vast difference in between them. Hart says that, forcing something upon people, making them obliged to follow a particular law depends upon the external circumstances, however, being under an obligation to follow a particular law binds the people with a duty to follow that law and this does not need the presence of any psychological condition or any kind of standards that determine an act to be either right or wrong. This kind of an ‘obligation’ is followed because, it in itself is a norm, and is independent of facts in order to prove its validity. It remains because, it is a duty and thus, the presence of external facts cannot deteriorate or distort it.
He also says that, according to Austin, the term obligation has been defined basing upon the sanctions that would be granted in cases of any kind of disobedience, which makes it a kind of evil that a human would be subjected to in case of disobedience. He points out that, while defining obligation factors like varied kinds of situations and subjectivity should have been taken into consideration. Hart gives various kinds of reasons as to why such an interpretation should be necessarily rejected. One of the most important of them is that Austin has failed to take in account the basis that sanctions are applied because of a reason that there has been a nonconformity of rules and this does not work vice versa. The punishment is the ‘motivation’ for abiding by the laws. It is not that law would not be broken because people are feared of sanctions. Hart says that one needs to see the ‘internal aspect’ of rules that people abide by.
If one has to understand the basic idea of ‘obligation’, one has to see the existing social rules which make that obligation. Being obligated to follow the rules means an implied existence of rules, but, it should be necessarily noted that rules can remain in existence even without obligating any person, for example, rule of speech and expression is not a binding rule but still is considered as a rule. Hart further says that the seriousness or the graveness of the social pressure which makes such rules and in turn gives rise to an obligation needs to be seen. Rules which are backed up by an enormous amount of social pressure are considered to be important as they are necessary in order to balance and maintain the social life. For example, the formulation of rules with regard to violence, that is, Code of Criminal Procedure in Pakistan or the Code of Criminal Procedure in India or the Offences Against the Persons Act in England, all these make it sure that any person does not cause bodily harm to someone else. In a similar manner, rules of Contract, which require the promises to be kept, are often considered as an obligation or a duty. Moreover, the kind of conduct that is required by these rules is benefiting to others but at the same tie may be in conflict with the wishes of the person who is completing the duty.
INTERNAL ASPECT OF LAWS
In order to put things in a more realistic and practical manner, Hart says that it is never necessary that an obligation comes out as an outcome of a social pressure. He says this referring to the thieves who do not feel that they have any kind of social pressure to abide by the rules even if they have and are bound by a social obligation to not to steal or commit any other kind of a crime. Here, Hart puts forth the internal point of view and the external point of view. According to him, an external observer sees the rules in accordance with the regularities in conduct, that he observes in the society, and not in terms of being a member of the society or the group, which knows and follows the internal point of view. An external observer only knows that if there is a sign of deviation in the behavior of any member then, that would be followed by a hostile reaction and nothing else.
Hart says that, the internal point of view is what that needs to be stressed, and originating from this the ‘critical reflective attitude’. He says that the critical reflective attitude must take into account certain recurrence or pattern of behavior to be a standard and any kind of deviance from such behavior should be and would be criticized by not only the people but also, the person who had committed such a deviance. Such criticisms from the people must be acknowledged and people are justified in criticizing such a behavior. Now, he asks a simple question as to what comes first, the criticism or the behavior. He says that criticism is said to originate as a result of a deviant attitude and attitude can be explained by giving reference to the criticism and that how it Concept of Law by HLA Hart Page 6 is justified. Here Hart gives a kind of cycle to the whole concept of behavior and attitude but fails to give any further explanation.
Hart says that an internal point of view existing in the pre legal society is necessary in order to preserve the solidarity and unity of the group. As it was that internal point of view towards a particular act that imbibed cohesion among the society. However, in the modern legal societies he says that even though it is desired that such an internal view point exists, it is not necessary that the public in the modern legal society must have the internal point of view. Officials should necessarily have an internal point of view with regard to secondary rules, as they act as meaningful guides not only for their own conduct but also for the conduct of the others. Here, a question arises as to what is Hart trying to say. He is saying that citizens should not obey the law with regard to the internal point of view. Is he saying that the threat of sanctions is sufficient, as was propounded by Austin? The only difference that exists was that Austin used the terminology ‘habit of obedience’ unlike Hart who brought in ‘internal and external point of view’. It is not necessary that official have an internal point of view always. They may have various other reasons to obey the rules as well for example bribe, favoritism, red tapism etc.
However, the people who support Hart say that, the internal aspects of a rule is necessary to show the difference between the view point of outsiders and insiders with regard to a rule in the legal system. It has nothing to do with the officials complying by the secondary rules of conduct.
THE NOTION OF PRIMARY RULES AND SECONDARY RULES
The beginning of Hart’s theory is the primary and secondary rules. He says that Primary rules are those which need human beings to do or abstain from doing something whether they want to do it or not. That is, primary rules impose such duties that the human beings are bound to perform. Secondary rules are those which have the power to change or create primary rules. They confer both public as well as private powers and provide the duties and obligations that the people have to abide to. It is coming together of both the primary and secondary rules which Is the essential part of the science of jurisprudence.
THE ELEMENTS OF LAW
According to Hart there is a possibility that there may exist a society without any courts and such communities do exist in some parts of the world. In order to explain this, Hart takes into account a society where only primary rules of obligation exist which the people living in the community are bound to follow in order to live together in unity. The other condition that exists for the existence of such a society is that people who give their acceptance for the rules must form the majority. Such conditions can be applied only to a small community in which the bonds of sentiments, believes and kinship exist in a big amount, so that it can also abide by the unofficial rules. The problem with applying this whole scenario to a larger society is that there would exist a great uncertainty with regard to rules because it would become very difficult to recognize them, and their ambit or scope of application would also remain restricted. The second problem that would be faced would be that the rules may become static as there would be a problem in uprooting the old rules and bringing in the new ones and in this manner the changing ruled would not be adaptable with changing times and circumstances. The third problem faced would be that of inefficiency, that, if the rules are not followed or if a dispute comes up then there would not exist any authority to punish with an appropriate sanction. This would only create an arbitrary and unjust society.
In order to remove these defects, Hart feels that it is of utmost importance to unify the primary and secondary rules of obligation. It is with this unification that the society would step ahead from the stage of pre-legal to legal. He gives three types of Secondary rules of obligation, that is, Rules of Change, Rules of Adjudication and Rules of Recognition.
Remedy for Uncertainty
In order to improve the defects thus given, Hart puts forth the idea which he claims to be the ‘master rule’ , which is the Rule of recognition. According to Hart, the Rule of Recognition, is an instrument which is flexible in nature. He says that codifying the rules is not the most essential step from pre-legal to legal situation in a primitive society. The acknowledgment of the rules as being authoritative is the most crucial step. Thus, Rules of Recognition basically identify the primary rules of obligation. The most important part of Rules of Recognition id that it unifies the rules and gives rise to a new legal system.
Remedy for Static-ness
In order to improve the static-ness of rules, Hart says that, Rules of Change should be necessarily introduced. These, empower the people to bring new and better primary rules and uproot the old rules and this needs to be done by specifying the procedures to bring about new laws, legislative enactments. These rules of Change also enable the individuals to form obligations and create rights which may be in the form of contracts or will etc.
Remedy for Inefficiency
In order to improve this, Hart brings in the concept of Rules of Adjudication which would empower certain individuals to adjudicate and judge and also lay down the procedures according to which the judging of the disputes shall take place.
THE FOUNDATIONS OF A LEGAL SYSTEM
Hart says that, the main function of the Rules of Recognition is to see that a rule is a part of a legal system or not. When a Rule of Recognition is approved, the individuals as well as the officers have the authority to identify the primary rules of obligation.
In the modern legal system, the rule of recognition become very complex because of the presence of a variety of laws. To avoid any kind of conflict, the sources of law have been ranked. It is because of only this system that the common law resent in the English legal system is subordinate to a statute.
The existence of Rules of Recognition can be seen in the manner in which certain rules are identified by the courts or officials or individuals etc. If an unstated rule of recognition is used by the court in order to see certain rules of the system, then, this would be seen with regard to the internal point of view.
Hart then says that there lies a difference between validity and efficacy. According to him, there lies no connection between the two, except when the rule of recognition expressly states that a rule which has ceased to be efficacious long back would not be considered as a rule of the legal system at all.
RULES OF RECOGNITION AND THE ULTIMATE RULE
Hart goes on to show the difference between what he classifies as the supreme criterion and what he means by an ultimate rule of recognition.
The former forms a part of the latter and dominates on the rest, Going by this definition, the Supreme Criterion in UK is the law laid down by the parliament and if any custom or common law contradicts with it then the law laid down by the parliament prevails over everything. The ultimate rule of the legal system is the rule of recognition because it is the end point. Every primary rule has to be necessarily identified by the rules of recognition. Hart criticizes Kelson by saying that there needs to one fixed standard, which cannot be assumed. Rules of Recognition cannot be assumed and in order to support his argument, Hart gives the example of the set standards of time that are, Big Ben in London and Meter Bar in Paris. Hart further says that, there lies a vast difference between ‘presupposing existence’ and ‘assuming validity’ because if not distinguished properly, the existence of a rule itself comes into question. Hart says that, the existence of the rules of recognition is a fact and not an assumption as Kelson wrongly presupposes.
MINIMUM REQUIREMENTS FOR THE EXISTENCE OF A LEGAL SYSTEM According to Hart, until and unless the legal system is made effective, it is of no use to talk of its validity. The following are the criteria for the existence of a legal system:
i) The officials of the system must possess an internal attitude with regard to the rules of recognition of that system, and although desired but is not necessary that individuals also have internal attitude towards the rules. Hart says that it is necessary that there must exist an acceptance of the Rules of Recognition and this would give validity to the system.
ii) The rules of the legal system should be obeyed by all, not only the individuals but also the officials.
There might arise situations where the internal point of view exists only among the officials and the society becomes sheep like, still the legal system would remain.
Hart says that the existence of a legal system is only possible when the officials and the citizens have a similar approach towards obeying the law. If the points of view of both the parties coincide then this would provide validity to the legal system. However, if there is a breakage of the unity of the officials itself then, there might be a situation which may lead to the failure and subsequent breakdown of the legal system.
Hart also shows that if the society is in the stage of a revolution, then the legal system may be overthrown and a new legislation and a new legal system altogether may be setup. He gives the example of India, which formed an entire new legal system after being liberated from the colonial regime.
CRITICISMS AND SHORTCOMINGS
Hart, where he says that there should be internal and external view point that should exist, and gives the concept of critical reflective attitude, he should have also told as to how these wishes of the society shall be seen and met. Hart fails to show as to what would be meant by the rules which are accepted by the entire society. Furthermore, it is not necessary that two extremes of internal and external can only be taken into consideration. There might also exist a situation in between these two.
Moreover, where Hart says that individuals need not necessary obey the rules or laws with regard to the internal point of view, somewhere or the other he is approving by the theory propounded by Austin saying that threat of sanctions in enough to implement the laws. Furthermore, the role of secondary rules of obligation remains a bit uncertain as earlier Hart says that the confer powers on the individual but, while introducing the Rules of Recognition he says that they can both confer powers as well as impose duties.
Also, Hart fails to explain that how in a modern legal system, his concept of people having a internal view point be applied. This is because, in such societies, there would be a large amount of people who would have various viewpoints. Now how a poll of the viewpoints is to me made is not explained by Hart in his theory.
Also, Hart does talk about being under an obligation to follow the law. But he does not show as to how would those people be rewarded if the laws have been followed by them. Furthermore, he also does not make his idea of sanctions very clear. On one hand he says that people should criticize any act that is deviant from the generally accepted norms of the society and on the other hand he lays down rules of adjudication which would lay down procedures to adjudge the cases. These are certain shortcomings that can be seen in Hart’s theory of the legal system.
HLA HART: HIS CONTRIBUTIONS IN THE FIELD OF JURISPRUDENCE
Hart through his book has firstly made a big contribution by disagreeing with Austin’s theory which propounded a legal system that was backed only by sanctions. Hart makes a fair classification between the terms being obliged to and being under an obligation to follow a rule or a norm. He further gives an idea of a better legal system which has the concept of both rewards as well as punishments. He also slightly gives an idea of general acceptance that, in order to ensure that a legal system remains still, there must be the presence of a general acceptance amongst people with regard to rules and laws. They must accept the rules that are applied on them, and the majority of the population should be in favor of abiding by the rules. Moreover, Hart also gives the idea as to how a primitive legal system would transform into a secondary legal system. He gives the concept of primary rules of obligation which are then backed by secondary rules of obligation. His main contribution is in showing as to how the primary rules of obligation can be recognized and changed by using the rules of recognition, rules of adjudication and rules of change that is secondary rules. In this way a primary rule of obligation is recognized, amended or changed, and applied in matters of adjudication. He further goes out to give his own idea about a legal system and that how every person in the society should, not necessarily, but is desired to have a particular internal point of view with regard to a rule. Here he gives the concept of ‘critical reflective attitude’ saying that any kind of deviation shown by any person in the society is condemned and that person is subjected to a lot of criticism. In this way, he says that every small society should have this critical reflective attitude.
These are the main and important contributions made by Hart in these chapters and to the science of jurisprudence. He took the philosophy of jurisprudence a step ahead by including people’s participation in the legal system and paying some heed to their acceptance of rules being imposed on them. He further propounded his own theory based on his criticism of Austin and Kelson.