Introduction:
Different jurists had different opinions and different views of law. One
particular view was to analyze law
in terms of legal rules. It should be noted that legal rules are imperative or
prescriptive, rather than indicative or descriptive. In. other words, legal
rules are not concerned with what happens, but with what should be done. The
legal rules again differ from commands, because commands order the doing of one
particular act, while legal rules deal with general and repeated activity. In
this sense, legal rules resemble technical rules or directives for achieving
certain results. Thus, for instance, certain rules may provide the mode of
preparing a good dish. Legal Rules are more like the rules of a recipe than
commands. But the fundamental difference between rules of recipe and legal
rules is that the legal rules are not merely an instrument for producing
certain kinds of society, but the legal rules and their observations are
themselves part of such society.
It has also been pointed out that observing a rule is different from
merely acting out of habit. What is done out of mere habit is done without any
sense of obligation to do it, while observance of a legal rule is merely
external. Internally, it is coupled with an attitude that such external
behaviour is obligatory. Therefore, a legal right can be defined as one, which
prescribes a code of conduct, which is done with the feeling that such conduct
is obligatory. This feeling is not a psychological illusion peculiar to the
person observing the rule. A person who has to act according to a rule will
also expect others to act according to the rule. This sense of obligation
arises
neither out of mistake nor out of illusion. .
The above is, in short, Professor Hart's theory of law, as set out in
his treatise, The Concept of Law.
Hart's definition of law can be stated as follows: “Law consists of rules
which are of broad application and non-optional character, but which are at the
same time amenable to formalization, legislation and adjudication.”
Hart calls these rules of law primary rules, which would simply impose
duties. But the unity among these rules is brought about by secondary rules,
which are power-conferring rules. For example, the Indian Penal Code consists
of primary rules, while the Constitution of India consists of secondary rules,
as it consists of a number of power-conferring rules.
Legal rules, as defined above, must be distinguished from rules of
games, clubs, and societies, and moral rules, which are also observed with a
sense of obligation. The first difference between moral rules and other rules
(including legal rules) is that the latter can be amended and can be subject to
adjudication, while morality can be amended by an authoritative body; nor is it
susceptible to the process of adjudication.
Secondly, legal rules and moral rules can be distinguished from rules of
games, etc. Obedience to legal and moral rules is general in application, while
the rules of games are applicable only to a limited number of persons who are
playing the game. Again, one could withdraw from the game, the club or the
society, while in the case of legal and moral rules, such withdrawal from a
State or society is practically impossible.
Comparison of Hart’s Analysis and Austin’s Theory
Hart's analysis of legal rules is different from the Austinian concept
of legal rules. According to Austin, the command of the State is imposed and
one is obliged or compelled to obey it. According to Hart, a legal rule is
observed because one has a sense of obligation to observe it. Law prescribes,
not a command, but a standard of conduct. This standard is adhered to, not only
because there is a sense of obligation to adhere to it, but also because there
is, an expectation that others have some obligation to adhere to it. Therefore,
even a person who cannot be compelled to obey the law is still reckoned as
having an obligation to obey. According to this view, law is concerned with
obligation rather than coercion.
Conclusion: According to Hart, the basic rules of a legal system do not consist of
something which one has to assume or
postulate. Rather, it is itself a rule accepted and observed in a particular
society.
H.L.A. Hart’s The Concept of Law in details
Herbert Lionel Adolphus Hart (1907-92) was a British philosopher who was
professor of jurisprudence at the University of Oxford. His most important
writings included 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 (1961) is an
analysis of the relation between law, coercion, and morality, and it is an attempt 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
logically necessary connection between law and coercion or between law and morality. He explains
that to classify all laws as coercive orders or as moral commands is to oversimplify the relation between law, coercion,
and morality. He also explains that to conceptualize all laws as coercive
orders or as moral commands is to impose a misleading appearance of uniformity
on different kinds of laws and on different kinds of social functions which
laws may perform.
He argues that to describe all laws as coercive orders is to mischaracterize
the purpose and function of some laws and is to misunderstand their content,
mode of origin, and range of application.
Laws are rules that may forbid individuals to perform various kinds of
actions or that may impose various obligations on individuals. Laws may require
individuals to undergo punishment for injuring other individuals. They may also
specify how contracts are to be arranged and how official documents are to be
created. They may also specify how legislatures are to be assembled and how
courts are to function. They may specify how new laws are to be enacted and how
old laws are to be changed. They may exert coercive power over individuals by
imposing penalties on those individuals who do not comply with various kinds of
duties or obligations. However, not all laws may be regarded as coercive
orders, because some laws may confer powers or privileges on individuals
without imposing duties or obligations on them.
Hart criticizes the concept of law that is formulated by John Austin in
The Province of
Jurisprudence Determined (1832) and that proposes that all laws
are commands of a legally
Laws that impose duties or obligations on individuals are described by
Hart as "primary
rules of obligation." In order for a system of primary
rules to function effectively,
"secondary
rules" may also be necessary in order to provide an authoritative
statement of all the
primary rules.
Secondary rules may be necessary in order to allow legislators to make
changes in the primary rules if the primary rules are found to be defective or
inadequate. Secondary rules may also be necessary in order to enable courts to
resolve disputes over the interpretation and application of the primary rules. The secondary rules of a legal system may
thus include 1) rules of recognition,
2) rules of change, and 3) rules of adjudication.
In order for the primary rules of
a legal system to function effectively, the rules must be sufficiently clear
and intelligible to be understood by those individuals to whom they apply.
If the primary rules are not sufficiently clear or intelligible, then
there may be uncertainty about the obligations which have been imposed on
individuals.
Vagueness or ambiguity in the secondary rules of a legal system may also
cause uncertainty as to whether powers have been conferred on individuals in
accordance with statutory requirements or may cause uncertainty as to whether
legislators have the authority to change laws. Vagueness or ambiguity in the
secondary rules of a legal system may also cause uncertainty as to whether
courts have jurisdiction over disputes concerning the interpretation and
application of laws.
Primary rules of obligation are not in themselves sufficient to
establish a system of laws
that can be formally recognized, changed, or adjudicated, says Hart. Primary
rules must be
combined with secondary rules in
order to advance from the pre-legal to the legal stage of
determination. A legal system may
thus be established by a union of primary and secondary rules (although Hart does not claim
that this union is the only valid criterion of a legal system or that a legal system must be described
in these terms in order to be properly defined).
Hart distinguishes between the
"external" and "internal" points of view with respect to
how the rules of a legal system may be described or evaluated. The external point of view is that
of an observer who does not necessarily have to accept the rules of the legal
system. The external observer may be able to evaluate the extent to which the
rules of the legal system produce a regular pattern of conduct on the part of
individuals to whom the rules apply. The internal point of view, on the other
hand, is that of individuals who are governed by the rules of the legal system
and who accept these rules as standards of conduct.
The "external" aspect of rules may be evident in the regular
pattern of conduct which may occur among a group of individuals. The
"internal" aspect of rules distinguishes rules from habits, in that
habits may be viewed as regular patterns of conduct but are not usually viewed
as standards of conduct. The external aspect of rules may in some cases enable
us to predict the conduct of individuals, but we may have to consider the
'internal' aspect of rules in order to interpret or explain the conduct of individuals.
Hart argues 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 evaluated. 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 minimum
requirements which must be satisfied in order for a legal system to exist: 1) private citizens must generally obey the primary rules of obligation,
and 2) public officials must accept the secondary rules of recognition, change,
and adjudication as standards of official conduct. If both of these
requirements are not satisfied, then primary rules may only be sufficient to
establish a pre-legal form of government.
Moral
and legal rules may overlap, because moral and legal obligation may be similar
in some situations. However, moral and legal obligation may also differ in some
situations. Moral and legal rules may apply to 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 same way that legal rules can be changed.
According to Hart, there is no
necessary 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 differs from that of Ronald Dworkin, who in Law’s Empire suggests that every legal
action has a moral dimension. Dworkin rejects 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.
Hart defines legal positivism as
the theory that there is no logically necessary connection between law and
morality. However, he describes his own
viewpoint as a "soft positivism,"
because he admits that rules of recognition may consider the compatibility
or incompatibility of a rule with moral values as a criterion of the rule’s
legal validity.
Legal positivism may disagree with theories of natural law, which assert
that civil laws must be based on moral laws in order for society to be properly
governed. Theories of natural law may also assert that there are moral laws
which are universal and which are discoverable by reason. Thus, they may fail
to recognize the difference between descriptive and prescriptive laws. Laws
that describe physical or social phenomena may differ in form and content from
laws which prescribe proper moral conduct.
Hart criticizes both formalism
and rule-scepticism as methods of evaluating the importance of rules as
structural elements of a legal system. Formalism
may rely on a rigid adherence to general
rules of conduct in order to decide which action should be performed in a
particular situation. On the other hand, rule-scepticism may not rely on any
general rule of conduct in order to decide which action should be performed in
a particular situation. Formalism may produce such inflexibility in the rules
of a legal system that the rules are not adaptable to particular cases.
Rule-scepticism may produce such uncertainty in the application of the rules of
a legal system that every case has to be adjudicated.
International law is described by
Hart as problematic, because it may not have all of the elements of a
fully-developed legal system. International
law may in some cases lack secondary rules
of recognition, change, and adjudication. International legislatures may not
always have the power to enforce sanctions against nations who disobey
international law. International courts
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
clarify existing laws in these cases. Hart also argues that by clarifying vague
or indeterminate laws, judges may actually make new laws. He explains that this
argument is rejected by Ronald Dworkin, who contends that judicial discretion
is not an exercise in making new laws but is a means of determining which legal
principles are most consistent with existing laws and which legal principles
provide the best justification for existing laws.5
Dworkin says in Law’s Empire that legal theory may advance from the
"preinterpretive stage" (in which rules of conduct are identified) to
the "interpretive stage" (in which the justification for these rules
is decided upon) to the "postinterpretive stage" (in which the rules
of conduct are reevaluated based on what has been found to justify them).6 A
complete legal theory does not merely identify the rules of a legal system, but
also interprets and evaluates them. A complete legal theory must consider not
only the relation between law and coercion (i.e. the "force" of law),
but the relation between law and rightfulness or justifiability (i.e. the
"grounds" of law). Thus, Dworkin argues that a complete legal theory
must address not only the question of whether the rules of a legal system are
justified but the question of whether there are sufficient grounds for coercing
individuals to comply with the rules of the system.
CRITICISM ON HART’S CONCEPT OF
LAW
1. Lord Llyod – Hart’s description of a
developed legal system in terms of a union of primary and secondary rules is undoubtedly of value as a tool of
analysis and he wonders whether too much is not being claimed for the new view
of some of the old problems. (Hart is aware – suggest that there other element
is LS, i.e. “open texture”. Lord Llyod asks the question whether it is possible
to reduce all rules of the legal system to rules, which impose duties, and
rules, which confer powers.
2. RONALD DWORKIN (born in 1931) took chain from
HART has criticized HART for representing
law as a system of rules and for suggesting that, at certain points, the judges
use their discretion and play a legislative role.
THE view of Dworkin is that a conception of law as a system of rules fails
to take account of what he calls “principles”.
He also maintains that judges do not have discretion as even in hard cases,
there is only one “right answer”
The contention of Dworkin is
that principles are not distinguished from rules in a number of ways
1. Principles such as the standard
that no man may profit by his own wrong, differ from rules “in character of
direction they give.”
2.While rules are applicable in all
or nothing, principles state “a
reason that argues in one direction but do not excessitate a particular
decision.
To quote him:
“All that is meant when we say
that a particular principle is a principle of our 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.”
3. Principles have a dimension of weight or importance which rules do not have.
Dworkin asserts that whilst a system of rules must be inherently
consistent and coherent, devoid of inner contradictions; to the contrary
principles and policies do tolerate contradictions without necessarily breeding
terminal chaos to a legal system.
1.Dworkin’s “Rights Thesis of Law”
which views the legal system of rules but one encompassing social policies and
principles.
2.Dworkin is convinced that the
judicial function is to find the “right answer” by assessing rules, principles
and polices. Thus the role of the Judge is wider and grander beyond the “false”
dichotomy of law vis-à-vis morals which, it is claimed, tends to restrict the
judicial function.
jurisprudence
