Seminar 5 – Hart

Semester 2, Week 7

Seminar Reading:

1. Hart, The Concept of Law Ch V, Ch VI.1 (ie “The Rule of Recognition and Legal Validity”), Ch
VII.1 (ie “The Open Texture of Law”) and Ch IX.2 (ie “The Minimum Content of Natural Law”).
NOTE there are multiple editions of this book, the text is the same for each of the relevant
sections so any edition will do.

Topic Reading:

For further reading that may be helpful to your understanding of this topic, please consult your
lecture handouts/slides. Such reading is not strictly required for the seminar, but you are
encouraged to make use of such sources if you are struggling to make sense of the seminar reading.

Questions

1. Where do legal rules come from according to Hart? Why is he interested in this question?
Rules are conceived and spoken of as imposing obligations when the general demand for
conformity is insistent and the social pressure brought to bear upon those who deviate or
threaten to deviate is great. when physical sanctions are prominent or usual among the
forms of pressure, even though these are neither closely defined nor administered by
officials but are left to the community at large, we shall be inclined to classify the rules as a
primitive or rudimentary form of law.

Legal rules come from rules. They are the application of secondary rules to primary rules,
giving primary rules legal legitimacy.

Interested because he’s legal positivist and he thinks laws emanate from the sources of law.
Hart thinks that only laws human r subject to r laws coming from 1 or more from those
sources.

2. What is law, according to Hart?

3. What is the difference between ‘the internal aspect’ and ‘the external aspect’ of rules?
External aspect of rules is seen though an observer not subject to them. By observing those
who are subject to the rules and the regularities in their behaviour and the hostile reaction
to deviations in their behaviour, an external observer can begin to form his own idea of the
rules that they are subject to. The internal aspect is formed by those who are subject to the
rules and accept them. The obsever cann0t truly describe their life in terms of rules at all
 instead his observartions can be used to form probabilities of conduct and predictions. The
external obsever can only see the rules in terms of possible punishments. The internal
aspect of la is provided by he who is subject to it and accepts it and thereafter forms a
critical perspective on it.
Clearest example is traffic lights. If someone has never seen traffic lights and realised that people
always stop at red light they may start to predict people stopping at red lights and continue on
green. However, from external behaviour they would have no idea why they were doing this.

4. What types of rules are there, according to Hart, and what is the difference between them?

Primary and secondary. First are rules to be followed. The second govern primary rules. They are
power conferring rules. They dictate how primary rule are to be enforced, interpreted, how disputes
are to be settle, what authority is allowed to settle disputes, how they are to be changed, and when
they can be deemed to be valid.
‘In a developed legal system the rules of recognition are of course more complex; instead of
identifying rules exclusively by reference to a text or list they do so by reference to some general
characteristic possessed by the primary rules. This may be the fact of their having been enacted by a
specific body, or their long customary practice, or their relation to judicial decisions.’

Rules of change. Rules of adjudication. There is also a rule of recognition,. Which is like a mster rule
which gives validity to legal rules.

Rule of recognition gives validity to law. It states all sources of law and gives hierarchy if there is one.
This rule is directed towards officials charged with applying the law.

Rules of change are rules guiding how to alter your legal position or change the law. E,g, rule of
implied repeal. Repeals contradictory law from past legislation. Even in contract law- when you
make someone offer you give them power to change legal relationship with you and you change
your legal relationship with them.

5. Why do we need ‘rules of adjudication’? we need due to open texture of language.

Besides identifying the individuals who are to adjudicate, such rules will also define the procedure to
be followed. Like the other secondary rules these are on a different level from the primary rules:
though they may be reinforced by further rules imposing duties on judges to adjudicate, they do not
impose duties but confer judicial powers and a special status on judicial declarations about the
breach of obligations. Again these rules, like the other secondary rules, define a group of important
legal concepts: in this case the concepts of judge or court, jurisdiction and judgment. Besides these
resemblances to the other secondary rules, rules of adjudication have intimate connections with
them. Indeed, a system which has rules of adjudication is necessarily also committed to a rule of
recognition of an elementary and imperfect sort. This is so because, if courts are empowered to
make authoritative determinations of the fact that a rule has been broken, these cannot avoid being
taken as authoritative determinations of what the rules are.
This rule is needed when discussing what is a vehicle? Due to open texture of language. You would
look at what was originally intended by parliament. What did they initially want to protect park
goers from. Can also look at danager, harm, polution and even nuisance. Court may may make
determination as to which of these principles is the most important one. Further judges may in the
context decide that they are all relevant.

If someone took car late at night would it still fall within meaning of rule. In my opinion yes. because
danger posed should not be main factor in considering what vehicle is but instead normal
interpretative language.

[Hart, HLA/Raz, Joseph/Bulloch, Penelope A.. The Concept of Law]

6. What is the relationship between law and morality, according to Hart?

• The minimum moral content in law is based on minimum human motivations ascribed to
most people.

Think about contingent conditions of human life. Humans are relatively vulnerable; we are
approximately equal in strength and capacity. Humans are not necessarily guided by altruistic
motives. We can be guided by immoral or evil motives. There are limited resources and strength of
will lead humans to certain moral failures, so humans behave in immoral way. Given his we need
certain structures of law that will allow us to survive given these conditions and remove dangers to
survival due to the stated reasons. This is why most laws in this world will have prohibition of
murder. Because people have motive to survive, and they are in danger of being murdered. this is
the minimum content of natural law. Based on minimum human motivations ascribed to most
people.
• Common human condition
• Vulnerability
• Approximate equality
• Limited altruism
• Limited resources
• Strength of will

System of mutual forbearances. Would also cover aspects of property law for hart to avoid
friction. According to his theory we can't believe survivalist a necessary aim then then this
minimum content cannot be changed and then hart’s theory falls apart. Therefore, despite
survival being a serious matter, survival must be contingent.
7. What is Hart’s major criticism of Natural Law theory?
Natural lawyers say that an unjust law is not a law, and this confuses the issue. This
objection is completely beside the point because natural lawyers don’t say that. They don’t
question whether they are laws but whether to obey them or not.

8. Do you find Hart’s theory of law convincing? Why (not)?