Herbert Hart’s world of rules and obligations

- Herbert Lionel Adolphus Hart (H.L.A Hart)

- Professor of Jurisprudence at the University of Oxford from 1952-1969
- His work The Concept of Law dominated British jurisprudence in the final decades of the 20 th
century

Brief Summary:

Hart sought to rescue legal positivism from the factual and conceptual traps into which Bentham and
Austin had let it. Like them, Hart was also a utilitarian in philosophical outlook but he realised that law
cannot be identified exclusively with the commands of a sovereign. The first part of his book criticises
Austin’s command theory of law and states that there is no such sovereign whose power is legally
unlimited. Even the British sovereign which Austin cherished had the concept of “the rules of Royal
Succession”. The idea of law as a command that people obey due to threat of sanction misses a very
important quality of law – the reflective acceptance of the law by the people as binding, to whom it is
directed. He states that Austin fails to differentiate law with a gunman writ situation wherein a
sovereign is no different from a robber if people obey their commands solely due to fear of sanction. It is
misleading to understand law in this way. Hart considers his theory to be soft positivism because:
1. His theory accepts laws which may not have been declared officially to be law but they exist in
the society as a matter of practice and observance
2. His theory also accepts that the legal system might permit a court to apply a moral standard in
resolving a case. This won’t mean that morality triumphs over law rather that the rules of
recognition took morality into account while creating a new law.

Concept of Rules and Obligations

The key to understanding Hart’s positivism is to appreciate the nature of obligation as this obligation has
been overlooked in the command theory of Austin. Comparing Austin’s theory to a gunman writ
situation, Hart propounds that in a society people follow a vast number of rules not because they fear
retribution (penalty) but because they think it right to do so. These rules are used by individuals to
justify their actions, to make claims of right and to criticise the conduct of others. Also, there exist a
number of laws that individuals do not like but in most viable societies these individuals ought to follow
these rules as they agree that these rules were made according to certain accepted processes.

A rule implies an obligation but not all rules are obligatory. The sense of obligation arises from social
pressure. The point at which a rule becomes a rule of obligation is uncertain. There are two kinds of
obligations:
 i) Moral Obligation: when the social pressure is generated by common hostility that produces
feelings of guilt or shame but falls short of physical sanctions
ii) Legal Obligations: when the social pressure takes the form of physical sanctions, there is a
rudimentary kind of law imposing legal obligations.

These obligation rules arise out of the common belief that they are necessary for maintaining social life
for instance thou shall not kill, thou shall not steal, etc.

Every society displays obligation rules. Some rules are ubiquitous while others are indigenous. These are
primary rules of obligation that arise spontaneously and predate the establishment of formal
legislatures, courts and governments. For instance: those against murder, theft, etc. However, as society
gets larger and more complex, the shortcomings of a rudimentary set of laws become evident and the
need for a different type of rule is felt. Hart called these rules as secondary rules of obligation.

There are 3 chief defects in a primitive system of laws:

i) No authoritative means of resolving doubts about the meaning and application of laws
ii) Primary rules in primitive societies are relatively static
iii) Primitive society has nothing resembling present day courts that can authoritatively resolve
disputes arising from violation of laws

The secondary rules provides for:

i) Authoritative recognition of legal rules

ii) Changing of legal rules with a changing society
iii) Adjudicating disputes concerning the observance of legal rules
iv) These rules typically establish courts, legislative and executive governments.
v) define powers of the above bodies, lay down procedures for their exercise and prescribe
criteria for the recognition of primary rules

In most countries, the secondary rules of obligations are set out in a written constitution. The IPC 1860
consist of primary rules while Constitution of India consists of secondary rules. Secondary rules have
particular application to officials. Official acceptance is the critical internal aspect that makes these rules
possible.

Internal and External aspects of a legal rule

Appreciation of the sense of obligation allows us to perceive the internal aspects of a legal rule in
addition to its external manifestations. The internal aspect of a rule reveals the sense of obligation to
observe the rule. I may say for instance that It is the law in the kingdom of Saudi Arabia that a person
must not consume alcohol and think no further about it. This is my external point of view. On the
contrary, when I say I have an obligation under the Indian Constitution to not discriminate a person on
the basis of his caste, I am not only stating the law but at the same time expressing my obligation to
observe the rule. Hart concede that often people do not accept a rule but follow it to avoid sanction but
he observed that the challenge for a legal theorist is to remember both these points of view and not to
define one of them out of existence. Joseph Raz also identified a third viewpoint known as the detached
viewpoint which can be expressed through the statements made by the lawyers and law teachers in
explaining law on some matter using normative language but not normative commitment. Hart was also
an empiricist but believed that by acknowledging the internal viewpoint of a legal rule we aren’t
mystifying the notion of law rather we illuminate it.

The Rule of Recognition and Validity and efficacy of laws

Secondary obligation rules typically stand in a hierarchal relation to each other and their relation is
determined by a superior rule known as the Rule of Recognition. The Rule of Recognition provides the
ultimate criterion for verifying the validity of laws. When a parliament enacts laws and a judge finds
rules to be valid according to the rule of recognition, they aren’t following anyone’s command. They are
accepting and observing from the internal point of view. A legal system in the modern era arises when
two conditions converge:

i) The primary rules which are considered valid by the rule of recognition are generally obeyed
by the citizens
ii) The rule of recognition is accepted by officials as the standard of official behaviour.

The rule of recognition may change through peaceful transition, through foreign conquest or by violent
domestic revolution. The primary rules of obligation largely remain unaffected while the struggle over
the rule of recognition goes on. It is not always easy to find an ultimate rule of recognition in a legal
system. Hart also stated that a society without a rule of recognition is also possible.

Rule of recognition and courts: The obvious place to look for the rule of recognition is the national
constitution. William Wade states that rule of recognition is a political fact which the judges themselves
are able to change when confronted with a new situation. These courts recognise new political realities
and moves on with times. They enforce the laws of the “Kingless Parliaments” because they followed
revolution which changed the political order. Sometimes the political order might not be so clear and it
is during this point of time, the courts play a decisive role in determining the political outcome. For
instance in the case of R (Jackson) v. HM Attorney General (Fox Hunting Case) where the validity of the
Parliament Act was in issue, the judges unanimously upheld the 1949 Act and the decision effectively
relocated the ultimate legislative authority in the House of Commons by revision Britain’s rule of
Recognition. Hart argues that the rule of recognition is accepted by the officials not as an arbitrary
maxim but for deeper reasons of political morality.

It is evident that a sophisticated legal system can exist without an ultimate rule of recognition. It is not
possible to find an ultimate rule of recognition in the US. Also in the UK, both the Parliament and the
superior courts make law. The laws made by one authority may contradict the laws of another. The rule
of recognition is therefore hard to establish even in the UK. Also there exists legal systems with clear
ultimate rule that resolves conflicts. They are mostly Authoritarian regimes.
For Hart, International Law does not qualify as a legal system as it lacks an authoritative rule of
recognition. But he does consider them as laws as he believes that laws can exist without a legal
system. International rules resemble the primary rules of obligation in a primitive society.

Hart on Law and Morality

He denied any necessary connections between law and morality but however appreciate the many ways
in which the law is connected with morality. In his position on law and morality, hart was careful to
distinguish the validity of laws from the efficacy of the legal systems. Acceptance is the basis of a legal
system. Hart agrees that a legal system requires a minimum content of natural law. However, there shall
be laws that are considered to morally repugnant and yet will still be valid if they satisfy the criteria set
by the rule of recognition. His interesting debate with Radbruch, Fuller and Dworkin on the ‘grudge
informers case’ magnifies his perspective regarding the separation of morality and law. While debating
on this case, Hart took the view that by denying the legality of the Nazi laws we won’t gain anything
productive apart from fidelity to law. He argued that Nazi laws were laws too but too iniquitous to obey
or apply. We may have a moral duty to disobey human laws but we do not advance clear thinking by
denying their legality status. Hart saw that there are many laws which are connected to morals but
these were, for him, not necessary but contingent connections. He also states that morality constantly
influences the law making procedures in both the legislature and the judiciary. The language of law is
open textured and hence leave judges with an option to take morality into account in identifying the
existing law.