8 The Philosophy of HLA Hart

(7.1) Introduction

(7.1.1) HLA Hart – A Biographical Overview1

Herbert Lionel Adolphus Hart was born in 1907. His family background bore little connection with academics; both his parents came from migrant Jewish families involved in the tailoring trade, which led them to establish a highly successful upmarket clothing business in Harrogate, England. Hart graduated in 1929 from Oxford University. Despite his philosophical leanings, he opted for the Bar, and practised in the Chancery Court till about 1940. During World War II he worked in military intelligence. After the war, he took up a teaching fellowship in philosophy at Oxford. In 1952 he was made Professor of Jurisprudence of the University. Even though at the time of his appointment he had little experience in the subject and barely any publications, he began to make fundamental seminal contributions to the subject within a few years.2 The Concept of Law, his most influential book, was published in 1961. Hart was strongly influenced by philosophers such as Ludwig Wittgenstein and JL Austin, and his academic career was marked by several celebrated debates on law and morality with Lon Fuller, Lord Devlin, Ronald Dworkin and others. His last years were marked by extreme distress; in particular, newspaper reports accusing his wife of having been a Soviet spy caused a severe nervous breakdown. HLA Hart died in 1992.

(7.1.2) The Task Before Us

Hart belongs to the positivist school of jurisprudence, of which Bentham and Austin are noted members. And yet his contributions mark a radical departure from the latter. The key to this seeming paradox lies in an insight so simple that it often eludes due comprehension; namely the assertion that laws are nothing but rules. But is that not obvious? Not really. This is because Hart tends to interpret

1  Facts mentioned in this section have been mostly sourced from Nicola Lacey, A Life of HLA Hart:

The Nightmare and the Noble Dream (OUP 2004).

2See e.g. his articles ‘Definition and Theory in Jurisprudence’ (1954) 70 Law Quarterly Review 37; ‘Are There any Natural Rights?’ (1955) 64 Philosophical Review 175; ‘Positivism and the Separation of Law and Morals’ (1958) 71 Harvard Law Review 593.

the term ‘rule’ in a very specific way, which is intrinsically incompatible with Bentham’s and Austin’s treatment of laws as commands. In fact so fundamental is this incompatibility that it marks the location of the radical departure we mentioned earlier.

To understand Hart, therefore, we have to contextualise his contributions within the larger discourse of legal positivism; otherwise we shall surely end up with an understanding that is at best incomplete and at worst downright distorted. We begin by briefly recalling what we know of classical positivism: this includes not only what positivism stands for but also the thinking behind it. Next we examine the shortcomings of classical positivism, specifically the shortcomings Hart himself identifies; this is necessary because they mark the starting point of Hart’s own contributions. From here on we focus on the solutions Hart suggests to overcome these shortcomings. The fourth section addresses the internal aspect of law, the main distinction between Hart’s rules and his predecessors’ commands. Next we examine Hart’s other fundamental insight, namely that the law involves two different kinds of rules, primary and secondary. Lastly we look at the implications of Hart’s work on allied issues like morality and justice.

(7.2) Classical Positivism – A Recap

Legal positivists drew much inspiration from Renaissance-era scientists who rejected explanations that involved notions like divine will or higher law or purpose, whose existence or validity could be neither proved or disproved. One key aspect of this new scientific method involved how facts were perceived; unlike in earlier times, only something whose existence is determined empirically (that is, objectively through observation) is considered a fact. This objectivity was to be achieved by maintaining a separation or distance between the observed and the observer. The observer took care not to influence what was being observed. Even if what was being observed was an experiment set up inside a laboratory, the observer took care not to intervene once the experiment had commenced. This is known as observing from an external viewpoint.

Both empiricist philosophy (i.e. the belief that knowledge comes from observation and other sensory experience) and the external viewpoint played critical roles in the discourse of legal positivism. Positivists contended that that validating laws on the basis of whether or not they conform to norms of divine will or morality represented a futile quest, since even an unjust law will continue to function as law: as Austin said, ‘The existence of law is one thing; its merit or demerit is another.’3 Or, in the words of Hart himself: ‘[I]t is in no sense a necessary truth that laws reproduce or satisfy certain demands of morality … .’4 This is known as the separability thesis, that is, the thesis that the validity of law is separate from its conformance with morality.

3John Austin, The Province of Jurisprudence Determined (Wilfred E. Rumble ed, rev edn, CUP 1995)

157.

4HLA Hart, The Concept of Law (2nd edn, OUP 1994) 185-86.

Positivists also postulated instead that the question whether a law is valid or not should be determined on the basis of facts empirically observable and determinable from an external viewpoint; this is known as the social fact thesis. For example, when an Austinian sovereign issues a command, or when a legislature passes a bill, these events are facts whose existence can be proved or disproved through empirical evidence. The third central premise of positivism, the conventionality thesis, claims that law necessitates ‘a kind of convention or social practice … among officials on the criteria for membership in the category “law”.’5 This thesis is associated with Hart, so we shall examine it in greater detail later.

(7.3) Hart’s Contributions – Shortcomings of Classical Positivism

(7.3.1) Orders Backed by Threats, and the Nature of Commands

Our discussion on classical positivism tells us that Austin characterises law as a command, that is, the ‘expression or intimation of a wish, with the power and the purpose of enforcing it’.6 Hart points out that equating commands with ‘orders backed by threats’,7 as he calls it, is essentially misleading. It obscures the distinction between a bank robber ordering a cashier, and a general commanding or giving an order to a sergeant. In the latter case, can we say that the predominant reason for the sergeant obeying the general was the fear of sanctions? In his later book Essays on Bentham (OUP 1982) Hart suggests that when a general commands a sergeant, he intends the sergeant to act on his command, that is, he requires the sergeant to recognise that he wants him to act. And once the sergeant recognises that the general requires him to act, then this recognition itself ‘should function as at least part of the hearer’s reason for acting.’8 In other words, the command itself, and not any accompanying threat of sanctions, constitutes the sergeant’s reason for action.

Also, while certainly the bank robber’s threat to shoot may oblige the cashier to comply, can we say that it also obligates compliance? To Hart’s mind, describing this as an obligation is inappropriate. On the other hand, certainly the general’s command to the sergeant, or for that matter any issuance of command or generally any exercise of authority carries with it an obligation to comply.

(7.3.2) The Habit of Obedience

Habits can be either personal, i.e. specific to individuals; or social, that is, prevalent generally among a group. An example of the first is the habit of reading

5Jules Coleman, ‘The Conventionality Thesis’ (2001) 35 supp s1 Noûs 354, 356.

6Austin (n 3) 30.

7See eg Hart (n 4) 6.

8HLA Hart, Essays on Bentham (OUP 1982) 253.

newspapers in the morning, while the practice of a group of students to, say, watch a film every Friday, belong to the second category.

We know that Austin invokes the notion of ‘habit of obedience’, by which he meant social rather than personal habits, as a vital component of his characterisation of sovereignty. Hart’s contention is that understanding obedience to laws as a mere social habit habit leaves several questions unexplained.

First, is a mere habit a strong enough consideration to ensure compliance with the law, particularly in the face of strong reasons to disregard the law?9 Secondly, in a country where people are habituated to obey their sovereign Rex I (to use the names Hart himself gives to his hypothetical rulers), what happens when the sovereign is replaced by his successor Rex II? Can we say he will not be considered a sovereign till the populace’s habitual obedience is empirically established? In which case, what happens to the orders Rex II issues early in his regime, at a time when the people’s habitual obedience had not yet been established? Are these orders denied the status of law since Rex II’s status as sovereign has not been established?10

(7.4) Hart’s Contributions – The Internal Aspect of Law

It is clear at this point that understanding law in terms of either orders backed by threat or the habit of obedience does not yield satisfactory results, as they are unable to account for certain important features of law. The discussion on habit of obedience entails one useful consequence, though. It serves to highlight certain key differences between habits and rules, and thereby pave the way for a revised understanding of what law is.

(7.4.1) Habits and Rules

Hart identifies three respects in which rules differ from mere habits. First, deviation from a habit may not attract criticism. If a student refuses to go for a film show, at best his friends may be disappointed, but surely his decision will not be regarded as a fault or a lapse or even a wrong. On the other hand, deviation from rules ‘are generally regarded as lapses or faults open to criticism’, and hence if someone even thinks of deviating from or breaching a rule, others impose pressure on him not to do so.11 Secondly, any deviation or breach not only evokes criticism, but is also regarded as a good reason for criticism:

9Hart (n 4) 52.

10ibid 53-54.

11ibid 55.

‘Criticism for deviation is regarded as legitimate or justified in this sense, as are demands for compliance with the standard when deviation is threatened.’12

To appreciate these two points, let us take the help of an example. Suppose a sovereign Rex I had issued in the past a command that all vegetable sellers must pay a tax of 20% on their income. Now, if the vegetable sellers in his domain were merely habituated to follow this, it would mean merely that each vendor would pay the tax merely because that is what he has been doing for so long, and if one seller decides not to pay, then others will not consider this such a big deal. However, now let us imagine that the mandate to pay the 20% tax is a rule as we know it. What happens if seller X refuses to pay up? Surely it is likely that the other vendors around him will be very critical of him. And of course there may exist several reasons for doing so, for example, that he will bring disrepute to sellers in the locality, or that retributive action by Rex I may affect other vendors around too. But apart from these, one criticism that may be conceivably levelled against X is: ‘Why are you doing something that is contrary to what the law says?’ In other words, breaching a law is in itself ground of criticism. It is also recognised, moreover, that not only may X be in fact criticised for breaking a law, but this in fact justifies such criticism.

(7.4.2) The Internal Aspect

The third key distinction between habits and rules lies in what Hart describes as the ‘internal aspect’ of the latter. A habit can be observed and determined from an external viewpoint; a paan seller near the cinema hall may observe students queuing up for tickets, and conclude that they have a habit of watching a film every Friday. Similarly, he may observe vegetable sellers paying 20% tax, and conclude they are for some reason in the habit of doing so. Hence to an outsider the two behaviours may be similar. But are they motivated by the same considerations? Clearly not. As Hart points out, when a rule exists, at least some individuals must consider it to be a general standard of behaviour to be followed by all to which it applies.

To explain this, Hart derives examples from various games, which we may also do. In cricket, a bowler is permitted to bowl either round the wicket or over the wicket, whichever he prefers or is even habituated to do. But if he wishes change from round the wicket to over the wicket, or vice versa, the rules require him to inform the umpire. And if he changes his bowling action without doing so, then the batting side will surely appeal to the umpire. In other words, deviance from the rule generates criticism and demands for conformity, expressed in normative language using words like ‘must’, ‘should’, and ‘ought’.13

Hart strenuously denies that the internal aspect is a matter of ‘feelings’ or emotions about what is right or wrong. Instead he uses the evocative phrase:

12ibid 55-56.

13ibid 56-57.

‘critical reflective attitude’;14 perhaps we may describe it in simpler language as ‘application of mind’. It entails accepting that the rule is a valid standard for determining the rightness or wrongness, or the validity or invalidity, of others’ and even one’s own conduct. One may not believe in the rightness of the standard, one may even disobey its stipulations, but the individual has to accept that the standard is used to determine right and wrong, and hence take it into account when evaluating either others’ or his own actions. Accepting something as a rule involves accepting that it will function as a standard, that is, it can be used to justify or criticise certain conduct as right, wrong and so on.15 Of course, not every individual can be guaranteed to think of rules in this manner; surely there are many who do not do so. Even so, the fact remains that this is how rules function.

(7.4.3) The End of Classical Positivism?

So why does Hart place such emphasis on the internal aspect? Simply because according to him, rules generally tend to work in this way. Any rule amounts to a standard for evaluating others’ and one’s own conduct, and accepting a rule as a rule involves accepting its character as a standard. That is, accepting that that if someone thinks deviations from the rule are wrong or invalid merely because they deviate from the rule, this opinion is a justifiable one. This feature is wholly absent in characterisations of law as orders backed by threats, to which acceptance as standards of right and wrong are wholly extraneous.

When discussing the social fact thesis, we noted that Austin’s ‘command of sovereign’ theory has the advantage that its elements can be objectively determined as true or false. This is direct emulation of natural science methodology, of which empirical verification from an external viewpoint is also a key feature. However, Hart’s internal aspect, and particularly his notion of critical reflective attitude, are clearly not capable of empirical verification. In the introduction to his Essays in Jurisprudence and Philosophy he describes the methodology of empirical sciences as ‘useless’ for understanding law and other normative systems present in society.16 In this respect, Hart differs crucially from classical positivists. However, his endorsement of most other tenets of positivism, particularly the separation of law and morals (and the rejection of morality as a determinant of legal validity), marks him out as a positivist.

14ibid 57.

15ibid.

16HLA Hart, Essays in Jurisprudence and Philosophy (OUP 1983) 13.

(7.5) Hart’s Contributions – Two Kinds of Rules

(7.5.1) Primary Rules

Hart’s second fundamental insight is that law cannot be reduced to only one kind of rules, namely those that impose duties. The law does not only regulate conduct, in certain cases it also provides powers: it enables the individual to, for instance, buy a house, get married, make a will, and generally create or modify legal rights and obligations. Rules of this kind, which address the rights, obligations, liberties, liabilities etc. of individuals, Hart terms primary rules.

A primitive community may get by on the basis of duty-imposing primary rules alone, customary or at least ‘unofficial’ rules.17 These cannot be said to comprise a legal system, but remain only a collection of individual standards of conduct having little in common amongst themselves. In particular they suffer from three distinct shortcomings. First, no procedure, standards, or authority exist to determine issues like whether a rule is actually a legal rule or not, or the scope or

17Hart (n 4) 92.

ambit or application of a particular rule. Hence in this and other similar communities, legal rules remain uncertain in regard to these issues. Secondly, in the absence of procedures or rules for amending or modifying primary rules, laws take a long time to transform from habits into customs, and an equally long time to stop being recognised as law; for this reason they may be termed static in character. Lastly, unless an authority exists to authoritatively resolve disputes and determine violation of rules, administration of law in the community will remain inefficient.

(7.5.2) Secondary Rules

Hart suggests that these lacunae may be best redressed by supplementing primary rules with secondary rules, or what he describes as rule about primary rules.18 These rules do not of themselves impose obligations on individuals, or facilitate their performance of legal acts. Instead, they govern how primary rules may be created, modified, administered and so forth. According to Hart, it is the presence of these secondary rules that imparts to a legal system its systemic character, i.e. transforms a ‘regime of primary rules’ into a legal system in the fullest sense of the term.19

The problem of uncertainty may be resolved through a rule of recognition.20 This rule specifies the features or characteristics a rule must possess if the rule is to be conclusively determined to be a legal rule. As a corollary, if a rule satisfies the criteria specified by the rule of recognition, then the rule’s validity is authoritatively established.21 Rules like Articles 107 and 111 of the Indian Constitution, which together specify the procedural requirements a bill must go through before it becomes an Act of Parliament, can be considered a rule of recognition, since fulfilling these requirements are both necessary and sufficient to confer on a bill the status of law. Rules of recognition may vary in complexity across different legal systems. Even the definition of law as the command of the sovereign can be interpreted as a rule of recognition: if the the statement in question is in a nature of a command, and if the person or body that issued it is of

18ibid 94.

19ibid.

20See ibid 94-95.

21ibid 103.

sovereign in character (i.e. that it receives habitual obedience and is not habituated to obey nobody else), then it is a legal rule in character.

The issues of static laws and inefficiency may be addressed through rules of change and rules of adjudication respectively. A rule of change governs the manner in which primary and secondary rules may be introduced, modified and repealed.22 A rule of adjudication empowers certain individuals to authoritatively determine if a primary rule has been broken.23

(7.5.3) The Ultimate Rule of Recognition

A legal system may have many rules of recognition. These need to be validated by a higher rule of recognition. But even these higher rules need to be validated by still higher rules. And since naturally we cannot have an infinite hierarchy of rules of recognition, at some point we have to arrive at the highest or ultimate rule of recognition within a legal system. The question then arises, on what basis is this ultimate rule of recognition validated? To this Hart says simply that ‘[I]t can neither be valid nor invalid but is simply accepted as appropriate for use in this way.’24 Its existence lies in ‘the practice of the courts, officials, and private persons in identifying the law by reference to certain criteria.’25 Hart then talks of a ‘unified or shared official acceptance of the rule of recognition’.26 The existence of a rule of recognition lies in officials accepting it as a standard for determining the validity of other rules. This is nothing but the conventionality thesis mentioned earlier, ‘a kind of convention or social practice … among officials’.27

Hence as long as officials display a ‘shared acceptance’ of the ultimate rule of recognition, that is, adopt a critical reflective attitude towards it, the rule exists. If officials fail to do so, then not only will it not exist, but even the laws of the community shall cease to comprise a legal system. Hart admits that its existence can be treated as both fact and law: as fact because its existence can be objectively inferred from an external standpoint by observing officials’ compliance with it; and as a law because surely the rule identifying other rules of law should itself belong to the legal system. He resolves this by saying that it can be regarded from two points of view, i.e. as an externally observable fact as well as a rule accepted by officials from the internal point of view.28

The implication of this is that a functioning legal system necessarily entails officials adopting the internal point of view in respect of secondary rules.

22ibid 95-96.

23ibid 96-97.

24ibid 109.

25ibid 110.

26ibid 115.

27See Coleman (n 5).

28Hart (n 4) 111-12.

Otherwise the ultimate rule of recognition will simply not exist.29 Neither will other secondary rules be functional. This is because officials deviating from secondary rules cannot be equated with individuals disobeying primary rules.30 The law does not compel individuals to always think about the rightness or wrongness of their conduct from the internal point of view. Hence their external obedience to primary rules is enough to sustain the legal system. On the other hand, secondary rules certainly require officials to apply their mind, and critically reflect on their own and others’ conduct.

It is on this basis that Hart formulates his two ‘ minimum conditions necessary and sufficient for the existence of a legal system.’ First, private individuals must at least act in external compliance with primary rules. It is always desirable, but not necessary, for them to apply their mind and view these rules from the internal point of view. Officials, on the other hand, must view secondary rules from the internal point of view. They must not only comply with them, but also treat them as critical reflective standards, and apply their mind to evaluate others’ and their own conduct on the basis of these rules.

(7.6) Conclusion

To understand Hart’s contribution to positivism, we need to first examine what positivism’s objectives are. In Hart’s language, this entails generating a ‘theory of what law is which is ‘both general and descriptive’.31 By ‘general’ is meant universally applicable across all legal systems. It is in pursuance of this objective that Austin adopted the simple model of a sovereign’s commands. But the endeavour ultimately proved self-defeating: the model proved so skeletal that very few real-life legal systems actually corresponded to its parameters.

Hart’s model corresponds to real-life legal systems much more closely, inter alia because it does not insist on a sovereign bestowed with illimitable power. Interestingly enough, though, it is through his reassessment of what is meant by ‘law’, specifically his highlighting of law’s internal aspect, that he achieves this correspondence. In the process, he also severely undermines one of classical positivism’s central tenets, namely perception of law from an exclusively external viewpoint. But this is surely for the best. Classical positivism’s perspective is useful because it seeks to place law on an objective footing, something that was severely lacking in its predecessors’ understanding of law. However, as Hart rightly points out, this is not the way law functions. In short, therefore, Hart could be said to have rendered positivism a signal service. By weeding out its anachronistic aspects (by which I mean aspects that fall short of being descriptively appropriate), by emphasising positivism’s other core aspects such as the separability thesis, and by recasting it in a manner that much more closely

29ibid 116.

30‘[O]bserying a rule (or an order) need involve no thought … that what he does is the right thing both for himself and for others to do: he need have no view of what he does as a fulfilment of a standard of behaviour for others of the social group.’ ibid 115.

31ibid 239.

approximates law as we perceive it, he has provided positivism a new lease of life which it might not have otherwise received.

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1. Jules Coleman, ‘The Conventionality Thesis’ (2001) 35 supp s1 Nou s 354.
2. HLA Hart, ‘Are There any Natural Rights?’ (1955) 64 Philosophical Review 175.
3. HLA Hart, ‘Definition and Theory in Jurisprudence’ (1954) 70 Law Quarterly Review 37.
4. HLA Hart, ‘Positivism and the Separation of Law and Morals’ (1958) 71 Harvard Law Review 593.
5. HLA Hart, Essays in Jurisprudence and Philosophy (OUP 1983).
6. HLA Hart, Essays on Bentham (OUP 1982).
7. HLA Hart, The Concept of Law (2nd edn, OUP 1994).
8. Nicola Lacey, A Life of HLA Hart: The Nightmare and the Noble Dream (OUP 2004).