H.L.A. Hart and Legal Rule
Professor Hart is recognized as the foremost contemporary advocate of British legal positivism. His seminal work, The Concept of Law, published in 1961, highlights his expertise as a linguist, philosopher, barrister, and jurist.
Hart’s approach to the concept of law centers on the idea that “where there is law, human conduct is in some sense made non-optional or obligatory.” He begins his analysis by critiquing Austin’s theory of law as a command, arguing that while the concept of command might explain a coercive order in specific situations, it fails to account for why a statute applies universally, including to its creators. Furthermore, Austin’s model does not adequately explain the existence of various types of laws, such as those conferring powers, or the continuation of pre-existing laws, which cannot be simply attributed to a command.
Habit and Rule
Hart refutes the notion of “tacit command” and points out that Austin’s idea of a “habit of obedience” does not sufficiently explain the transition of sovereignty, as it overlooks the crucial distinction between “habit” and “rule.” While habits are based on common behavior, they lack the “internal aspect” of rules, which serve as standards for judging and condemning deviations. In contrast, the succession of sovereignty is based on the acceptance of a rule that legitimizes the successor, rather than on a mere habit of obedience.
Hart emphasizes that the importance of rules has been undervalued. He distinguishes between “being obliged” and “having an obligation” by focusing on the concept of “rule.”
Rules are often seen as imposing obligations when there is a strong societal demand for adherence and when those who deviate or threaten to do so face significant social pressure. These rules can originate entirely from customs, without a formal system of penalties for violations. The social pressure might manifest only as a widespread, diffuse response of hostility or criticism, which may not involve physical punishment but could instead be limited to verbal disapproval or appeals to an individual’s sense of respect for the rule. This pressure might also rely on emotions such as shame, remorse, or guilt. When the pressure takes this form, these rules are typically classified as part of a group’s moral code, with the obligations under these rules considered moral obligations.
Conversely, when physical sanctions are a common or prominent form of pressure—though these sanctions may not be precisely defined or enforced by officials but left to the community at large—such rules can be seen as a primitive or rudimentary form of law. Sometimes, both moral and rudimentary legal pressures may support the same rule, with no clear indication of which is primary. Distinguishing between a rule of morality and rudimentary law can be challenging. The seriousness of the social pressure behind the rules is the main factor in determining whether they are seen as creating obligations.
Two other characteristics often accompany this primary factor. Rules backed by significant social pressure are considered important because they are viewed as essential to the maintenance of social life or a highly valued aspect of it. For instance, rules that restrict violence are seen as necessary and are therefore associated with obligations. Rules requiring honesty, truthfulness, the keeping of promises, or specifying the duties of individuals in specific social roles are also tied to concepts of obligation or duty.
The conduct these rules mandate might benefit others but often conflicts with the desires of the person bound by duty. Therefore, obligations and duties frequently involve sacrifice or renunciation, creating a potential conflict between obligation and personal interest. The metaphor of a bond or chain, which is implied in the word “obligation,” and the idea of debt associated with the word “duty,” can be explained by these three factors distinguishing rules of obligation or duty from other types of rules. In this metaphor, social pressure acts as a chain that binds individuals with obligations, restricting their freedom to act as they wish. The other end of the chain is sometimes held by the community or its representatives, who enforce performance or impose penalties. In other cases, this responsibility is given to a private individual, who may choose whether to enforce the obligation or accept an alternative. The first scenario typically reflects duties or obligations under criminal law, while the second reflects civil law, where private individuals are seen as having rights corresponding to obligations.
Hart divides rules into two main types: primary rules and secondary rules.
1. Primary Rule
Primary rules either prohibit or mandate specific actions, thereby creating duties or obligations. Primary rule imposes an obligation to act in a certain manner. Primary rule determines what acts shall be done and what acts are prohibited by law. Primary rules impose specific duties on citizens, requiring them to act in a certain manner or face legal sanctions. Hart describes these primary rules as “basic” because they directly instruct individuals on what they are legally allowed or prohibited from doing. These rules establish clear duties and are concerned with regulating physical actions and behaviors under the law.
For example:
Criminal Laws: A law that makes theft illegal and subject to punishment is an example of a primary rule, as it directly dictates behavior by prohibiting theft.
Contractual Obligations: Primary rules also govern contracts, such as the obligation to fulfill the terms agreed upon by the parties involved. These rules outline the duties each party owes to the other.
Property Laws: Another example of a primary rule is the law against trespassing, which establishes a duty to respect others’ property rights and prohibits unauthorized entry.
Traffic Regulations: A law that mandates stopping at a red light serves as a primary rule by imposing a duty on drivers to halt their vehicles, ensuring the safety of road users.
2. Secondary Rule
Secondary rules establish the procedures by which primary rules are created, modified, or enforced. Hart refers to the secondary rules as “rules about the rules.” Hart suggests that secondary rules provide for actions which may not amount to physical movement or obligations but to the creation of variation of duties or obligations. Secondary rules are essential in any reasonably complex society because they provide the necessary procedures to identify, modify, or challenge primary rules. These secondary rules ensure that there is a clear system for understanding what the primary rules are and how they can be adapted or contested. For Hart, the combination of primary and secondary rules is what defines the essence of a legal system, as it creates a structured and dynamic framework for governing society.
Types of Secondary Rule
I. Rules of Recognition
Rules of recognition serve as a mechanism for determining what constitutes a legitimate primary rule. In a semi-developed legal system, these rules might involve referencing an authoritative text or standard that clearly identifies the established primary rules. As society grows more complex, the criteria for recognizing primary rules also become more sophisticated, reflecting the increasing intricacies of the legal system. Hart considers the rule of recognition to be the most important among secondary rules. In modern legal systems, where multiple sources of law exist—such as a written constitution, legislative enactments, and judicial precedents—the rules of recognition can be quite complex. They establish a hierarchy that determines which rules take precedence over others. Hart views this as a solution to the problem of uncertainty, as it provides a clear framework for identifying and prioritizing valid legal rules within a complex legal system. The most important function of the rule of recognition is that it allows us to determine the validity of a rule.
II. Rules of Change
Rules of change grant citizens and officials the authority to alter the existing legal framework by introducing new rules or laws, thereby conferring legislative powers. For example, Article 368 of the Indian Constitution empowers Parliament to amend the Constitution and its structure, enabling constitutional revisions. These rules govern the processes by which laws are modified, added, or repealed. The typical method for such changes is through ‘legislative enactment and repeal,’ ensuring that the legal system remains adaptable and responsive to evolving societal needs.
III. Rules of Adjudication
Rules of adjudication establish the procedures for interpreting and applying the law in specific cases, particularly when there is disagreement or uncertainty about what the rules require. This function is typically carried out by judges and courts. In a complex society, these rules are crucial for ensuring the efficient operation of the legal system, addressing the shortcomings of a system based solely on primary rules. Rules of adjudication provide criteria for determining whether a primary rule has been violated and outline the procedures to follow once such a violation is confirmed. Judges, commissions, and regulatory agencies are empowered to apply these secondary rules of adjudication when necessary, ensuring that the legal process is fair and consistent.
The significant advantage of incorporating secondary rules alongside primary rules in a legal system is that they provide specific criteria to determine which primary rules are in effect, how these rules can be modified, and what sanctions are appropriate when a primary rule is violated. As Hart noted, “These secondary rules provide the centralized official ‘sanctions’ of the system.” This is because secondary rules of adjudication empower judges to impose official sanctions on those who disobey the law, doing so within the bounds of their authorized power. While primary rules impose duties on citizens to adhere to specific legal obligations, secondary rules guide the application and enforcement of these duties. For Hart, the union of primary and secondary rules captures the essence of a legal system, creating a structured and cohesive framework for law.
| PRIMARY RULES | SECONDARY RULES |
| They are also called duty imposing rules. | These are the rules that confer powers. Public or Private |
| These rules are called the primary rules of obligation | These rules are secondary to the primary rules |
| Human beings are mandated to do or refrain from doing certain acts. | These rules do not lead to a mere physical movement or change, but create duties and obligations. |
| According to Hart, primary rules alone do not suffice, they need secondary rules as well. | Secondary rules act as complementary to the primary rules. |
| Example, rules of the criminal Law, law of tort, etc. | Example, the making of wills, marriages, or power conferring rules such as composition of government and powers of the courts, legislatures and other official bodies. |
Criticism
I. Ronald Dworkin
Ronald Dworkin criticizes the legal obligation theory by Hart for its descriptive nature, which is morally neutral and lacks a justificatory aim. Dworkin found it difficult to understand how Hart justified the imposition of legal obligations through the use of primary and secondary rules, as well as through the internal and external perspectives of law. According to Dworkin, Hart failed to adequately address the normative nature of conventional rules, which, in Dworkin’s view, requires some moral justification for why individuals act in accordance with these rules.
Dworkin argued that rules cannot merely exist as factual states of affairs; they must be justified by good moral grounds. He believed that Hart’s social practice theory did not explain why individuals are under an obligation, such as why judges must follow social rules. For Dworkin, individuals adhere to a standard pattern of behavior because deviating from it might offend others, and the obligation to follow social rules arises from the moral basis that individuals have to respect those rules, rather than from the rules themselves.
Dworkin also critiques Hart’s use of ‘rules’ as being too broad and rigid. He argues that rules have an “all or nothing” nature—if the specific facts outlined by a rule are present, then the rule must apply; if not, the rule cannot apply. Dworkin contends that it is in these areas where rules do not apply that judges exercise discretion, and this is where legal principles come into play.
For example, in the case of Riggs v. Palmer[1], the principle that “no one shall be permitted to profit by his own fraud” holds just as much validity as any traffic law. Dworkin argues that there is no way to differentiate the binding authority or certainty of rules from that of principles, beyond the circular argument that only rules can be legal because they are validated by other rules.
Thus, Dworkin identifies a flaw in Hart’s model of a legal system, which, he argues, unjustifiably excludes legal principles. For Dworkin, principles are equally essential to the legal system, and their omission in Hart’s framework overlooks a significant aspect of how law operates.
II. J.C. Smith
Another objection to Hart’s concept of legal obligation concerns the social factor inherent in his model. J.C. Smith critiques Hart’s analysis, suggesting that it closely resembles an Austinian sanction-based theory of obligation.[2] Smith argues that:
“Hart’s theory of law, by attempting to explain the binding force of legal obligation in purely factual terms is based on the existence of rules within a legal system and the serious social pressure that arises from deviating from these rules is no more capable of providing a foundation for the ‘ought’ of legal obligation or law than Austin’s command and sanction theory.”[3]
Smith’s objection stems from two key factors. First, he believes that the legal binding nature of an obligation must be explained in detailed terms using the concept of “ought,” which implies a moral or normative dimension. Second, Smith asserts that legal obligations should apply universally, not just to individuals who “accept” the rule from an internal perspective. He questions how a legal obligation can emerge from a legally valid rule that is not also a social rule.
Benjamin C. Zipursky highlights an ambiguity in Hart’s account. Hart suggests that legal obligations exist only where there are social rules that are generally followed. However, Hart also implies that some individuals within a community may not be aware that they are under such obligations. This raises concerns about how legal obligations can be said to exist if they are not universally recognized or understood, challenging the coherence of Hart’s model.
III. Ernst Fredrik Eckhoff
Eckhoff argues that the concepts of what is binding and what constitutes part of a legal system are distinct questions. He suggests that a legal system includes legal standards or “guidelines” that provide judges with reasons or arguments to consider when making decisions that require the weighing of reasons.[4] These guidelines can take various forms, such as the maxims of equity, the concept of reasonableness, principles like “no man may profit from his own wrong,” canons of statutory interpretation, public policy considerations, and the principles governing the application of precedent. These elements are integral to judicial decision-making, offering a framework within which judges can interpret and apply the law.
IV. Roscoe E. Hill
Roscoe E. Hill critiques Hart’s concept of legal obligation, arguing that it undermines Hart’s stance as a legal positivist. Hill identifies two distinct methods presented in The Concept of Law for analyzing legal obligation[5]:
- A traditional positivist analysis of legal obligation in terms of validity.
- An analysis of legal obligation in terms of “the general idea of obligation.”
According to the positivist doctrine, every valid law inherently imposes a legal obligation. In Hart’s framework, a legal obligation arises from a rule that meets the criteria of the rule of recognition. Hill emphasizes that, since for Hart, legal validity is synonymous with establishing legal obligation, Hart should have explicitly stated that legal obligation could be analyzed similarly to legal validity. Instead, Hart introduces the concept of the general idea of obligation, which he argues must be understood to grasp the concept of legal obligation.
For Hill, this move is unnecessary from a positivist perspective. Positivism holds that legal validity alone is sufficient to establish legal obligation, without the need to invoke broader, more abstract notions like the general idea of obligation. Hill’s critique suggests that by introducing this general idea, Hart compromises his commitment to legal positivism, as it adds an additional layer of analysis that is not strictly necessary according to positivist principles.
V. R. W. M. Dias
Professor Dias critiques Hart’s theory by arguing that Hart does not provide an adequate criterion for distinguishing between a private club’s system and a legal system. According to Dias, while Hart acknowledges that a private club’s system can only exist within and presupposes a legal system, he overlooks the crucial differences between them.
Dias points out that both a club and a legal system are institutions, but the distinction between them lies at the institutional level which is a dimension that Hart’s theory does not adequately address. Dias suggests that Hart’s analysis should take into account the unique nature of institutions to properly differentiate between a private club’s system and a legal system, emphasizing that these distinctions are crucial for a comprehensive understanding of law.
Professor Dias critiques Hart’s concept of law, arguing that Hart fails to clearly distinguish between a legal and a pre-legal state of affairs. Dias questions Hart’s reliance on the rule of recognition, a secondary rule in Hart’s framework, for determining the validity of primary rules in less advanced social systems. Dias finds Hart’s suggestion to “wait and see whether a rule gets accepted as a rule or not” insufficient, as it overlooks the complexities of establishing a rule of recognition de novo.[6]
Dias further challenges Hart’s characterization of the rule of recognition as a secondary rule, suggesting it resembles more of an acceptance of a specific kind of rule than a power. He notes that some rules of recognition, such as procedural rules, do not confer powers but instead provide criteria for applying other rules. This view is supported by Raz, who argues that the rule of recognition is a duty directed at officials, rather than a power.
Hart’s legal theory is based on the distinction between rules that create duties and those that create powers, with a legal system being constituted by the union of these two types of rules. However, Dias questions the sharpness of this distinction, pointing out that the same rule can create both a power and a duty, or a power with a duty to either exercise or refrain from exercising it. This critique is echoed by Professor Fuller, who illustrates how the same rule may confer both power and duty, depending on the circumstances.
Dias also criticizes Hart’s positivism, noting a disconnect between Hart’s concept of law and his commitment to positivism. Hart argues that the acceptance of a rule of recognition is based on social facts, without delving into the reasons or circumstances that lead to its acceptance. Dias contends that social and moral considerations can influence the acceptance of a rule of recognition, challenging Hart’s separation of law from morality.
Overall, Dias argues that Hart’s concept of law attempts to achieve more than is necessary for identifying laws, yet it falls short in portraying law as part of a broader continuum. This criticism suggests that Hart’s theory does not fully account for the complexities of law and its relationship with social and moral factors.
[1] (1889) 115 N.Y. 506 at 511.
[2] J. C. Smith, Legal Obligation (taken from Benjamin C. Zipursky, “Legal Obligations and the Internal Aspect of Rules” (2006), 75 Fordham L. Rev. 1229).
[3] Frederick Siegler (1967) Hart on rules of obligation, Australasian Journal of Philosophy.
[4] “The Inner Logic of the Law” Eckhoff, Torstein, Friedman, Lawrence M., & Uusitalo, Jyrki, eds., Vernunft unci Erfahrung im Rechtsdenken der Cegenwart, Rechtstheorie supplementary vol. x (Berlin: Duncker and Humblot, 1986).
[5] Roscoe E. Hill, “Legal Validity and Legal Obligation” (1970), Yale Law Journal, Vol. 80.
[6] Dias and Hughes Jurisprudence, 1957.
