All lawyers will share the same mental construct.

If we imagine the world’s lawyers heading

out to work each morning, in all likelihood they would do so with quite different ideas about
where they work, the object of as lawyers, we carry in our heads a picture of the legal system
in which we work. This is not to say that their endeavors, the measure of their success, the
nature of their opponents, even the discipline within which they work. Scholars of
jurisprudence (often situated within particular legal cultures) have worked hard to provide us
with a deeper understanding of the structure of law and legal systems and the role of law in
society.

According to hart his views were that laws are rules made by humans and that there is no
inherent or necessary connection between law and morality—within the framework of
analytic philosophy.1 Hart sought to provide a theory of descriptive sociology and analytical
jurisprudence. With his general insistence on the separability of law and morality, he
established himself as an opponent of natural-law theorists and their efforts to show that law
is an inherently moral phenomenon.2

During his time there were the horrors of fascism and Communism which had led to
numerous jurisprudential theorists to denounce legal positivism for what they perceived as its
excessively deferential attitude toward the directives of legal-governmental officials, he
cogently maintained that such strictures against positivism were based on badly distortive
misapprehensions about its orientation.3

Hart himself was such a theorist, whose espousal of legal positivism stemmed partly from his
resistance to the idea that legal requirements are always morally binding. 4 By making clear
that positivism can fruitfully be drawn upon in furtherance of social justice against the legal
mandates that emanate from the institutions of government, he helped to dispel one of the
most pernicious jurisprudential misconceptions. In so doing, he performed a service not only
for the advocates of legal positivism but also for its detractors.5

1
Raz, J. (2009). The authority of law: essays on law and morality. Oxford University Press on Demand.
2
Tamanaha, B.Z., 2014. The third pillar of jurisprudence: social legal theory. Wm. & Mary L. Rev., 56,
p.2235.
3
Kramer, M. H. (2019). The Legal Positivism of HLA Hart. Cambridge Companion to Legal Positivism,
Forthcoming, University of Cambridge Faculty of Law Research Paper, (11).
4
George, Robert P., ed. The autonomy of law: Essays on legal positivism. Clarendon Press, 1996.
5
Ratnapala, S., 2017. Jurisprudence. Cambridge University Press.
 THE REJECTION OF THE COMMAND THEORY OF LAW

Before defending legal positivism against its opponents, Hart had to save it from its
champions. Hart landed an array of telling blows against the Austinian command model, but
every one of his queries was aimed at demonstrating the inadequacy of a theory that is so
unatoned to the cooperativeness of norms in legal systems. 6 Hart took norms to be standards
which prescribe how people ought to conduct themselves. Normativity, including law’s
normativity, always involves an orientation toward what ought to be; but, as Hart repeatedly
remarked, the “ought” in question is not perforce a moral “ought.”7

Hart proclaimed, “There is a radical difference between rules conferring and defining the
manner of exercise of legislative powers and the rules of criminal law, which at least
resemble orders backed by threats.”8

Dissimilarities between duty-imposing norms and power-conferring norms are especially

salient in public-law settings eats”, Hart drew on a legislative example to accentuate vividly
the divergences between such laws and duty-imposing mandates:9

“If a measure before a legislative body obtains the required majority of votes and is thus duly
passed, the voters in favor of the measure have not ‘obeyed’ the law requiring a majority
decision nor have those who voted against [the measure] either obeyed or disobeyed [that
law]: the same is of course true if the measure fails to obtain the required majority and so no
law is passed”

THE COMPONENTS OF HART’S JURISPRUDENTIAL THEORY.

6
Hackney, James R. Under cover of science: American legal-economic theory and the quest for
objectivity. Duke University Press, 2007.
7
Kramer, Matthew H. "The Legal Positivism of HLA Hart." Cambridge Companion to Legal Positivism,
Forthcoming, University of Cambridge Faculty of Law Research Paper 11 (2019).
8
Kramer, Matthew H. HLA Hart. John Wiley & Sons, 2018.
9
Köpcke, Maris. Legal validity: the fabric of justice. Bloomsbury Publishing, 2019.
 Hart assembled most of the constituents of his own jurisprudential model after he had
completed his critique of the command theory, but he introduced some of them in the course
of that critique. 10

Hart explained that that critical reflective attitude manifests itself as a triad of behavioral
dispositions. Somebody who has adopted the critical reflective attitude in relation to some
duty-imposing norm N is thereby accepting N and displaying a commitment to N. However,
the stance of commitment need not be based on any perception of N as morally worthy. 11 A
person can adopt the critical reflective attitude toward N for moral reasons, of course, but her
embrace of such a stance might alternatively be grounded on self-interested considerations or
some other factors. Hart commented more than once that the motivations which impel
citizens or officials to uphold legal norms can be quite diverse .Anyone who occupies such a
perspective – the internal perspective – maintains that the requirements established by N are
binding on herself and on others..12

In Hart’s parlance, a norm is valid within a legal system if and only if it belongs to the
system as a law that is to be given effect by virtue of its having emanated from one or more
of those aforementioned sources.13 Hence, while all the other laws of the system are valid, the
Rule of Recognition itself as the basis of all validity is neither valid nor invalid.

RULE OF RECOGNITION

In Hart’s parlance, a norm is valid within a legal system if and only if it belongs to the
system as a law that is to be given effect by virtue of its having emanated from one or more
of those aforementioned sources. Hence, while all the other laws of the system are valid, the
Rule of Recognition itself as the basis of all validity is neither valid nor invalid. 14

10
Postema, Gerald J. "Jurisprudence, the sociable science." Virginia Law Review (2015): 869-901.
11
Kramer, M. H. (2019). The Legal Positivism of HLA Hart. Cambridge Companion to Legal Positivism,
Forthcoming, University of Cambridge Faculty of Law Research Paper, (11).
12
Farber, Daniel A., and Philip P. Frickey. Law and public choice: a critical introduction. University of
Chicago Press, 1991.
13
Kammerhofer, Jörg. "Uncertainty in the formal sources of international law: customary international law
and some of its problems." European Journal of International Law 15, no. 3 (2004): 523-553.
14
Brölmann, Catherine M. "Deterritorialization in international law: Moving away from the divide between
national and international law." JE Nijman & PA Nollkaemper, New perspectives on the divide between
national and international law (2007): 84-109.
 As Hart declared, we have to draw on the notion of legal validity “to answer questions which
arise within a system of [legal] rules where the status of a rule as a member of the system
depends on its satisfying certain criteria provided by the rule of recognition. No such
question can arise as to the validity of the very rule of recognition which provides the
criteria; it can neither be valid nor invalid but is simply accepted [by the officials of the
system] as appropriate for use in this way”

SEPARABILITY OF THESES

Having enriched the tradition of legal positivism with an elaborate alternative to the
command theory of law, Hart turned his attention to the debates between legal positivists and
their natural-law opponents. He recognized the diversity of the points of contention that have
pitted the devotees of positivism against the devotees of natural-law theories. 15

Hart knew that there is no single such thesis. He countered the notion of a single defining
thesis, indeed, in the opening sentence of his chapter on positivism: “There are many
different types of relation between law and morals and there is nothing which can be
profitably singled out for study as the relation between them”

15
Tamanaha, Brian Z. "The contemporary relevance of legal positivism." Australasian Journal of Legal
Philosophy 32 (2007): 1-38.