“Hart’s account of the fundamental aspects of a legal system is flawed, and over-reliant

on a specious conception of the relationship between social and legal rules.”

Discuss this statement.

1. Introduction

In order to understand Hart’s account of a legal system, attention must be turned

to his book the Concept of Law.1 Professor Hart starts out his book by stating
that he aims to further the understanding of law, coercion, and morality as
different but related social phenomena. He then states that there are three
recurrent issues that must be addressed: How does Law differ from and how is it
related to orders backed by threats? How does legal obligation differ from, and how is it
related to, moral obligation? What are rules and to what extent is law and affair of
rules?2

Hart’s theory is an attempt in linguistic perfection. Hart initially criticises John

Austin’s imperative theory. Hart himself states that much of his book is
concerned with the deficiencies of a simple model of a legal system, constructed along
the lines of Austin’s imperative theory.

2. A starting point: Critique of John Austin

In order to understand Hart’s reliance on the relationship between social and

legal rules, one must start with his analysis of Austin’s theory. According to
H.L.A Hart in social life one person may express a wish that another person
should do or abstain from doing something with the intention that the person
addressed should conform to the wish expressed. This reflects an imperative
mood.3

Hart draws analogy of Austin’s theory with a gunman case where the gunman
threatens the bank clerk that he will shoot unless the bank clerk hands over the
money. Hart however clarifies that in such a scenario the gunman ordered the
bank clerk but did not give an order because he did not have any legal authority
over the bank clerk. Hart associates the word command as the concept identified
by Austin and states that to command is characteristically to exercise authority
over men, not power to inflict harm. Hart states that law requires respect not
fear.

1 Hart, H. The Concept of Law; 2nd Edition; Oxford: Clarendon Press

2 Hart, H. The Concept of Law; 2nd Edition; Oxford: Clarendon Press, Chapter 1, p. 13
3 Hart, H. The Concept of Law; 2nd Edition; Oxford: Clarendon Press, Chapter 2

1
More important is the point that it need not be the case, where a command is
given, that there should be a latent threat of harm in the event of disobedience.
To command is characteristically to exercise authority over men, not power to
inflict harm though it may be combined with threats of harm; a command is
primarily an appeal not to fear but to respect authority.

Hart emphasises on the generality of the law stating that orders cannot always be
made individually. Such particularised forms of control are both exceptional and
ancillary.

1) Laws are general as they dictate a general type of conduct to the

general class of persons. The first element that is required to be added
to the gunman situation is the concept of generality.
2) Laws are laws even if people do not know about it. Laws need not be
addressed.4
3) Law should have the character of standing orders to provide persistent
application.
4) Fourthly there should be ‘a general habit of obedience’. Mere temporary
ascendancy of one person over another is naturally thought of here as
a polar opposite of law.

Hart firstly compares the gunman situation to penal law identifying it closer to
penal law than any other type of law. Then he goes on to say even if laws were
all based on the features of penal statute, something more must still be added to
the gunman situation.

Hart states that the legal system of a modern state is characterized by a certain
kind of supremacy within its territory and independence from other legal
systems, which is not present in the simple model.5

3. The Variety of Laws6

According to Hart not all laws are duties imposing. He identifies power
conferring rules as part of the legal system even without any sanctions in the
strict sense to back them. He states that these power conferring rules may also be
regarding as duty creating as they allow us to enter in various obligations and

4 Hart said that formal justice consisted in the idea that one should treat like cases alike and that this idea was compatible with great
iniquity citing the South African apartheid system as an example.
5 Penner. J: Jurisprudence and Legal Theory: Commentary and Materials, 2002 Edition, Butterworths
6 Hart, H. The Concept of Law; 2nd Edition; Oxford: Clarendon Press, Chapter 3

2
thereby create duties. These power conferring rules allow us manage our social
relations which are requisite in the legal world. Hart states that without adding
these power conferring rules to the simple model of law the transition from the
pre-legal world to the legal world is not possible. These power conferring rules
are of various kinds including:

1) Rules relating to capacity such as power restricting rules of courts;

2) The manner and form of exercise of legislative powers;
3) Rules delimiting powers; and
4) Power to make wills and enter into contracts

There is a radical difference between rules conferring and defining the manner of
exercise of legislative powers and rules of criminal law, which at best resemble
orders backed by threats.7

Austin had stated that all rules can only be regarded as rules strictly if they had a
sanction attached to them. This aspect has been criticised by Hart, who states that
in the case of power conferring rules, the only visible sanction is nullity.8 This is
deemed by Hart as inadequate and he rejects Austin’s notion that power
conferring rules are fragments of laws.9

Kelsen had stated that law is the primary norm, which stipulates the sanction.
Thus for Kelsen law consists of legal rules directed towards officials. 10 Kelsen
and Austin were both criticised by Hart for keeping sanction central to their
theory.

Hart then states that “the principal functions of the law as a means of social control are
not to be seen in private litigation or prosecutions, which represent vital but still
ancillary provisions for the failures of the system. It is to be seen in the diverse ways in
which the law is used to control, to guide, and to plan life out of court.”

Comparing a society to a game of football and cricket, Professor Hart implies

that the natural protest to Austin’s theory is that the uniformity imposed on the
power conferring rules and duty imposing rules alike, conceals the way in which
the rules operate and the manner in which the players use them in guiding

7 Hart, H. The Concept of Law; 2nd Edition; Oxford: Clarendon Press, Chapter 3
8 Hart cites the example of Section 9 of Wills Act stating that of the formal requirements are not fulfilled then the Will instrument will
be null and void, thus the sanction of nullity.
9 For Austin rules conferring private powers must, if they are to be understood, be looked at from the point of view of those who
exercise them.
10 See further: Harris; J.W; (1997). Legal Philosophies; Butterworths

3
purposive activities and so obscures their function in the co-operative, though
competitive, social enterprise, which is the game.

Hart then addresses the issue of legislation binding the law maker. Hart rejects
his own interpretation of Austin the Sovereign who does not habitually obey
anyone can not thus be bound by the laws he makes. He states that legislation, as
distinct from just ordering others to do things under threats, may perfectly well
have such a self-binding force. Roger Cotterrell11 has defended Austin stating
that Austin intended that a legislator should be distinguished from his official
and private capacity. Acting in the first capacity he then makes law, which
imposes obligations on other persons, including himself in his private capacity.
This concept has been regarded as inept by Hart.

He then suggests that the idea of a promise can better replace the concept of
coercive orders. There is a difference between a promise and law that he
recognises. Promise has a bilateral nature and has a promisor and promisee.
However Hart states that like the giver of a promise, a law maker exercises
powers conferred by rules; very often he may, as the promisor must, fall within their
ambit.

Hart then questions Austin theory on the point where Austin states that
customary law is not law until applied by the Courts in cases. Austin stated that
judges have tacit command of the Sovereign.12 However that would mean that
until Courts apply customary rules in particular cases such rules are mere
customs and not legal rules. Hart criticised this by stating that it is not
necessarily the case that until they are used in litigation customary rules have no
status of law like statutes and states that if a custom owes its legal status to the
sovereign’s tacit order, how tacit order is implied.13

4. Sovereign and Subject14

Hart interprets Austin’s Sovereign as a person or body of persons whose orders

the great majority of the society habitually obey and who does not habitually
obey any other person or persons. There is thus a relationship between subjects
rendering habitual obedience and a sovereign who renders habitual obedience to
no one.

11 Cotterrell. R: The Politics of Jurisprudence: A Critical Introduction to Legal Philosophy; LexisNexis Butterworths / Oxford
University Press (London); 2003; See chapter 2 Sovereign and subject - Bentham and Austin;
12 Riddal J.G. (1999). Jurisprudence; Butterworths
13 Hart recognises that custom is a source of law subordinate to statute and can be overturned by the sovereign.
14 Hart, H. The Concept of Law; 2nd Edition; Oxford: Clarendon Press, Chapter 4

4
According to Hart, obedience comes from respect and not by merely compliance
with orders backed by threats. Using a hypothetical example of a ruler named
Rex I, Hart states that if people are under a general habit of obedience to Rex I
and he is succeeded by Rex II, Rex II is not sovereign until such a general habit of
obedience is established. Only after we know that his orders have been obeyed
for some time, shall we able to say that a habit of obedience has been established.

However Hart states that we require rules of succession making Rex II successor
and thereafter his laws will be valid. There are two apparent problems that arise
which require such rules of succession. Firstly mere habits of obedience to orders
given by one legislator cannot confer on the new legislator any right to succeed
the old and give orders in his place. Secondly habitual obedience to the old
lawgiver cannot itself mean that the new legislator’s orders will be obeyed.

At this juncture Hart states that a distinction between social rules and habits has
to be drawn. He states that general practice makes them both similar but though
there is similarity, there are three salient differences.

1) Habit is adequate if behaviour converges and deviation is not

criticised. However there is criticism if a rule is deviated from.
2) Secondly criticism is justified and legitimate in social rules and
generally acceptable.
3) Habits just have an external aspect. Social rules also have an internal
aspect. Some people at least must look upon the behaviour in question
as a general standard to be followed by the group as a whole.

Hart then states that laws continue due to general acceptance. Rex II derives
legitimacy from this continuity. Habits are not normative. They cannot confer
rights or authority to anyone. Thus habitual obedience to one person does not
mean that obedience will be afforded to the successor. There must be habitual
obedience to rules rather than a person or a body of persons.15

Hart then states that it is important to understand why legal rules continue to
exist over a period of time. This persistence of laws is reflected through an
example of the application of the Witchcraft Act 1735 in a case in 1944.16 This is
reflective of the statement made by Hobbes that ‘the legislator is he, not by

15 In Austin’s defence, he used the term Sovereign to mean the office/institution of the Sovereign rather than a person or a body of
persons.
16 R v Duncan [1944] I KB 713

5
whose authority the laws were first made, but by whose authority they now
continue to be law’.17

Hart then observes that laws are laws even before being applied by courts and
because they are enacted by persons whose enactments are now authoritative
under presently accepted rules.18

Austin had stated that there are no legal limits on his sovereign’s law creating
power. Thus the Sovereign according to Austin is illimitable and secondly there
are no legal limits on it. The obvious advantages of this are that this allows laws
to be discerned from other rules and shows where authority lies.

However Hart states that an unlimited sovereign is not necessary for the
existence of law. A written constitution may limit the form and substance thus
limiting the sovereign’s powers and the Courts may declare anything outside its
scope void. There may be thus legal disabilities on the sovereign rather than legal
duties.19 These restrictions may come with powers and provide a criterion to
courts for assimilating whether laws are valid or void. Such limitations on
powers are clearly defined in federal constitutions in countries such as USA and
Australia.

Austin viewed the electors as the sovereign not the elected the representatives as
the sovereign. In his defence Roger Cotterrell said that Austin meant that the
electorate was the ultimate political sovereign and not the legal Sovereign.

Hart however ignores this possibility and criticizes the view that the electorate is
the ultimate sovereign pointing that the electorate cannot be sovereign. He
maintains that Austin’s theory. The problem according to him is that how can the
electorate be habitually obedient to itself.

The society has to be divided into two segments: the sovereign, free from legal
limitations, who gives orders and the subjects who habitually obey. The
distinction between personal and legal capacity is necessary therefore.

However Hart clearly rejects Austin’s concept of a sovereign. Hart states that the
simple idea of orders, habits and obedience cannot be adequate for the analysis

17 Cotterrell. R: The Politics of Jurisprudence: A Critical Introduction to Legal Philosophy; LexisNexis Butterworths / Oxford
University Press (London); 2003; See chapter 2 Sovereign and subject - Bentham and Austin;
18 This view has been rejected by legal realists who state that law is only that which is applied by the Courts and no law exists prior to
application. See Further: Freeman, M: Lloyd’s Introduction to Jurisprudence, 7th Edition, Sweet & Maxwell
19 Limits here imply not the presence of duty but the absence of legal power.

6
of law. Lastly Hart adds that the concept of electoral sovereignty can only exist in
a democracy. He questions how this will apply in monarchy such as the case of
the hypothetical Rex I.

5. Internal aspect of Law

This bring us to the one of the most essential element in Hart’s outlook at legal
rules and relationship between legal rules and social rules and how social habits
are distinct from legal rules as they lack an internal aspect.

It refers to the acceptance of the primary rules by the citizens. The validity of
rules in a society depends on the internal point of view of the citizens in that
society/community, which describes a critical reflective attitude enabling the
citizens to feel a sense of obligation to obey such laws. Thus in a pre-legal society
there will be rules of law which are accepted by the majority as specifying
standards of behaviour.

Hart’s main contribution to legal philosophy20 is primary and secondary rules21

and the distinction between the internal and external aspects of law. He does it
by differentiating between acting habitually and acting in accordance with a rule.
For example people in a community bathe on a Saturday night only. Suppose
that in addition to this regular behaviour there exists a rule in this community
requiring that every person bathe on Saturday night. The habit and rule
situations differ in two important respects.

Firstly if there is a social rule, there will be the concept of ‘deviation’ from the
standard. Secondly the deviation will be good reason for criticising the person.
The reason is that if a rule exists in a certain society, some people ‘look upon the
behaviour in question as a general standard to be followed by the group as a whole’. They
have views about what is proper and what is improper. This ‘critical reflective
attitude’ that individuals assume towards certain behaviour is the internal aspects
of rule.

The external aspect is the regular conduct, something that is observable to those
who do not know of the existence of the rules. The internal point of view is that
of a member of a group who accepts and uses rules as guides to conduct and

20 Hart, H. The Concept of Law; 2nd Edition; Oxford: Clarendon Press, Chapter 5
21 This is also referred to as the existence thesis, the existence theory, the theory of rules, and the imperative theory.

7
criticism.22 A typical statement used to express acceptance would be ‘we bathe
here every Saturday night’.

The external point of view is that of an observer who does not accept the rules.
He may be taken as a member of the group who rejects the rules or the one who
is outside the group and simply record their behaviour. The typical form of an
external statement would be ‘they bathe on Saturday night’.23

Social rules exist provided that some individuals accept the rules but how often
and for how long they must do so is not definite. Legal rules exist provided
certain officials of the system accept them. It is not necessary for the mass of the
people to do so. Thus the existence of legal system implies that the primary rules
are generally obeyed by the members of the society and the secondary rules
accepted by the officials of the system.

Critics state that Hart’s theory is wrongly describing the internal view of an
observer who is external and not an internal observer.24

6. Rule of recognition and legal validity25

Hart states that in a legal system there are Primary and Secondary rules. Primary
rules create duties and the three secondary rules; Rule of Recognition, Rules of
Change and Rules of Adjudication ensure that the system is not static, uncertain
and ineffective.

At the outset of the concept of law, HLA Hart asks a question what is law? The
narrower question is what is the law. It is narrower because it leads to the more
precise signification of the issue on which knowledge of the law is required, and
a specification of the legal system to which the question relates. If someone asks
for example what is the law concerning contracts in England and he is told that it
is union of primary and secondary rules, he will consider it as totally irrelevant.

Hart’s answer is that the law on a particular topic in a particular legal system is
that which it is according to the rule of recognition in that legal system. If
someone asks the question whether there is only one rule of recognition or
whether there are several, Hart’s reply was that there is no importance in this
issue.
22 In order to understand legal rules corresponding to the internal aspects or internal points of view and internal statements is required.
23 Hart, H. The Concept of Law; 2nd Edition; Oxford: Clarendon Press, Chapter 5
24 See Further: Guest; S. (1996); Positivism Today; Dartmouth Publishing Company
25 Hart, H. The Concept of Law; 2nd Edition; Oxford: Clarendon Press, Chapter 6

8
We can loosely refer to several rules such as in the UK what Crown in Parliament
enacts is law; what the common law Courts decide is law and so on or we can
simply bundle them together in one more complicated rule such as ‘what crown in
parliament enacts and what the common law courts decide …….is law.’

He distinguishes between what he calls a supreme criterion and ultimate rule of

recognition. Supreme criterion is part of the rule of recognition and is the part,
which dominates over the rest. So the supreme criterion in UK legal system is
parliamentary enactment (statute) and, if the common law or custom conflicts
with parliamentary enactment, that enactment prevails.

The existence of the rule of recognition is a matter of fact to be determined by

looking to the actual practice of the officials of the system. This does not mean
that the rule of recognition is explicitly declared saying that ‘in the day to day life
of legal system its rule of recognition is very seldom expressly formulated as a rule.’ And
that ‘for the most part of the rule of recognition is not stated but its existence is shown in
the way in which particular rules are identified.’26

According to Hart, in most cases, provision is made for possible conflict by

ranking these criteria in an order of relative subordination and primacy. It is in
this way that in our, system ‘common law’ is subordinate to ‘statute’. In our own
system, custom and precedent are subordinate to legislation since customary and
common-law rules may be deprived of their status as law by statute. Status of
law however derived from rule of recognition not from tacit command.

Hart states that an external observer does not know about rule of recognition. A
legal rule is valid if it satisfies the rule of recognition. This is an internal
statement of law. Although efficacy not usually required for validity of a rule,
total disregard will make a rule invalid. He states that the secondary rule of
recognition is the ultimate rule. Other rules are of relative subordination and
primacy makes the rule of recognition supreme.

Legal rules prevail even if they clash with other rules if they are identified as
valid by the supreme criterion of rule of recognition. The rule of recognition is
also the ultimate rule validating other rules.27

26 Hart, H. The Concept of Law; 2nd Edition; Oxford: Clarendon Press, Chapter 6
27 Rule of recognition is ultimate in the sense that we can trace back validity of a bye-law to an Act of Parliament but here, says Hart,
‘we are brought to a stop in inquiries concerning validity.’

9
When a rule is recognised by the rule of recognition it is presupposed that the
rule of recognition is one that is actually accepted and employed and that the
rule is recognised by the rule of recognition to be a rule. Its existence is a matter
of fact and law. Hart observes that as long as the laws, which are valid by the
system’s test of validity, are obeyed by the bulk of the population, this is all the
evidence we need in order to establish that a given legal system exists. It must
also be supplemented by description of secondary rules to officials. There is
however no requirement for legislators and judges to look at laws from an
internal point of view.28

There are only two minimum conditions necessary and sufficient for the
existence of a legal system. Firstly rules of behaviour valid according to the
system’s ultimate criteria must be generally obeyed.29 Secondly officials accept
rules of recognition, change and adjudication as common public standards.
Unlike Kelsen30, Hart does not make efficacy of legal rules as a pre-requisite for
their validity.

7. The Minimum content of Law

In addition to identifying that the Rule of recognition only recognises legal rules
and not social rules of other kinds, Hart also separates legal rules from other
social rules including moral values. As Hart identifies in his book positivist do
not base the validity of legal rules on their content.31 ‘The existence of law is one
thing, its merit and demerit another’.32 ‘The law of a state is not an ideal but something
which actually exist… it is not that which ought to be but that which is.’33 ‘Legal Norms
may have any kind of content’.34 Positivists do not generally test the validity of law
on their content. For most positivist morality is not a concern of law and should
be discerned from law.

Unlike natural lawyers, positivists do not generally test the validity of law on
their content. Hart states that Law is linked to morality in some respects and
certain truisms necessitate a role for morality in law. 35 There is a natural
necessity. Law may have any content of morality but it must conform to the

28 See Further: Green, Leslie (1996). “The Concept of Law Revisited,” 94 Michigan Law Review 1687.
29 This is not the semantic strength of the theory.
30 See Further: Harris; J.W; (1997). Legal Philosophies; Butterworths
31 Hart, H. The Concept of Law, Chapter IX, ‘Laws and Morals’, p. 207
32 Austin, The Providence of Jurisprudence Defined, Lecture V. pp. 184-185
33 Gray, The Nature and Sources of the Law, s. 213
34 Kelsen, General Theory of Law and State, p. 113
35 Hart, H. The Concept of Law, Chapter IX, ‘Laws and Morals’, pp. 185-212

10
minimum content of morality to preserve society from the five truisms. At first
sight this passage would seem to indicate that Hart is a natural lawyer, however
he is a positivist.

Hart36 explains the positivist approach saying that law is law and content does
not matter. Law is what is, not what ought to be. He refers to theories of other
positivist Austin and Bentham for whom men should separate law from morals so
they follow them rather than declare them invalid. Hart however does not
present the classic positivist doctrine in this regard. He says that morally offensive
rules should be excluded from the meaning of law and that men should be trained
and educated to make a strong resistance against what he deems evil laws.
However Hart is a positivist and explains and reiterates that the validity of law is
no manner dependant upon its content.37

He states that with survival as an aim, laws and morals should reflect the five
truisms that are present in a society. These are human vulnerability38, approximate
equality of human beings,39 limited altruism,40 limited resources41, and limited
understanding and strength of will.42 In essence therefore Law may have any
content of morality. But it must conform to a minimum content of natural law to
preserve society from the five truisms.43

36 Hart, H. The Concept of Law, Chapter IX, ‘Laws and Morals’, pp. 185-212
37 Hart, H. The Concept of Law, Chapter IX, ‘Laws and Morals’, pp. 185-212
38 Human vulnerability according to him means that Laws and morals often require forbearance rather than some positive act. This is
essentially evident for achieving survival and protection of life as an aim. He states that men are vulnerable to physical violence and
that “If men were to lose their vulnerability to each other there would vanish one obvious reason for the most characteristic provision
of law and morals: Thou shalt not kill.” Hart, H. The Concept of Law, Chapter IX, ‘Laws and Morals’, pp. 185-212
39 Approximate equality in society mean that human beings are relatively equal to each other and that mutual forbearance is required
due to relatively equal values and qualities. Human beings are directly or indirectly dependent upon each other and therefore even if
some may be superior they are relatively equal.
40 Limited Altruism of human beings demands that a system of mutual forbearance to regulate social behaviour as humans have
limited capacity to sacrifice and indulge in human good. According to Hart, “as things are, human altruism is limited in range and
intermittent, and the tendencies to aggression are frequent enough to be fatal to social life if not controlled.”
41 Limited Resources in this world mean that Rights and obligations created have to be protected by legal rules. Due to limited
resources there will always be competing interests. Therefore not just for an economically efficient system but for the basic aim of
survival, not only static but also dynamic rules are required to enable individuals to create obligations and to vary their incidence and
to regulate property ownership.
42 There will always be malefactors who will not obey legal rules. Sanctions are therefore required not as normal motive for
obedience but as a guarantee that those who would voluntarily obey shall not be sacrificed to those who would not.
43 For an overview of Hart’s theory see Simmonds, N.E. (1986); Central Issues in Jurisprudence: Justice, Law and Rights; Sweet &
Maxwell; Chapter 5

11
Hart then proceeds to an important element is his theory: the link between legal
validity and moral value.44 Hart states that Laws follow social morality and that
Laws may be used to punish malefactors or to secure the position of the master
group. Because legal powers may be abused it is necessary that they exhibit a
minimum content of natural law or more. There is thus a certain overlap between
law and morality. This overlap is evident in various issues. Hart discusses six
such issues, where law and morality may be regarded as intrinsic issues: the
relationship between Power and Authority45, the influence of law on morality46,
Interpretation of law47, the criticism of law48, principles of legality and justice49, and
Legal validity and resistance to law.50

Morality may also demand that the state should punish only those in doing evil,
if what they did was what the state at the time forbid. This is concept of nulla
poena sine lege. Thus Hart favours retrospective legislation in these situations.51

It is worthy to note however that Hart also refutes the wider positivist
approach.52 According to him though law is law if it is made through a valid
process of law making in valid legal system, which has the union of primary and
secondary rules at its base, and such laws are valid according to the rule of
recognition, he discerns the question of validity from the question of an
obligation to obey on individuals and officials.53

44 See further Harris, J.W. (1979) Law and Legal Science: An Inquiry into the Concepts Legal Rule and Legal System. Oxford:
Clarendon Press.
45 There should be authority before someone exercises power. In essence to the exercise of power is dependent upon people
recognizing the authority of the body/person exercising its powers.
46 This is evident in society in either statutory or judicial means. Law and legal liability and rights may be restricted according to
prevailing view of moral responsibility.
47 There is a Choice between moral values where absurd text / open texture of statutes. Judges indulge in moral policy considerations
often. This is however debatable as judicial law making has often been blind to social values, automatic, or inadequately reasoned.
48 Law has been criticised on moral grounds. The obvious difficulty is how does one ascertain moral standards.
49 What law is just? There are questions as to whether to what extent must standards of justice and legality must be met when then are
extra legal or moral principles. According to Hart it is only the minimum content required for conforming at certain points to morality
and justice. See Further Hart, H.L.A. (1955) “Are There Any Natural Rights?” 64 Philosophical Review, pp. 175-91.
50 This is the most important point in the relevant discussion as this passage identifies Hart’s view on obligations of individuals to
follow law.
51 This has been criticised by Ronald Dworkin. See Further Guest; S. (1996); Positivism Today; Dartmouth Publishing Company;
Chapter 1 & 3
52 See Further for the approach taken by Joseph Raz: Raz, J (1979). The Authority of Law; Oxford: Clarendon Press.
53 Hart, H.L.A (1958). “Positivism and the Separation of Law and Morals,” 71 Harvard Law Review 593 repr. in his Essays in
Jurisprudence and Philosophy; 1983 Edition; Oxford: Clarendon Press.

12
According to Hart people in a society need to be able to resist evil laws. 54 The
question is two fold. Firstly if the laws in question are so unjust and iniquitous
that they may be deemed manifestly against the concept of morality and the
minimum content of natural law then people may need to make a choice
between two evils: the greater evil of following iniquitous laws and the lesser
evil of refusing to follow what is in the first place valid law.55

Professor Lon Fuller has criticised Hart and observes that law must be possess
what he calls the inner morality of law. This is essentially that the law must be
procedurally moral. In addition to this he states that legal rules must not be
devoid of morality and must be substantively rational. He states that if rules do
not have inner morality they are not laws at all.56

8. Legal rules and principles

Arising out of the discussion earlier it also significant that Hart draws a
distinction between legal rules and non-legal rules and maintains that judges do
make laws at times. Dworkin is critical of Hart’s work57 and in essence has
disagreed with Hart in reference to the concept of law as what the judges say. He
advocates the best theory of what our existing legal practices justify.58

Dworkin’s analysis of Hard Cases in this regard is extremely useful. He states

that law essentially comprises of legal rules and legal principles. Then he
identifies that there will be instances where judges will be faced with a case
where legal rules may not sufficiently deal with the issue at hand. In such cases
like McLaughlin v O’Brian59 a judge will face a situation where an answer will not
be present in the legal rules. Cases like these will reflect that Law does not merely
consist of legal rules but also includes principles.60

It is here that Dworkin identifies that in hard cases there will be right answer; it
is only incumbent upon the judge to find the answer and apply it to the case in

54 It is in no sense a necessary truth that law reproduce or satisfy certain demands of morality, though they have in fact done so. Law
should be objective and certain.
55 Hart, H. The Concept of Law, Chapter IX, ‘Laws and Morals’, p. 196
56 Fuller. L. L. (1958), Fidelity to Law, Harvard Law Review, 1958, Volume 71, p. 645
57 See Hart, H. The Concept of Law; 2nd Edition; Oxford: Clarendon Press & Hart, H (1983). Essays in Jurisprudence and
Philosophy; Oxford, Clarendon Press
58 Many jurists and students alike have found that Dworkin’s legal philosophy is imprecise and difficult to grasp but this is mainly
due to the fact that he has presented an analysis that does not fall within the traditional divide of natural law and positivism.
59 (1983) 1 AC 410
60 Simmonds, N.E. (1986); Central Issues in Jurisprudence: Justice, Law and Rights; Sweet & Maxwell

13
hand. If the answer cannot be found in legal rules then the judge must endeavour
to find the answer in legal rules.61

Dworkin’s criticism in not only aimed at HLA Hart. It is aimed at positivism in

general and Hart in particular.62 Dworkin criticises Hart for failing to add legal
principles to his theory. It is imperative for Dworkin that legal rules must be
supplemented by legal principles and that without legal principles in a society a
legal system is incomplete. However it has been observed that Dworkin may
only be making useful addition to Hart’s theory and in practice has the same
legal philosophy in mind.

This line of thinking is described as “Rule Scepticism”. Hart sought to dismiss this
attack on his “Rules” framework by conceding that while the “open texture” of
language allowed some choices to be made in the interpretation of Rules, this
was, in the overall scheme of things, only minimal, and a marginal feature of
what is essentially a “Rules-based” system.

According to Dworkin cases like McLaughlin v O’Brian and Spartan Steel Case63 fall
within the open texture type cases identified by Hart. He further elaborates that
legal principles infringe Hart’s theory of positivism by explaining how legal
principles are identified. He claims that legal principles cannot be identified by
anything resembling Hart’s rule of recognition.64

Dworkin accepts a distinction between legal principles and non-legal principles,

which may be merely based on moral considerations. Some criterion is therefore
required to distinguish between the two. Therefore Dworkin’s theory itself
depends upon some notion of a basic rule of recognition. Dworkin says that
Hart’s theory – rule of recognition – identifies law by the pedigree not by
content. This is essentially where he differs from positivism. Legal principles are

61 Dworkin identifies that legal rules differ from legal principles in a number of related ways. Rules apply in all or nothing fashion; a
legal principle may give reason but not a conclusive reason. Valid Rules cannot conflict, if they conflict one will prevail and the other
will stand annulled/repealed; legal principles on the other hand, can conflict and still be binding legal principles. Legal principles
conflict and must be weighed against each other; principles must be balanced against each other.
62 Raz's theory challenges both Dworkin's anti-positivist legal theory. See Raz, Joseph, ‘Legal Principles and the Limits of Law’ in
Cohen (ed.), Ronald Dworkin and Contemporary Jurisprudence, (Duckworth 1984), 73.
63 Spartan Steel & Alloys Ltd. v Martin & Co. [1973] 1 QB 27. See Dworkin, Ronald (1978) Taking Rights Seriously; 2005 Reprint;
Universal Law Publishing; p. 83
64 A legal principle may already be a legal principle although no court has ever formulated it or laid it down as a principle. Only
engaging in a moral and political discussion, of what principles should be invoked to justify the black letter rules of law, identifies
principles.

14
not identified by their pedigree. They need not be formulated in a statute or a
judicial decision.65

9. Rules and discretion of judges

Hart defined legal development as continuation of a chain novel while judges are
novelists who undertake constructive interpretation of legal data. According to
him, precedence is a long story, which must be interpreted and then continued
by a judge using his own judgment.66

If Dworkin’s theory is followed than the answer to the above question, do judges
make law is certainly no. According to his theory, “judges must make the best
sense”. A hypothetical model judge Hercules would simply apply the legal rules
and legal principles and find the answer.67

There are very strong arguments for both the theories. Dworkin’s supporters
state that if judges are to get involved in judicial law making they are
endangering the principle of certainty, which is central to the English Legal
System. Also they will be overstepping their boundaries and diminishing the
separation of powers doctrine by taking over the role of the legislature. Hart, on
the other hand, is in favour of constructive development of the law in tune with
the changing social circumstances.68

It was this inability of Dworkin to defend this “Rules-based” system in what he

describes as “hard cases”69, which hastened the return of Natural Law70 after the
Second World War. But some of that criticism may well have been unfounded,
or at least exaggerated. Essentially, Hart conceded that in “hard cases”, judges
would be called upon to make law. This does not in itself invalidate the Positivist

65 In summary Dworkin says that a principle is a legal principle if it forms a part of the soundest theory of law that could be offered as
a justification for the established legal rules and institutions. There is no need to look at empirical facts of official behaviour or a so-
called rule of recognition through which principles are to be identified.
66 Riddal J.G. (1999). Jurisprudence; Butterworths; chapter 10
67 Hart started a debate, in favour of the creative role of the judges. Hart believed that judges do take part in making the law as law is
not solely comprised of rules, as stated by Dworkin, and there are also certain other principles which form part of law. Hart realizes
that there are certain standards and policies which act as guidelines in cases which help a judge play and active role in judicial law
making.
68 This is only possible if the judiciary also plays an active role rather than a mere declaratory role. Parliament does not have the time
to keep on passing appropriate legislation according to the changing times and if the judges do not play a creative role in law making
when required, the legal system will become a stagnant with many gaps to be filled.
69 Ones in which there is no obvious answer
70 As the “New Wave” post-1945 inspirational springboard for the regulation of society.

15
standpoint if one includes judicial precedent among the sources of valid law
“recognised” by the society in which it is promulgated.

As an interpretive theory Hart disagrees with Dworkin that the point/purpose of

law is to justify state power. Hart justifies legal positivism on the grounds that it
made clear that the certification of legal validity should not finish the question of
obedience. Hart states that the better way of pursuing the Nazi informers is by
making retrospective law. Hart says that a choice has to be made between the
two evils. Gustav Radburch71 had stated that the law was simply invalid as it
was not moral.

Dworkin claim decisions such as these as victories for wise judges “discovering”
pre-existing immemorial principles of undoubted moral value, thereby
illustrating the continuing power of “Natural Law”.72 Joseph Raz73 states that
Hart would simply argue that they are one aspect of a “Rules-based” system in
which some of the rules come to us via judicial precedent.74

For Hart uncertainty exists in hard cases where the judge must exercise his
discretion on extra legal grounds. The theory of Dworkin stresses on the integrity
of law, applying law to fit and limiting judicial discretion. His account of legal
reasoning shows how decision making, beyond the scope of black letter rules,
can nevertheless be constrained by law.75

Hart and Kelsen76 state that law has gaps and there will be many situations when
a judge will be faced with a hard case. There will be no existing rule and
therefore no right answer. Even though Austin and Bentham77 were primarily
against judicial law making, they have accepted that judges do make law at least
intrinsically.

71 Curzon, L.B. (1997); The conversion of Gustav Radburch; Cavendish Publishing Limited; 56 Student Law Review; 2001 Volume
34; p. 56-58
72 See Further: Raz, Joseph, ‘Legal Principles and the Limits of Law’ in Cohen (ed.), Ronald Dworkin and Contemporary
Jurisprudence, (Duckworth 1984), 73.
73 See Further: Raz, J (1979). The Authority of Law; Oxford: Clarendon Press.
74 Their ultimate origin was never something, which the Positivists presumed to make comment on. Positivism, on the other hand,
maintains that such a dependence of legal validity on moral considerations is a contingent matter; it does not derive from the nature of
law or of legal reasoning as such.
75 See further Soper, Philip (1977) “Legal Theory and the Obligation of a Judge: The Hart/Dworkin Dispute” 75 Michigan Law
Review 473.
76 Penner. J: Jurisprudence and Legal Theory: Commentary and Materials, 2002 Edition, Butterworths
77 Penner. J: Jurisprudence and Legal Theory: Commentary and Materials, 2002 Edition, Butterworths

16
10. Criticism of Professor H.L.A Hart

Hart has been criticised by many leading writers with Roger Cotterrell78, Ronald
Dworkin, Lon Fuller79, and Stephen Guest amongst them. Stephen Guest
criticizes Hart for stating that his work is an essay in descriptive sociology.
Plainly we cannot tackle adequately Harts concept of law. Hart first says that he
concerns himself with linguistic practices and then he himself parts with such
practices when discussing the relationship between law and morality. In trying
to describe such rules as social rules and nothing more, Hart draws substantial
criticism. As Hart involved himself in moral and social rules, his theory can not
be termed descriptive, rather it is evaluative.

Hart did later accept that his linguistic philosophy has a general defect. Whereas
Hart had initially stated that Dworkin’s belief is mistaken, in the postscript to his
book80 he says his theory is different from Dworkin.

Guest81 compares the internal point of view in law with that of a mathematician
and states that the idea is not very relevant. Law is arguable and cannot be
described. Only settled law can be defined appropriately according to Guest. He
proceeds further and states that there is a problem with the nature of legal
positivism as stated by Hart. Guest criticizes Hart by stating that Hart views
about the nature of law are not vague.

Hart uses linguistic practices in a manner we actually think about law. The
concept of soft positivism and role of concepts such morality, principles and
social rules is uncertain in Hart’s theory. Soft positivism is controversial and
uncertain and thus there is a question whether they can be rules of law.

Professor Dworkin say that how can law be law when rule of recognition makes
the law uncertain. Dworkin questions that how can reasonable expectations be
fulfilled and why do cases come before courts, if there is no certain right answer.
There is a direct attack also on the rule of adjudication. Dworkin says that soft
law cannot be law. This apparently renders Hart’s account of the fundamental
aspects of a legal system as flawed.

78 Cotterrell, R: The Politics of Jurisprudence: A Critical Introduction to Legal Philosophy; LexisNexis Butterworths / Oxford
University Press (London); (2nd Edition); 2003
79 Fuller. L. L. (1958), Fidelity to Law, Harvard Law Review, 1958, Volume 71, p. 645
80 Hart, H. The Concept of Law
81 Guest; S. (1996); Positivism Today; Dartmouth Publishing Company

17
In Hart’s defence however, Dworkin himself is regarded as illogical inconsistent
and parochial. Dworkin criticizes Hart because he feels that the rule of
recognition fails to recognise legal principles thus leaving a loophole in the legal
system, which cannot be complete otherwise.82

Hart thinks that Dworkin’s arguments that not all legal rules can be identified by
referring to social practice shows a serious misunderstanding of what the rule of
recognition was intended to be about.

Hart also thinks that Dworkin is wrong to suppose that there is a sharp
distinction between rules and principles. Hart thinks that in hard cases judges
exercise their judicial discretion by acting as judicial lawmakers and does not
think that it poses a great threat to democracy. Hart states that if executive can
make law through delegated powers then why not judiciary. Secondly such cases
can have retrospective effect.

Conclusion

Stephen Guest criticizes Hart by stating that he takes no account of insiders, his
social rules are defective, he has omitted legal principles and in his theory there
are gaps, his linguistic practices are erred and he presents nothing important
about the internal and external aspects upon which he based the relationship
between legal and social rules.83

The statement that “Hart’s account of the fundamental aspects of a legal system is
flawed, and over-reliant on a specious conception of the relationship between social and
legal rules” may have some validity. Hart has in defining important concepts
failed to clearly outline his case and his concept a legal system is erroneous in
that it seeks to minutely scrutinize various rules in a legal system. Yet the
contribution made by Professor Hart to jurisprudence is phenomenal and the fact
that leading writers have even criticised him reflects that his work was not
entirely unsound.

82 Raz, Joseph, ‘Legal Principles and the Limits of Law’ in Cohen (ed.), Ronald Dworkin and Contemporary Jurisprudence,
(Duckworth 1984), 73.
83 Stephen Guest: “Why the Law is Just”; Current Legal Problems 2000

18
 Bibliography

1) Freeman, M: Lloyd’s Introduction to Jurisprudence, 7th Edition, Sweet &

Maxwell
2) Penner. J: Jurisprudence and Legal Theory: Commentary and Materials,
2002 Edition, Butterworths
3) Hart, H. The Concept of Law; 2nd Edition; Oxford: Clarendon Press
4) Hart, H (1983). Essays in Jurisprudence and Philosophy; Oxford,
Clarendon Press
5) Raz, J (1979). The Authority of Law; Oxford: Clarendon Press.
6) Harris; J.W;(1997). Legal Philosophies; Butterworths
7) Riddal J.G. (1999). Jurisprudence; Butterworths
8) Davies, H. and David Holdcroft (1991); Jurisprudence: Texts and
Commentary; Butterworths
9) Paling, D. (1997); Sourcebook Jurisprudence: The Philosophy of Law; Old
Bailey Press
10) Doherty, M. (2001); Textbook Jurisprudence: The Philosophy of Law; Old
Bailey Press
11) Guest; S. (1996); Positivism Today; Dartmouth Publishing Company
12) Simmonds, N.E. (1986); Central Issues in Jurisprudence: Justice, Law and
Rights; Sweet & Maxwell
13) Dworkin, Ronald (1978) Taking Rights Seriously; Cambridge MA:
Harvard University Press.
14) Dworkin, Ronald (1978) Taking Rights Seriously; 2005 Reprint;
Universal Law Publishing
15) Dworkin, Ronald (1986). Law's Empire. Cambridge MA: Harvard
University Press.
16) Lyons, David (1982). “Moral Aspects of Legal Theory,” 7 Midwest Studies
in Philosophy 223
17) MacCormick, Neil (1985). “A Moralistic Case for A-moralistic Law,” 20
Valparaiso Law Review 1.
18) Soper, Philip (1977) “Legal Theory and the Obligation of a Judge: The
Hart/Dworkin Dispute” 75 Michigan Law Review 473.
19) Marmor, Andrei, Interpretation and Legal Theory, (Oxford, 1992).
20) Raz, Joseph, ‘Legal Principles and the Limits of Law’ in Cohen (ed.),
Ronald Dworkin and Contemporary Jurisprudence, (Duckworth 1984), 73.
21) Monk, R. and Raphael, F. The Great Philosophers, 2000 Edition, Phoenix
22) Bix, B. Jurisprudence: Theory and Context; 3rd Edition, Sweet and
Maxwell
23) Fuller, L. L. (1969) The Morality of Law; Revised edition; New Haven:
Yale University Press

19
24) Fuller. L. L. (1958), Fidelity to Law, Harvard Law Review, 1958, Volume
71, p. 645
25) Finnis, John (1996). “The Truth in Legal Positivism,” in The Autonomy of
Law, ed. Robert P. George. Oxford: Clarendon Press, pp. 195-214.
26) Fuller, Lon (1964). The Morality of Law, rev. ed. New Haven: Yale
University Press.
27) Green, Leslie (1996). “The Concept of Law Revisited,” 94 Michigan Law
Review 1687.
28) Harris, J.W.(1979) Law and Legal Science: An Inquiry into the Concepts
Legal Rule and Legal System. Oxford: Clarendon Press.
29) Hart, H.L.A.(1955) “Are There Any Natural Rights?” 64 Philosophical
Review, pp. 175-91.
30) Hart, H.L.A (1958). “Positivism and the Separation of Law and Morals,” 71
Harvard Law Review 593 repr. in his Essays in Jurisprudence and
Philosophy; 1983 Edition; Oxford: Clarendon Press.
31) Curzon, L.B. (1997); The sad tale of King Rex I; Cavendish Publishing
Limited; 144 Student Law Review; 1997 Yearbook; p. 144-146
32) Curzon, L.B. (1997); The conversion of Gustav Radburch; Cavendish
Publishing Limited; 56 Student Law Review; 2001 Volume 34; p. 56-58
33) Lyons, David (1982). “Moral Aspects of Legal Theory,” 7 Midwest Studies
in Philosophy 223
34) Raz, Joseph, ‘Legal Principles and the Limits of Law’ in Cohen (ed.),
Ronald Dworkin and Contemporary Jurisprudence, (Duckworth 1984), 73.
35) Cotterrell. R: The Politics of Jurisprudence: A Critical Introduction to Legal
Philosophy; LexisNexis Butterworths / Oxford University Press
(London); (2nd Edition); 2003

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