INDEX

Introduction

Literature Review

Objective of the Study

Statement of the Problem

Hart and Analytical Positivism

Hart’s Positivism

Hart as a Legal Positivist

Concept of Law

Primary Rules and Secondary Rules

Difference between Primary Rules and Secondary Rules

Rules of Recognition

Criticisms

Hart’s Key Contribution

Practical Relevancy

Conclusion

Bibliography
“Where there is law, human conduct makes some sense as non-optional and
obligatory.”

— Herbert Lionel Adolphus HART1

Introduction

Herbert Lionel Adolphus HART was a British philosopher who was a professor of
jurisprudence at the University of Oxford. His most important writing included causation in
the Law. His works have been highly influential in shaping contemporary legal thought,
particularly in the realm of legal positivism. H.L.A Hart put forward a very comprehensive
reformulation of analytical positivism in his book “concept of Law”. Thus the idea of
obligation is at the core of a rule. Hart criticised Austin’s idea of command. According to
Hart, Law consists of rules which are of broad application and non optional character, but
which at the same time amendable to formalisation, legislation and adjudication .A very
comprehensive reformulation of Analytical positivism has been done by Heart in his
“concept of Law” his theory one hand builds on and on the other hand makes important
modification in the theories of others.Analytical school main proponents were BENTHAM,
AUSTIN,SIR WILLIAM MARKBY, HOLLAND, SALMOND, H.L.A HART, KELSEN,
GRAY, SHELDON AMOS.2

Literature Review

1. Dr. S.N. DHYANI, Fundamentals of jurisprudence (The Indian Approach), Central Law
Agency Allahabad, Third Edition(2004), Reprint(2015) this book provides detailed
information about analytical positivism and H.L.A Hart.

2. V.D. Mahajan’s Jurisprudence and Legal Theories, 5th Edition, this book help me to
understand the other jurists criticisms and debates about the Analytical positivism and it
also provides more information about H.L.A Hart’s contribution.

Objective of the Study

1. To provide a comprehensive overview of Hart's analytical positivism and its key features.

2. To critically evaluate Hart's theory of law and its implications for our understanding of
legal authority and legitimacy.

3. To examine the concept of the rule of recognition and its role in Hart's theory of law.

4. To analyse the relationship between law and morality in Hart's analytical positivism.

1 https://www.slideshare.net/slideshow/analytical-positivism-and-h-l-a-hart-s-concept-of-
law/259664291 (last visited on 12th January, 2025 at 3:15 pm).

2S.N. Dhyani, fundamentals of jurisprudence, The Indian Approach, Central Law Agency,
30-D/1, Motilal Nehru Road, Allahabad, 3rd edition, 2005, pp.202-214.
5. To identify the strengths and limitations of Hart's analytical positivism and its relevance
to contemporary debates in legal philosophy.

Statement of the Problem

The influential work of H.L.A. Hart, particularly his seminal book "The Concept of
Law," has significantly shaped the analytical school. Hart’s other thesis, ideas, debates have
sparked intense and diverse interpretation.

1. What are the core features of Hart's analytical positivism, and how do they enrich our
understanding of law?

2. How does Hart's theory navigate the complex relationship between law and morality, and
what are the implications of this relationship?

Herbert Lionel Adolphus Hart and Analytical Positivism

H.L.A Hart criticised Austin’s idea of command. Prof. Hart points out that the term
“positivism” has many meanings.One meaning is that laws are commands. He is regarded as
leading contemporary representative of British positivism. His influential book, the Concept
of Law was published in 1961 and shows that is a linguistic, Philosopher, Barister and a
Jurists. Hart revived , reshaped, redefined and reformulated British Analytical Positivism
giving a more detailed picture of the notion of law by exploring the relationship between
law and society. Demolishing the Australian version of law and society.

Analytical school is called positive school because it is based on positivism.

Positivism comes from the word “positum” which means “as it is”. The term positivism first
time used by Auguste Comte who was a professor of sociology and known as father of
sociology. Positivism means laws are commands that is why this school is also called
imperative school of jurisprudence. Analysis of legal concepts can be done without
involving sociological, historical and moral aspects. Law laid down is different from what
the law that ought to be. The founder of analytical school of jurisprudence and English
jurisprudence was JOHN AUSTIN (1790-1859).

Hart’s Thesis

The following are the major thesis:

• The Concept of Law

• Law, Liberty & Morality

• The Morality of the Criminal Law

• Definition and Theory in Jurisprudence

• Punishment and Responsibility

 Hart agrees in his book that law is an obligation, law makes certain human conduct
non-optional or obligatory. But he disagrees with law being just a command asper Austin’s
Theory.3

Hart as Legal Positivist

Although Hart is unquestionable Positivist.Hart acknowledges the core of indisputable

truth in the doctrine of Natural Law . according to Hart Law is social phenomenon.it can
only understood and explained by reference to the actual social practices of a community.

Breaking with Austin and Bentham

Hart served positivism from both the utilitarianism (sec 9.1) and the command
theory of law championed by Austin and Bentham. In respect of the latter ,his rejection
rested on the view of a ‘gunman; a command backed by a sanction. This imperative version
of a legal order , moreover located the sovereign beyond the law ; this failed to account for
the requirement that legislature comply with basic law-making procedures.

At the core of Hart’s description of law and the legal system is law and the legal
system is the existence of fundamental rules accepted by officials as stipulating these law-
making procedures. In particular, the ‘Rule of Recognition’ which is the essential
constitutional rule of a legal system , acknowledged by those officials who administer the
law as specifying the condition or criteria of legal validity which certify whether or not a
rule is indeed a rule.

Hart’s Concept of Law

Professor Hart (1907) is widely regarded as one of the most prominent advocates of
British positivist in modern times. He critique Austin’s thesis in his influential work titled
“The Concept of Law”.

Nature of legal system:- In the concept of Law prof. Hart cautionly analysis the concept of
social rule. He proposed that law consists of norms with broad applicability and non optional
character. These norms are subject to formalisation, legislation and adjudication. In essence
of law comprises social norms that have evolved to take on the form of legal regulations.
The term law refers to a set of publicly ascertainable regulations.

Legal Rules and Duty:- According to Hart, a legal rule establishes a code of behaviour that
is followed with an expectation of compliance. The law sets a standard of behaviour rather

3 h t t p s : / / w w w. t u t o r i a l s p o i n t . c o m / h - l - a - h a r t - a n d - h i s - c o n t r i b u t i o n - t o -

law#:~:text=Hart's%20writings%20were%20basically%20a,all%20social%20and%20mora
l%20principles (last visited on 13th January, 2025 at 11:05 am).
than making a mere demand. People follow this norm not only out of a sense of duty but also
because they expect others to do the same . This perspective emphasis duty over coercion
and highlights the role of social acceptance.

Duty v/s coercion:- Hart stressed that the law is more concerned with duty than with
coercion.while individuals Cannot be forced to obey the law ,they are considered to have a
duty to do so. Duty and responsibility are closely related concepts in this context.

Internal and External Elements:- Hart made a distinction between the internal and external
aspect of rules . Signifies that a rule is accepted by people ,who habitually obeyed (defined
by Austin) indicates predictive Theory focused solely on external elements and ignore
internal aspect of rules

Core of Legal system:- Hart argued that a legal system’s core consists of the combination of
primary and subsidiary rules .for a legal system to function effectively, both citizens must
adhere to primary norms and authorities must follow secondary rules. These two
requirements are both necessary and sufficient for the existence of legal system.4

The Concept of Primary and Secondary Rules

A central aspect of Hart’s Theory of law is the distinction between primary and
secondary Rules.

Primary Rules

Hart asks us to imagine a community in which only primary rules exists without a
legislature , Court or officials of any kind. According to Hart primary rules are those that
impose duty upon individuals and are binding because of practices of acceptance which
people are required to do or to abstain from certain actions. Hart typically characterised
primary rules are impose duties or obligation on individual in primitive community.
According to him it would required three modification.5 The defects are -

A) In the social structure of primary rules is what we may call uncertainty.

B) Rules are static in character

C) The regime of primary rules is the inefficiency.

4https://lawbhoomi.com/analytical-school-of-jurisprudence/ (last visited on 13th January,

2025 at 4:40 pm).

5https://www.slideshare.net/Shruti101112/analytical-positivism (last visited on 14th

January, 2025 at 8:55 am).
 Primary Rules are the substantive rules that govern our behaviour, such as criminal
laws, contract laws and Tort laws. They are rules of obligation that stipulate what individuals
must or must not do.6

Secondary Rules

Secondary rules are those rules which confirm ‘powers’ like contract , marriage,
will, Delegated legislation – power to make law. There is a specific relationship between
these rules which rather systematically comprises a legal system and legal order.

Secondary rules provide for authoritative and centralised sanctions of the system.
In short the rules of recognition lay down criteria for identifying the primary rules.
Secondary rules have been divided into three more types, these are as follows –

A) Rule of Adjudication

B) Rule of change

C) Rule of Recognition

Example- contract law rules that enable parties from contracts, the rules that allow
testators to create a will, the constitutional rules that confer legislative powers on congress,
the statue that authorities the supreme court to promulgate rules of practice and procedure
for the federal courts.Hart remarked the question what law is as: law is union of primary and
secondary rules. In this manner the law is born.7

Difference between Primary and Secondary Rules

A) Under primary rules, human beings are required to do or abstain from certain action.

Secondary rules are in a sense parasitic upon or secondary to the first.

B) The primary rules bind people whether they like or not ,wish or not.

Secondary rules best facilities upon them for realising their wishes.

C) Primary Rules are essential for social life.

Whereas secondary rules are necessary for the development of a legal system.8

6Supra Note 2 at pp.204-206

7https://www.lawnotes4u.in/prof-h-l-a-harts-concept-of-law-jurisprudence/ (last visited on

14th January, 2025 at 10:37 am)

8https://www.slideshare.net/slideshow/analytical-positivism-and-h-l-a-hart-s-concept-of-

law/259664291 (last visited on 14th January, 2025 at 11:10 am)

Rules of Recognition

Hart believed that validity and binding force of a law is widely accepted by the
people, then it imposes a duty on them to abide by the law due and it would be enforceable
due to the virtue of its recognition, additionally, he mentioned that if the law is enacted by
the state, then as well it has the value of recognition and is binding on the citizens. Hart
introduced this rule as a foundation rule that provides the criteria for legal validity within a
legal system.This concept clarified how legal system operate cohesively and how individuals
identify what counts as law in specific society. The rules of recognition that recognises other
rules.

Criticism of Hart’s Proponents

The theories of HLA Hart have faced criticism and alternative perspectives from
jurists like Ronald Dworkin and Lon Fuller:

Ronald Dworkin: Dworkin challenged Hart’s concept of law by introducing the distinction
between ‘rules’ and ‘principles.’ He argued that a legal system should not be seen merely as
a collection of rules but as a combination of sound principles and policies. According to
Dworkin, a principle is a norm that must be followed because it is a necessity of justice,
fairness, or another facet of morality. In Dworkin’s view, law is not just about rules but also
about upholding principles of justice and morality.

Lon Fuller: Fuller emphasised that the legal system should concern itself with both “law as
it is” and “law as it ought to be.” He believed that the law should not be divorced from the
concept of morality. Fuller argued that the legal system is a tool for guiding normal human
behaviour and it should reflect not only existing laws but also moral principles and values. In
his famous work “The Morality of Law,” Fuller explored the idea that law should aim for
internal morality, which means that it should align with the principles of fairness, justice and
morality.

Key contribution of H.L.A Hart to analytical positivism

1.Critique and refinement of Austin’s command Theory :- Hart challenged John Austin’s
“command Theory” of law which defined law as order backed by command issued by a
sovereign.

Hart argued that this theory failed to account for the complexity of modern legal
system, particularly the normative aspect of rules and the distinction between legal rules and
mere coercion.

2.The Concept of Rules:- Hart introduced the distinction between primary rules (rules that
impose duties) and secondary rules (rules about rules, such as those governing legislation,
adjudication and rule of recognition)
 This dual structure explained how legal systems maintain continuity adaptability and
authority.

3.The Rule of Recognition:- Hart believed it is most vital and crucial principle of secondary
rules. It is that rule which recognises other rules additionally he mentioned that if the law is
enacted by the state ,then as well it has the value of recognition and is binding on the
citizens.

4. Separation of Law and Morality:- Hart reaffirmed the positivist position that there is no
necessary connection between law and morality. However he acknowledged that law often
incorporates moral values and that the legal systems can be criticised on moral grounds.

He debate with Ronald Dworkin highlighted the limits and tentions within legal
positivism on this issue.

1. Hart’s response to natural law critique:- By refining the positivist approach , Hart
addressed criticisms from natural law theorists , such as Lon Fuller, who emphasised
the procedural moral aspect of law. Hart defended the analytical separation of law’s
descriptive and normative dimensions.

2. Laws social practice:- Hart emphasised the importance of law as a social

phenomenon, governed not merely by coercion but also by acceptance and shared
practices among legal officials and the public.

Analytical Clarity by Hart

Hart brought conceptual rigour to the study of legal systems creating tool like the
distinction between primary and secondary rules that remain influential.

By admitting the role of morality in understanding law without conflating the two, Hart’s
work offered a balanced view compared to more rigid positivist theories.

Practical Relevancy –

Hart’s framework has been applied widely in comparative legal analysis,

constitutional law and international legal studies.

Conclusion:-

H.L.A Hart contribution have profoundly shaped the field legal philosophy.His work
remains a cornerstone of analytical positivism, inspiring subsequent theorists such as Joseph
Raz, John Gardner and Neil McCormick while sparking enduring debates with critiques
highlight areas for further exploration, Hart’s framework continues to provide a foundational
lens for understanding nature and functions of the Law.
 -:Bibliography:-

Books

1. S. N. Dhyani, Fundamentals of Jurisprudence, The Indian Approach, Central Law

Agency, Allahabad, 3rd edition (2005), Reprint (2015).

2. Dr. Sanjeev Kumar Tiwari, Jurisprudence Legal Theory and Elements of law,
Samudhvab Publisher and Book Seller, Kolkata, 1st edition (2012), Reprint 2021.

3. V.D. Mahajan’s Jurisprudence and Legal Theory, Eastern Book Co. (EBC), India, 5th
edition.

Slides

4. https://www.slideshare.net/slideshow/analytical-positivism-and-h-l-a-hart-s-concept-
of-law/2596642

5. https://www.slideshare.net/slideshow/analytical-positivism-and-h-l-a-hart-s-concept-
of-law/259664291

6. https://www.slideshare.net/Shruti101112/analytical-positivism.

Websites

7. h t t p s : / / w w w. t u t o r i a l s p o i n t . c o m / h - l - a - h a r t - a n d - h i s - c o n t r i b u t i o n - t o -
law#:~:text=Hart's%20writings%20were%20basically%20a,all%20social%20and%20
moral%20principles

8. https://blog.ipleaders.in/analytical-school-of-jurisprudence/

9. https://www.lawnotes4u.in/prof-h-l-a-harts-concept-of-law-jurisprudence/