Answer

H.L.A. Hart (1907–1992) is regarded as one of the most influential legal

philosophers of the twentieth century, particularly for his work The Concept of
Law. In it, he moves away from older positivist theories—like John Austin’s
“command theory”—and offers a more nuanced account of how legal systems
actually function. Below is a structured discussion of Hart’s core ideas,
reflecting on the key themes typically covered in exam questions on his theory.

1. Introduction to Hart’s Legal Positivism

Hart’s legal positivism focuses on the idea that law is essentially a social
construct, validated by certain recognized criteria rather than by moral or
divine authority. Unlike natural law theorists, who believe law is grounded in
morality or some higher norm, Hart argues that law’s validity arises from its
source (i.e., from recognized human institutions and practices) and not
necessarily from its moral content. This perspective does not deny that law and
morality can intersect but maintains that the question of whether a rule is law
is separate from whether it is moral.

2. Critique of Austin’s “Command Theory”

A starting point for Hart is his critique of John Austin’s command theory, which
states that law is essentially a command issued by a sovereign backed by
threats of sanctions. Hart finds this explanation too simplistic because:
1. Continuity of Legal Authority: A legal system does not crumble each
time a sovereign changes or dies. Hart notes that Austin’s theory cannot
adequately account for how authority persists through institutional
structures rather than just the will of a single sovereign.
2. Range of Legal Rules: Not all legal rules impose duties or threaten
sanctions. Many laws (e.g., those governing contracts or wills) confer
powers and facilitate orderly social life rather than simply impose
obligations.
3. Internal Aspect of Rules: Hart stresses that law is followed not merely
due to the threat of sanctions but because people generally accept and
internalize legal rules. This acceptance (the “internal point of view”) is an
 important aspect neglected by Austin’s purely external, command-based
model.

3. The Union of Primary and Secondary Rules

To address these shortcomings, Hart introduces a system composed of two
types of rules:
1. Primary Rules: These are rules that impose duties or obligations on
individuals. They tell members of a society what they must or must not
do (e.g., prohibitions on theft, assault, etc.).
2. Secondary Rules: These are rules about how primary rules are created,
changed, recognized, or adjudicated. They do not impose direct duties
on individuals but rather confer powers on legal institutions and officials.
Secondary rules are those rules which confirm ‘powers’ like Contract,
Marriage, Will, Delegated Legislation – power to make law. In the Indian
Constitution, Schedule VII gives a list namely State, Centre , and
Concurrent List, which conferred power to respective organs to make
laws. There is a link between these primary and secondary rules. There is
a specific relationship between these rules which rather systematically
comprises a legal system and legal order.
Secondary rules come in three main types:
o Rule of Recognition: A foundational rule that provides the criteria
for legal validity. It tells us what counts as law within a given legal
system (e.g., referencing a constitution, legislative enactments,
judicial precedents
o Rules of Change: Rules that empower certain authorities or bodies
to create, modify, or repeal primary rules. These rules explain how
new legislation is passed or old laws are amended. e.g. Article 368
gives power to Parliament to amend the Constitution and
procedure thereof. Thus it gives the power to amend the
Constitution. This power includes the power to repeal, remove
difficulties. It is equally applicable to delegated legislation.
o Rules of Adjudication: Rules that establish processes for resolving
disputes and applying the law. They grant judicial authorities the
power to interpret and enforce legal rules.
Hart’s insight is that a mature legal system arises from the “union” of these
primary and secondary rules, forming a stable yet flexible framework of
governance. ). e.g. Article 32, which empower Supreme Court to issue
prerogative writ: Article 131, 132, 134, 133 that empower Supreme Court the
original and Appellate jurisdiction. Article 323A and 323 B empowers tribunals
to adjudicate matters in dispute. All those articles in the Constitution are power
conferring. They enable a court to decide a particular dispute.

4. The Rule of Recognition

Perhaps the most pivotal of Hart’s secondary rules is the rule of recognition,
which identifies the ultimate source of legal authority. In modern states, the
rule of recognition might be found in a constitution or in established
parliamentary procedures. Once a rule passes the tests specified by the rule of
recognition, it is deemed valid law.
Importantly, Hart acknowledges that the rule of recognition itself is not
validated by another, higher rule—rather, it is accepted as the ultimate
reference point by legal officials and the community. This acceptance (the
“internal aspect”) is crucial; it is what makes the rule of recognition both
authoritative and socially embedded.

5. Internal and External Aspects of Law

Hart draws a crucial distinction between the external perspective on law—how
an observer sees law operating in society (including the idea of sanctions or
commands)—and the internal perspective, which captures how participants in
the legal system (e.g., judges, lawyers, citizens who accept the law) view the
rules as reasons for action. This internal aspect is what explains the normativity
of law: people do not just obey law out of fear of punishment; they often
follow it because they consider it legitimate and binding.

6. Law and Morality

Hart’s theory separates legal validity from moral content, but he does not deny
the possibility of overlap. While he acknowledges that many legal systems
incorporate moral ideas (e.g., prohibitions against harm, ideas of justice), he
insists that moral content is not a prerequisite for a rule to be legally valid.
Thus, an immoral rule can still be law if it is recognized by the legal system’s
criteria. This stance sets Hart apart from natural law theorists, who typically
argue that an unjust law is not truly law.
Hart also recognizes that in practice, many people conflate legal and moral
obligation, and that law can be a vehicle for moral values. Yet, from a strictly
analytical standpoint, law and morality remain conceptually distinct.

7. Positivism, Social Practices, and the Open Texture of Law

Hart’s positivism is firmly rooted in the idea that law arises from human social
practices. He speaks of the “open texture” of law, meaning that legal language
inevitably contains areas of vagueness or ambiguity, especially in unforeseen
circumstances. Judges and legal practitioners use interpretative methods to
decide hard cases where rules do not clearly apply. Thus, while rules are central
to Hart’s system, he acknowledges the need for judicial discretion in the
penumbra of unclear cases.

8. Criticisms and Hart’s Responses

Hart’s theory has been challenged from several directions:
1. Natural Law: Critics argue Hart’s separation of law and morality
undermines moral accountability. Hart’s response is that recognizing the
descriptive fact of a law’s validity is different from endorsing it morally.
2. Fuller’s Critique: Lon Fuller argued that law is inherently moral, because
it must meet certain standards (like fairness, publicity, and consistency)
to function. Hart concedes that these are procedural virtues but
maintains they do not guarantee moral content in the substantive sense.
3. Dworkin’s Critique: Ronald Dworkin contended that principles (not just
rules) play a significant role in judicial decision-making, challenging
Hart’s emphasis on rules. Hart, however, maintains that the rule of
recognition can include principles, provided they are accepted by the
legal system.
9. Conclusion
H.L.A. Hart’s legal theory marks a pivotal shift in legal positivism. By moving
beyond the narrow “command and sanction” model, Hart offers a richer
account of law as a complex union of primary and secondary rules undergirded
by social acceptance. The concept of a rule of recognition provides an anchor
for legal validity, while the internal perspective explains why law is seen as
binding by its subjects. Hart’s approach preserves the autonomy of law from
morality, while acknowledging that in practice, the two frequently overlap.
In an exam context, key takeaways would include:
• Understanding Hart’s critique of command theory.
• Explaining the nature and function of primary and secondary rules.
• Highlighting the rule of recognition as central to legal validity.
• Distinguishing Hart’s position from both Austin’s and natural law
theories.
• Appreciating the significance of the internal aspect and the open texture
of law.
Overall, Hart’s ideas remain fundamental to contemporary jurisprudence,
shaping ongoing debates about the relationship between law, society, and
morality.