This series of eight (or more) lectures is intended to provide an introduction to one conception of jurisprudence through a close study of Hart's Concept of Law (1961; 2nd ed.1994) and selected reactions to it. The lectures presuppose no prior knowledge of jurisprudence and might prove particularly useful to second year students who have recently started jurisprudence tutorials or who are anticipating such tutorials next term or in Michaelmas, 2000. The lectures may also be of assistance to finalists commencing or anticipating revision. Although these lectures are not intended to be at a level appropriate to graduate studies, they may be helpful in cases where a graduate student has not previously studied Hart in any detail.
ANALYTICAL OUTLINE OF LECTURE TOPICS:
Introduction to Legal Theory
(a) What are the objectives of legal theory?
(b) Is a general theory of law possible?
(c) Conceptual structure; conceptual reductionism; "understanding law"
Philosophical Basis & General Summary of Hart's Concept
(a) What are the major tenets of linguistic philosophy and how are they manifest in Hart's Concept of Law?
(b) What is Hart's objective in his Concept of Law and what strategy does he adopt?
Chapter I: Hart's Point of Departure
(a) The educated man and the salient features of a legal system
(b) The notion of a rule
(c) Rules and Habits
(d) Definition per genus et differentiam
Chapter II: Austin's Theory of Law
(a) What must be added to the "gunman situation" to get to Austin's theory?
(b) Command Theory
(c) Duty in Austin's theory
(d) How valid are Austin's exceptions?
(e) Is custom really law?
(f) What are Hart's objections to Austin's theory?
(g) Public and Private Power Conferring Rules
(h) The democratic legal order
(i) Can law create rights only?
(j) Sociological function and legal form
Chapters III & IV: Variety, Nullity, Fragmentation & Normativity, Habits, Rules and Constitutional Law
(a) Is nullity a sanction?
(b) To whom is the law directed? (Kelsen, Ross)
(c) Social function cf logical analysis
(d) Logic and Sociology
(e) Self-binding laws
(f) Succession (Rules and habits, again)
Chapter V: The Fresh Start, Primary and Secondary Rules, and the D-rule Society.
(a) More on habits and rules
(b) Internal aspect
(c) Rules of succession
(d) Acceptance and acquiescence
(e) What claim does Hart make for the union of primary and secondary rules? How might he prove it? Does he?
Chapter VI: The Rule of Recognition
(a) Conceptual Analysis?
Chapter VII: Rules, Scepticism and Formalism
(a) Realism and Hart
(b) Judicial Process
Chapter VIII: Justice and Morality
(a) Moral rules and legal rules
Chapter IX: Natural Law
(a) Minimum Content (MacCormick, "What About Sex?)
(b) Hart and Marxism
(c) Hart and Fuller
Chapter X: International Law
(c) International morality or international law?
(d) The rule of recognition and international law?
(e) Hart's changing method?
(a) "Practice" theory of rules (NB "Postscript" pp 254 - 259)
(b) Rules and reasons ( Warnock)
(c) Internal and external aspects of rules (Raz).
(a) Law and Morality (Fuller)
(b) Principles and Rules (Dworkin)
(c) Common law and rules (Simpson)
(a) "Soft Positivism" (Hart cf Raz)
(b) What is Jurisprudence? (Dworkin)
(c) Defeasibility (Tur and Schauer)
H.L.A. Hart, The Concept of Law, (Oxford, 1961; 2nd edn 1994 with new Postscript).
H L A Hart, "Commands and Authoritative Legal Reasons" in Essays on Bentham (Oxford, 1982)
Bertrand Russell, "The Cult of Common Usage" in Portraits from Memory and Other Essays, Readers Union ed., 1958, pp.161-167.
Hans Kelsen, General Theory of Law and State, pp.162-164 (on normative and sociological jurisprudence).
John Austin, Lecture I, The Province of Jurisprudence Determined, pp.9-33.
A.W.B. Simpson, "The Common Law and Legal Theory" in Oxford Essays in Jurisprudence, Second Series, ed. A.W.B. Simpson, Oxford, 1973, pp. 77-99 (re "customary law").
R W M Dias, Jurisprudence, Chapter 6 ( re "Custom")
J.A. Gibbs, "Definition of Law and Empirical Questions" in Law and the Social System, ed. M. Barkun, New York, 1973, pp.16-37.
Hans Kelsen, Pure Theory of Law, Chapter XIII, "Interpretation", pp.348-356.
Joseph Raz, Practical Reason and Norms, London, 1975, pp.53-58 and pp.171-177.
Lon L. Fuller, The Morality of Law, (Yale University Press, 1970) passim.
Ronald M. Dworkin, "Is Law A System of Rules?" in Essays in Legal Philosophy, ed. Robert S. Summers (Oxford, 1970), pp.25-60, reprinted from 35 U. CHI. L. REV. 14 (1967).
R Kadish and S H Kadish, Discretion to Disobey (Stanford, 1973).
N MacCormick, H L A Hart (Arnold, London, 1981).
N MacCormick, "Contemporary Legal Philosophy: The Rediscovery of Practical Reason" 10 Journal of Law and Society 1-15 (1983).
Richards, "Rules, Policies and Neutral Principles: The Search for Legitimacy in Common Law and Constitutional Adjudication" 11 Ga. L. Rev. 1069 (1977).
R S Summers, A Review of Hart's Concept 1963 Duke Law Review 629
C Tapper, "A Note on Principles" 34 MLR 628 (1971).
R H S Tur, "Positivism, Principles and Rules" in Attwooll, ed. Perspectives in Jurisprudence (Aberdeen University Press, 1977), pp 42-75.
R H S Tur, "Austin, John (1790-1859) " in The New Palgrave Dictionary of Economics and the Law, Vol 1, pp 13213-3 (1998)
R H S Tur, "Rule of Recognition" in The New Palgrave Dictionary of Economics and the Law, Vol 3, pp 386-389 (1998)
Frederick Schauer, Playing by the Rules (Oxford, 1991).
W J Waluchow, Inclusive Legal Positivism (Oxford, 1994)
Tom D Campbell, The Legal Theory of Ethical Positivism (Dartmouth, 1996).
Stephen Guest, "Two Strands in Harts's Theory of Law: A Comment on the Postscript to Hart's The Concept of Law" in Positivism Today, Stephen Guest ed (1996), pp 29 - 44.
CASES, ETC. REFERRED TO IN LECTURES:
Prohibitions del Roy 1607 12 Co Rep 603
Calder (et Wife) v Bull (et Wife) 3 US 386 (1798)
Rann v Hughes (1778) 7 T.R. 350 n; 4 Bro. P.C. 27
Eastwood v Kenyon (1840) 11 A & E 438
Riggs v Palmer 115 NY 506, 22 N E 188 (1889)
Bowmakers Ltd. v Barnet Instruments Ltd.  KB 65
Practice Statement (Judicial Precedent)  1 WLR 1234
R v Preddy; R v Slade; R v Dhillon  AC 815
R v Governor of Brockhill Prison, ex parte Evans  QB 443
R v Governor of Brockhill Prison, ex parte Evans (No 2)  QB 1043
Kleinwort Benson Ltd v Lincoln City Council  2 AC 349
Technical stuff (shortly after citation 46 in lectures)
Exceptions to the thesis that Laws are Commands
I. Laws which are not commands (conceded, perhaps too easily, by Austin)
(1) Declaratory Laws
(2) Laws Repealing Laws
(3) Imperfect Laws
(a) Roman Jurists' sense of "laws without sanctions"
(b) Rules of Positive Morality
II. Laws which may seem not imperative (not conceded by Austin)
(1) Laws which merely create rights
III. Express exclusions (Rightly conceded by Austin)
(1) Constitutional Law
(2) International Law
ad I (3) Coercion? Laws without sanctions?
Roman Jurists' Imperfect Law, e.g. "Steal Not"; Austinian Law: "If you steal you will be punished".
For Austin, (a) is not a law unless the courts and executive organs infer a sanction and apply it. But that simply means that an Imperfect Law is an incomplete law in the sense that a sanction has not yet been annexed to it. But that means that it is only a part of a complete (Austinian) law; it is a fragment of a law, not a complete law. But not being a law it cannot be an example of a law which is not a command, and therefore it cannot be a counter-instance to Austin's thesis. As to (b) Rules of Positive Morality are never Laws and therefore are not exceptions to Austin's thesis either.
ad I (1) Declaratory Laws - Commands?
A so-called declaratory law; that is, a "law" to explain existing law (such as an Interpretation Act) is admitted by Austin as an exception to his thesis. But this may be too swift since it can readily be shown than an interpretation section or even parts of the Interpretation Act, are parts of the very meaning of other laws. Thus the import of the "declaratory law" can be included as an element in the content of the pre-existing law. Declaratory Laws are thus Fragments of Laws and not complete laws. They are not, therefore, counter instances to Austin's thesis. (Note that "declaratory" is a misleading term and may be used as a cloak for law-making activity, where new law is created. In England, "The Declaratory Theory of the Common Law" holds that common law judge merely declare pre-existing common law and do not make it, whereas in Scotland the "Declaratory Power of the High Court" refers not to a declaration of what the law already is, but to an actual law-making power, a power to declare new offences).
ad I (2) Laws Repealing Laws are slightly problematic: they cannot be parts of something which no longer exists. Austin styles such laws "permissions"; but since he also holds that all permissive laws are at bottom imperative, such laws cannot be counter-instances to his thesis. One can only be "permitted" or be "free" if others are "prohibited" or "bound"; every person's legal freedom is another person's legal subjection - rights and duties are correlatives. Thus any law which "permits", indirectly "commands"; Thus a Law Repealing Law permits and therefore indirectly commands. Thus a law Repealing Law is not an exception to Austin's thesis: The negation of a command must also be a command.
Austin seeks to show that II(1) and II(2) are not really exceptions to his thesis;
ad II (1) Austin argues that rights and duties are correlative and that it is therefore impossible to create rights without imposing duties. Thus there can be no laws merely creating rights. Thus II (1) is not a counter-instance.
ad II (2) Austin assimilates Custom to Command by holding that, although Custom as such is positive morality at inception, when it is "adopted" or "recognized" by the courts it becomes the circuitous command of the Sovereign, under the rubric "What the Sovereign permits, he commands". Thus for Austin, all judge-made law is the circuitous command of the sovereign, and therefore no exception to his thesis.
ad III Austin allows, as must we, that International Law and Constitutional Law are exceptions to his thesis.
[N.B. Much of the argument turns upon the obscure notion of "a complete law". But what is a complete law? What is an individual law?]
Some quite interesting , not very technical stuff (after citation 50 in lectures)
CALDER (et WIFE) v. BULL (et WIFE), 3 U.S. 386 (1798)
Chase, Justice [3 U.S. 386, 387-388]: "I cannot subscribe to the omnipotence of a State Legislature, or that it is absolute and without control; although its authority should not be expressly restrained by the Constitution, or fundamental law, of the State. The people of the United States erected their Constitutions, or forms of government, to establish justice, to promote the general welfare, to secure the blessings of liberty; and to protect their persons and property from violence. The purposes for which men enter into society will determine the nature and terms of the social compact; and as they are the foundation of the legislative power, they will decide what are the proper objects of it: The nature, and ends of legislative power will limit the exercise of it. This fundamental principle flows from the very nature of our free Republican governments, that no man should be compelled to do what the laws do not require; nor to refrain from acts which the laws permit. There are acts which the Federal, or State, Legislature cannot do, without exceeding their authority. There are certain vital principles in our free Republican governments, which will determine and over-rule an apparent and flagrant abuse of legislative power; as to authorize manifest injustice by positive law; or to take away that security for personal liberty, or private property, for the protection whereof of the government was established.
An ACT of the Legislature (for I cannot call it a law) contrary to the great first principles of the social compact, cannot be considered a rightful exercise of legislative authority ... It is against all reason and justice, for a people to entrust a Legislature with SUCH powers; and, therefore, it cannot be presumed that they have done it. The genius, the nature, and the spirit, of our State Governments, amount to a prohibition of such acts of legislation; and the general principles of law and reason forbid them."
Iredell, Justice [3 U.S. 386, 398]: "If, then, a government, composed of Legislative, Executive and Judicial departments, were established, by a Constitution, which imposed no limits on the legislative power, the consequence would inevitably be, that whatever the legislative power chose to enact, would be lawfully enacted, and the judicial power could never interpose to pronounce it void. It is true, that some speculative jurists have held, that a legislative act against natural justice must, in itself, be void; but I cannot think that, under such a government, any Court of Justice would possess a power to declare it so. Sir William Blackstone, having put the strong case of an act of Parliament, which should [3 U.S. 386, 399] authorise a man to try his own cause, explicitly adds, that even in that case, 'there is no court that has power to defeat the intent of the Legislature, when couched in such evident and express words, as leave no doubt whether it was the intent of the Legislature, or no.' 1 Bl. Com. 91.
(Indeed, Blackstone expressly states that "... to set the judicial power above that of the legislature ... would be subversive of all government". There then follows immediately on this, the widely quoted passage, "But where some collateral matter arises out of the general words, and happen to be unreasonable: there the judges are in decency to conclude that this consequence was not foreseen by the parliament, and therefore are at liberty to expound the statute by equity, and only quoad hoc disregard it" Moreover, Blackstone acknowledged that the rule which he laid down was restricted and that he knew that "... it is generally laid down more largely, that acts of parliament contrary to reason are void".
But in Day v Savadge (1614) Hobart 85; 80 ER 235, an action of trespass for taking away a bag of nutmegs: "... even an Act of Parliament, made against natural equity, as to make a man Judge in his own cause, is void in itself, for jura naturae sunt immutabilia, and they are leges legum" and this conception of limited legislative competence did not finally succumb to the notion of legislative omnipotence until Lee v Bude and Torrington Junction Railway Company 1871 LR 6CP 582.
"... the most important [point] is this: the dispute about Elmer was not about whether judges should follow the law or adjust it in the interests of justice .... It was a dispute about what the law was, about what the real statute the legislators enacted really said" (Dworkin, Law's Empire, p 20). Similar issues (i.e is law itself an essentially contested concept?) arise out of R v Chief N I Commissioner ex p Conner  QB 758. Indeed, such disputes about what the law really is, is a universal feature of legal discourse, so pervasive as itself to be accounted for in any general theory of law. RHST thinks that Dworkin votes for one of the two contestants: he, like "law students ... [is] ... contemptuous of [Grey's] mechanical jurisprudence" (Law's Empire p 18). But what RHST proposes is that we take this "duality" of law seriously; law, like Janus "looks both ways" (introvertedly exclusionary and extrovertedly inclusionary); as Fish says "The law tells two stories". For RHST the challenge for legal theory is to accommodate the two stories which challenge is not met by "cutting the Gordian knot" thereby privileging the one and marginaling the other story.
More technical stuff (after citation 63 in lectures)
Can all laws be assimilated to "Orders backed by threats"?
Arguments for the fundamental uniformity of all legal rules:-
I Nullity as a Sanction
If law is a union of different types of rules, I and II must be false. Hart argues:-
ad I (a) Nullity is not a Sanction because nullity is not an evil. This assumes that a sanction is necessarily perceived as an evil by the individual against whom it is directed. If a sanction is not always an evil, then it is no different from nullity which may also be, according to circumstances, subjectively perceived as an evil.
(b) Nullity is not a Sanction because we cannot subtract nullity from a rule and leave anything intelligible, whereas the removal of the sanction from the rule still leaves an intelligible standard of behaviour. This argument, although sound, does not disprove the "uniformity thesis".
Compare "making a will" with "committing an assault": A valid will is made if certain legally determined conditions (a, b, c, d) are satisfied; an assault is committed if certain legally determined conditions (p, q, r, s) are satisfied. Unless the conditions are satisfied no legally determined consequence follows. The "will" is invalid; the alleged "assault", a "non-assault"
Valid will if and only if a, b, c, d ; If not a or b or c or d then no valid will
If there is a valid will, then the legally determined consequences ought to be implemented But here the legally determined consequences do not include a sanction. A valid will is an incomplete condition of a sanction, i.e. if the will is valid, it justifies, together with the satisfaction of other conditions, the application of a coercive act; these further conditions include interference with the property transferred under the will, and the initiation of legal action by the beneficiary.
Assault if and only if p, q, r, s; If not p or q or r or s then no assault
If an assault is proved to have occurred the legally determined consequence ought to be implemented. Here the legally determined consequence is or includes a sanction. Assault is a complete condition of a sanction, i.e. if an assault is proved to have occurred, it justifies, by itself, the application of a coercive act.
ad II (a) Fragmentation would fail if sanctionless laws are conceivable. But this is never argued for in the Concept. Indeed it is only by fragmentation that one can abstract a so-called law without a sanction; e.g. "Steal Not !" is a fragment of or dependent upon the complete law "If someone steals he ought to be punished". But even if sanctionless laws are possible, this would not count against the uniformity thesis. The thesis that all "laws" are of the same logical type is not the thesis that all laws are coercive.
(b) Fragmentation and Dependent Norms; i.e. the views of Bentham and Kelsen, would distort the social function. But this is not an argument against the possibility of presenting all law in a body of propositions of the same logical type; it is merely an argument against the desirability of doing so. Thus, in a sense, Hart admits that all law can be presented in a body of uniform propositions but that, in order to highlight different social functions, it should be presented in propositions of different types. But the same logical form can subserve a multitude of social functions; since logical form does not reveal social function, it cannot distort it either.
GENERAL SUMMARY OF THE STRUCTURE OF HART'S CONCEPT:
Preface: Hart tells us that the object of his work is to clarify the meaning and relationship of (i) law (ii) coercion, and (iii) morality as different but inter-related, social phenomena. He lays claim to the status of analytical jurist but, as I will argue, many of his "analyses" are not those of the logical analyst but those of the linguistic philosopher. There is, perhaps, more linguistic philosophy in Hart's Concept than there is analytical jurisprudence. Further, Hart claims that his work can be taken as an essay in descriptive sociology, because attention to words and usage relate to the implicit social context. One must, therefore, beware of criticising Hart without first checking which of his three caps he is wearing. Yet there is here an obvious risk of methodological syncretism, i.e. the uncritical mixing of methodologically different disciplines (see The Pure Theory of Law, H. Kelsen, p.1). I shall argue that Hart's concept of a Rule of Recognition, being a methodologically hybrid concept, cannot function either as a conceptual basis for analytical jurisprudence, nor as an accurate sociological description.
Chap. I: Chiefly an exercise in puzzlement; together with a series of points which help to clear the ground for Hart's own thesis, especially:
(b) different types of rules/the variety of laws,
(c) the inadequacy of definition per genus et differentiam
Chaps II, III & IV: A series of criticisms of what Hart calls "the simple imperative theory of law"; some of which are trivial and irrelevant; some of which are important. More groundwork is laid for the ultimate denouement in Chaps V and VI. Note especially the continuing build up of the notion of the varieties of laws.
Chaps. V & VI: Hart's thesis, "law consists in the union of primary and secondary rules". This union and all it implies is characteristic of modern legal systems, it signifies the step from the pre-legal world to the legal world or, at least, from primitive law to modern legal system. Hart regards the invention of power-conferring rules as being an advance as important as the discovery of the wheel. Types of rules are multiplied; there are rules of recognition, adjudication, and change.
Chap VII: Strategically, a necessary part of the Concept. Hart's thesis; "Many of the distinctive operations of the law, and so many of the ideas which constitute the framework of legal thought, require for their elucidation reference to both of these two types of rule, that their union may be justly regarded as the 'essence' of law, though they may not always be found together wherever the word 'law' is correctly used". "Our justification for assigning to the union of primary and secondary rules this central place is not that they will do the work of a dictionary, but they have great explanatory power". It follows that Hart must argue that the views of the extreme rule-sceptics are untenable in order to sustain his account of law as the union of different kinds of rules.
Chaps VIII & IX: Represent something of a digression, because these questions do not seem to allow of a resolution in terms of primary and secondary rules. Chap. VIII (on Justice and Morality) is, however, of independent importance and worth studying.
Chap X: Represents an application of his thesis to the question of International Law.
Postscript: Hart's considered response to many criticisms, especially those made by Dworkin and a recapitulation of Hart's views on "Legal Theory", "Legal Positivism", "Rules", "The Rule of Recognition", "The Practice Theory of Rules", "Rules and Principles", "Law and Morality", and "Judicial Discretion".
PASSAGES CITED IN LECTURES:
1. "Within a few years of its publication The Concept of Law transformed the way jurisprudence was understood in the English-speaking world and beyond. Its enormous impact led to a multitude of publications discussing the book and its doctrines, and not only in the context of legal theory, but in political and moral philosophy too." (Penelope A. Bulloch and Joseph Raz, The Concept of Law, 2nd edn p vii)
3. "Legal theory involves a study of the characteristic features essential to law and common to legal systems. Its object is the analysis of the basic elements of law which make it law and distinguish it from other forms of rules and standards, from systems or order which cannot be described as legal systems, and from other social phenomena". (J.D. Finch, Introduction to Legal Theory, 2nd ed. , London, 1974, p.2).
4. "In any comparative study of legal theory, a distinction must be maintained between the character of law and the content of law, or rather, of laws". (Finch, op.cit., p.3).
5. "Much of course of the amusement and of the instruction comes in drawing the coverts of the microglot, in hounding down the minutiae...". (John L. Austin, "A Plea for Excuses", Proceedings of the Aristotelian Society, Vol. 57 (1956-57) pp.1-30, reprinted in The Philosophy of Action, ed. Alan R. White, Oxford, 1968, p.19).
6. "... ordinary language ... embodies ... the inherited experience of many generations of men". (John L. Austin, op.cit., p.27).
7. "... our common stock of words embody all the distinctions men have found worth drawing ... they surely are likely to be ... more sound than you or I are likely to think up in our armchairs of an afternoon - the most favoured alternative method". (John L. Austin, op.cit., pp. 24-25).
8. "... language does not develop in a random or inexplicable fashion ... it is at the very least unlikely that it should contain either much more or much less than [its] purposes require ... it is at the same time very unlikely that any invented terminology will be an improvement". (G.J. Warnock, English Philosophy Since 1900, London, 1958, p.150).
9. "The very purpose of philosophy is to delve below the apparent clarity of common speech". (A.N. Whitehead, Adventures in Ideas, Cambridge, 1933, p.214).
10. "... common sense is the metaphysics of the savage". (Betrand Russell).
11. "Philosophy only states what everyone admits". (J.O. Urmson, cited E. Gellner, Words and Things, Pelican, 1968, p.111).
12. "Philosophy begins and ends in platitude". (J.O. Urmson, cited E. Gellner, Words and Things, Pelican, 1968, p.111).
13. "In general, the practice of ordinary language philosophy consists in digging out and clarifying the distinctions embedded in everyday usage. In whatever field these distinctions are found, there seems to be a kind of presumption that they will prove valid and useful and that once they have been fully articulated there is no need to go further. Some useful insights have been derived through this method; there is indeed a lot of tacit and subtle wisdom concealed in the interstices of everyday speech. But the tendency of the practitioners of this method has been to regard as an end in itself, what ought to be viewed as a useful adjunct to philosophical thought". (Lon L. Fuller, The Morality of Law, revised ed., London, 1970, pp. 195-196).
14. "... in the case of law, things which at first sight look ... strange ... have often been said ... many assertions and denials concerning the nature of law which at first sight ... seem strange and paradoxical. Some of them seem to conflict with the most firmly rooted beliefs and to be easily refutable ... these seemingly paradoxical utterances were not made by visionaries or philosophers concerned to doubt the plainest deliverances of common sense". (H.L.A. Hart, The Concept of Law, Oxford, 1961, pp.1-2).
15. "Academic environments are generally characterised by the presence of people who claim to understand more than they do. Linguistic Philosophy has produced a great revolution, generating people who claim not to understand when in fact they do. Some achieve great virtuosity at it. Any beginner in philosophy can manage not to understand, say Hegel, but I have heard people who were so advanced that they knew how not to understand writers of such limpid clarity as Bertrand Russell or A J Ayer". (Ernest Gellner, Words and Things, Pelican, 1968, p.68).
16. "A law, in the most general and comprehensive acceptation in which the term in its literal meaning is employed may be said to be a rule laid down for the guidance of an intelligent being by and intelligent being have power over him". (John Austin, The Province of Jurisprudence Determined, London, 1968, P.10).
17. "The most prominent general feature of law at all times and places is that its existence means that certain kinds of human conduct are no longer optional, but in some sense obligatory". (Hart, op.cit., p.6).
18. "All speculation about the nature of law begins from the assumption that its existence at least makes certain conduct obligatory". (Hart, op.cit, p.212).
19. "Even after watching a thousand games [of chess] it would still be possible to believe that it is against the rules to open with a rook's pawn". (Alf Ross, On Law and Justice, London, 1958, p.15).
20. "Take the fundamental question, What constitutes the law? You will find some text writers telling you that it is something different from what is decided by the courts of Massachusetts or England, that it is a system of reason, that it is a deduction from principles of ethics or admitted axioms or what not, which may or may not coincide with the decisions. But if we take the view of our friend, the bad man, we shall find that he does not care two straws for the axioms or deductions, but he does want to know what Massachusetts or English courts are likely to do in fact. I am much of his mind. The prophecies of what the courts will do in fact and nothing more pretentious are what I mean by law". (Oliver Wendell Holmes, Collected Papers, New York, 1920, p.173)
21. "... the concept of a rule, as we have seen, is as perplexing as that of law itself so that definitions of law that start by identifying law as a species of rule usually advance our understanding of law no further". (Hart, op.cit., p.15).
22. "... a life of unbroken disappointment and failure" (Austin, J., The Province of Jurisprudence Determined and The Uses of Jurisprudence, ed. H. L. A. Hart (third impression). London: Weidenfeld and Nicholson (1968) p xvi)
23. "... in obscure and honest poverty" (Macdonell, J. 1885. Austin, John 1790-1859 in Dictionary of National Biography. Oxford: Oxford University Press, 1995 edn..)
24. "... the science concerned with the exposition of the principles, notions and distinctions which are common to systems of law" (Austin 1968:367)
25. "a line of English analytical jurists [including] Amos, Clark, Markby, Hearne, Holland, and Salmond" (Austin 1968: xvii)
26. "The analysis of legal concepts is what jurisprudence meant for the student in the days of my youth. In fact it meant Austin. He was a religion ..." (Buckland, W. W., Some Reflections on Jurisprudence. Cambridge: University Press (1949), p 2).
27. "... the duty of the scientific inquirer is to distinguish the meanings of an important word from one another, to select the meaning appropriate to his own purposes, and consistently to employ the word during his investigations in this sense and no other" and "... one inestimable service of the Analytical School to jurisprudence and morals [is] that it furnishes them with a rigidly consistent terminology" (Maine, H. S., Early History of Institutions. London: John Murray. 7th edn., 3rd impression. (1914) pp 374 and 369)
28. "... the term command [an order backed by a sanction for non-compliance]... is the key to the science of jurisprudence" (Austin 1968: 13) and "... every positive law, or every law strictly so-called, is a direct or circuitous command of a [legally illimitable] monarch or sovereign number in the character of a political superior..." (Austin 1968: 134).
29. "nullity cannot ... be assimilated to a punishment attached to a rule as an inducement to abstain from the activities which the rule forbids" (Hart 1961:34)
30. "The notion that the common law consists of rules which are the product of a series of acts of legislation (mostly untraceable) by judges (most of whose names are forgotten) cannot be made to work, if taken seriously, because common law rules enjoy whatever status they possess not because of the circumstances of their origin, but because of their continued reception" (Simpson, B. "The Common Law and Legal Theory" (revised version) in Legal Theory and the Common Law ed W. Twining , Oxford: Basil Blackwell (1986), p14)
31. "charter society" (Waluchow , W. J., Inclusive Legal Positivism. Oxford: Claredon Press (1994, pp142-165)
32. "That part of the law of every country which was made by judges has been far better made than that part which consists of statutes enacted by the legislative. Notwithstanding my great admiration for Mr. Bentham, I cannot but think that, instead of blaming judges for having legislated. He should blame then for the timid, narrow, and piecemeal manner in which they have legislated, and for legislating under cover of vague and indeterminate phrases ..." (Austin 1968: 191).
33. "dissatisfied with all he did, Austin wrote little ... [and] ... could not even be induced to prepare a second edition of his work on jurisprudence" (Macdonell, J. 1885. Austin, John 1790-1859 in Dictionary of National Biography. Oxford: Oxford University Press, 1995 edn.).
34. "... buried in the idea of command there are ... elements which are crucial to the understanding of law" (Hart, H. L. A., "Commands and Authoritative Legal Reasons" in Hart, H. L. A., Essays on Bentham. Oxford: Oxford University Press (1982), p 268).
35. "... a command is primarily an appeal not to fear but to respect for authority". (Hart, op.cit., p.20).
36. "A command, then, is a signification of desire. But a command is distinguished from other significations of desire by this peculiarity: that the party to whom it is directed is liable to evil from the other, in case he comply not with the desire". (Austin, op.cit., p.14).
37. "... there must, wherever there is a legal system, be some person or body of persons issuing general orders backed by threats which are generally obeyed, and it must be generally believed that these threats are likely to be implemented in the event of disobedience. This person or body must be internally supreme and externally independent. If, following Austin, we call such a supreme and independent person or body of persons the sovereign, the laws of any country will be the general orders backed by threats which are issued either by the sovereign or subordinate in obedience to the sovereign". (Hart, op.cit., p.52).
38. "The concept of general orders backed by threats given by one generally obeyed, which we have constructed by successive additions to the simple situation of the gunman case, plainly approximates closer to a penal statute enacted by the legislature of a modern state than to any other variety of law. For there are types of law which seem prima facie very unlike such penal statutes, and we shall have later to consider the claim that these other varieties of law also, in spite of appearances to the contrary, are really just complicated or disguised versions of this same form". (Hart, op.cit., p.24).
39. "Every positive law ... is set, directly or circuitously, by a sovereign individual or body, to a member or members of the independent political society wherein its author is supreme ... The party or parties to whom a law is set, or the party or parties on whom a duty is laid, are necessarily obnoxious to the sanction which enforces the law and the duty ... It is set by a party armed with might, to a party or parties to whom that might can reach". (Austin, op.cit., p.350).
40. "Every law ... is a command". (Austin, op.cit., p.13).
41. "Being liable to an evil from you if I comply not with a wish which you signify, I am bound or obliged by your command, or I lie under a duty to obey it". (Austin, op.cit., p.14).
42. "... the evil which will probably be incurred in case a command be disobeyed or in case a duty be broken is called a sanction". (Austin, op.cit., p.15).
43. "If a determinate human superior, not in a habit of obedience to a like superior, receive habitual obedience from the bulk of a given society, that determinate superior is sovereign in that society, and the society (including the superior) is a society political and independent". (Austin, op.cit., p.194).
44. "... the power of a monarch properly so called or the power of a sovereign number in its collegiate and sovereign capacity, is incapable of legal limitation". (Austin, op.cit., p.254).
45. "... governments arise either out of the people or over the people. The English Government is one of those which arose out of a conquest, and not out of society, and consequently it arose over the people; and though it has been much modified from the opportunity of circumstances since the time of William the Conqueror, the country has never yet regenerated itself, and is therefore without a constitution" (Paine Rights of Man, Pelican Classic 1969, p 94)
48. "The admirers of customary law love to trick out their idol with mysterious and imposing attributes. But to those who can see the difference between positive law and morality, there is nothing of mystery about it. Considered as rules of positive morality customary laws arise from the consent of the governed, and not from the position or establishment of political superiors. But, considered as moral rules turned into positive laws, customary laws are established by the state: established by the state directly, when the customs are promulgated in its statutes; established by the state circuitously when the customs are adopted by its tribunals". (Austin, op.cit., p.32).
49. "Customary laws are positive laws fashioned by judicial legislation upon pre-existing customs. Now, till they become the grounds of judicial decisions upon cases, and are clothed with legal sanctions by the sovereign one or number, the customs are merely rules set by opinions of the governed, and sanctioned or enforced morally: Though, when they become the reasons of judicial decisions upon cases, and are clothed with legal sanctions by the sovereign one or number, the customs are rules of positive law as well as of positive morality. But, because the customs were observed by the governed before they were clothed with sanctions by the sanction one or number, it is fancied that customary laws exist as positive laws by the institution of the private persons with whom the customs originated". (Austin, op.cit., pp.163-164).
50 "... that the King in his own person cannot adjudge any case, either criminal, as treason, felony etc., or betwixt party and party, concerning his inheritance, chattels or goods, etc. but this ought to be determined and adjudged in some Court of Justice, according to the law and custom of England" (Prohibitions del Roy 1607 12 Co Rep 603)
51. "[There is a view that] to impute judge-made law to the sovereign, to suppose judges speak with the sovereign's will is one of foolish or knavish fictions with which lawyers darken the clearest truth ... [This is] groundless ... all judge made law is the creature of the sovereign or state". (Austin, op cit p 31)
52. "Austin by establishing the distinction between law and morals.... laid the foundation for a science of law". (Markby, Elements of Law, 1905, para. 12).
53. "What he [Austin] really had in mind was contemporary English law and primarily an English criminal statute". (Buckland, Some Reflections on Jurisprudence, p.4).
54. "... the social function [of criminal law]... setting up and defining certain kinds of conduct, as something to be avoided or done by those to whom it applies irrespective of their wishes". (Hart, op.cit., p.27).
55. "... some analogy... between .... general orders and the law of torts". (ibid).
56. "... there are important classes of law where this analogy with orders backed by threats altogether fails, since they perform a quite different social function". (ibid).
57. "... provide individuals with facilities for realizing their wishes, by conferring legal powers upon them to create, by certain specified procedures and subject to certain conditions, structures of rights and duties within the coercive framework of the law". (ibid).
58 "The power thus conferred ... is one of the great contributions of law to social life". (Hart, op.cit., p.28).
66. "This is a formidable and interesting theory purporting to disclose the true, uniform nature of law latent beneath a variety if common forms and expressions which obscure it". (Hart, op.cit., p.36).
67. "... if it is necessary to guarantee the efficacy of a norm prescribing a certain behaviour by another norm prescribing a sanction in the case the former is not obeyed, a never-ending series of sanctions, a regressus ad infinitum, is inevitable" (Kelsen, General Theory of Law and State, p 28)
72 "A parliament is not an information bureau, but a central organ for social direction". "Alf Ross, On Law and Justice, p.8).
76. "... the persistence of laws ... is something which cannot be made intelligible in terms of the simple scheme which conceives of laws as orders given by a person habitually obeyed". (Hart, op.cit., p.60)
77. "... it [persistence] involves the substitution, for the too simple notion of the habit of obedience to a sovereign person, the notion of currently accepted fundamental rules specifying a class or line of persons whose word is to constitute a standard of behaviour for the society, i.e. who have the right to legislate". (Hart, op.cit., p.61).
78. "... all that is required from the community to constitute Rex the sovereign are the personal acts of obedience on the part of the population. Each of them needs, for his part, only obey; and, so long as obedience is regularly forthcoming, no one in the community need have or express any views as to whether his own or others' obedience to Rex is in any sense right, proper, or legitimately demanded". (Hart, op.cit., pp.51-52).
79. "If there is to be this right and this presumption at the moment of succession there must, during the reign of the earlier legislator, have been somewhere in the society a general social practice more complex than any that can be described in terms of habit of obedience: there must have been an acceptance of the rule under which the new legislator is entitled to succeed". (Hart, op.cit., p.54)
80. "In order that a supreme government may possess much stability, and that the society wherein it is supreme may enjoy much tranquillity, the persons who take the sovereignty in the way of succession, must take or acquire by a given generic mode, or by given generic modes. Or... they must take by reason of their answering to a given generic description...". (John Austin, op.cit., p.152).
81. "There is no contradiction in saying that people accept certain rules but experience no such feelings of compulsion. What is necessary is that there should be a critical reflective attitude to certain patterns of behaviour as a common standard and that this should display itself in criticism (including self-criticism), demands for conformity, and in acknowledgements that such criticism and demands are justified, all of which find their characteristic expression in the normative terminology of 'ought', 'must', and 'should', 'right' and 'wrong'. These are the crucial features which distinguish social rules from mere group habits". (Hart, op.cit., p.56).
82. "... acknowledgements that obedience is something to which he has a right by virtue of his qualification under a general rule". (Hart, op.cit., p.57).
83. "... acceptance of a rule by a society at one moment does not guarantee its continued existence". (Hart, op.cit., p.58).
84. "... in principle the matter is clear. The statement that a new legislator has a right to legislate pre-supposes the existence, in the social group, of the rule under which he has this right". (Hart, op.cit., p.58).
85. "Even if we concede that a person such as Rex, whose general orders are habitually obeyed, may be called a legislator and his orders laws, habits of obedience to each of a succession of such legislators are not enough to account for the right of a successor to succeed and for the consequent continuity in legislative power. First, because habits are not 'normative': they cannot confer rights or authority on anyone. Secondly, because habits of obedience to one individual cannot, though accepted rules can, refer to a class or line of future successive legislators as well as to the current legislator..." (ibid).
86. "To speak of the populace 'accepting' these rules, in the same way as the members of some small tribe might accept the rule giving authority to its successive chiefs, would involve putting into the heads of ordinary citizens an understanding of constitutional matters which they might not have. We would only require such an understanding of the officials or experts of the system". (Hart, op.cit., p.59).
87. "The ordinary citizen manifests his acceptance largely by acquiescence in the results of these official operations". (Hart, op.cit., p.60).
88. "There are two kinds of kingdom, one of which is a lordship called in Latin dominium regale and the other is called dominium politicum et regale. And they differ in that the first king may rule his people by such laws as he himself makes. And therefore he may set upon them tallages and other impositions, such as he himself wills without their consent. The second King may not rule his people by laws other than those to which they consent. And therefore he may set upon them no impositions without their own consent". (Sir John Fortescue, "Royal and Political Dominium", On the Governance of England, c. 1473, cited in Lively & Lively, Democracy in Britain: A Reader, p 37).
89. "The state of Monarchy is the supremest thing upon earth: for Kings are not only God's lieutenants upon earth, and sit upon God's throne, but even by God himself they are called Gods"(Lively & Lively, op cit pp 38-9
90 "Yet Robert [our most valiant Sovereign, King, and Lord, King Robert], himself, should he turn aside from the task that he has begun, and yield Scotland or us to the English King and people, we should cast out as the enemy of us all, as subverter of our rights and of his own, and should choose another king to defend our freedom: for so long as a hundred of us are left alive, we will yield in no least way to English dominion. We fight not for glory nor for wealth nor honours; but only and alone we fight for freedom, which no good man surrenders but with his life". (Declaration of Arbroath, 1320)
91. "There are two main forms of philosophical arrogance: one is to claim to encapsulate all past thinkers in one's thoughts: the other is to claim to be initiating an entirely new departure". (Ernest Gellner, Words and Things, p.137).
92. "It is impossible to grasp the nature of law if we limit our attention to the single isolated rule. The relations which link together the particular rules of a legal order are also essential to the nature of law". (Hans Kelsen, General Theory of Law and State, p.3).
93. "If law is characterised as 'rules', it must be stressed that legal rules essentially differ from other rules and in particular from those which are presented as laws of nature (in the sense of physics). Whereas laws of nature are statements about the actual course of events, legal rules are prescriptions for the behaviour of men. Laws of nature are rules which describe how natural evens actually occur and why these events occur; that is to say, what are their causes. Rules of law refer only to human behaviour. They state how men ought to behave, and say nothing about the actual behaviour of men and of the causes thereof. In order to prevent misunderstandings (as to the nature of law) it is therefore better in this context not to use the term 'rule', but to characterise law as norms.
Another reason why the designation of law as 'rule' is misleading is that the word 'rule' carries the connotation of something 'general'. A 'rule' does not refer to a single non-recurring event but to a whole class of similar events. The importance of a rule is that a phenomenon of a certain kind occurs - or ought to occur - always, or almost always when conditions of a certain kind are fulfilled. In fact, law is often explained as 'general rules'. Austin draws an explicit distinction between 'laws' and 'particular commands': where a command, he says, 'obliges generally to acts or forbearances of a class, a command is a law or rule. But where it obliges to a specific act or forbearance... a command is occasional or particular'. Having identified 'law' and 'rule, we can, of course, recognise as law only general norms. But there is no doubt that law does not consist of general norms only. Law includes individual norms; i.e. norms which determine the behaviour of one individual in one non-recurring situation and which, therefore, are valid only for one particular case, and may be obeyed or applied only once. Such norms are 'law' because they are parts of the legal order as a whole in exactly the same sense as those general norms on the basis of which they have been created. Examples of such particular norms are the decisions of courts as far as their binding force is limited to the particular case in hand. Suppose that a judge orders a debtor, A, to return $1,000 to his creditor, B. By expressly or tacitly threatening A with a civil sanction in case of non-payment the judge here 'commands' A to pay $1,000 to B. The decision of the judge is a legal norm in the same sense and for the same reasons as the general principle that if someone does not return a loan then a civil sanction ought to be inflicted upon him on the motion of the creditor. The 'binding force' or 'validity' of law is intrinsically related, not to its possibly general character, but only to its character as a norm. Since, by its nature, law is norm, there is no reason why only general norms should be considered law. If, in other respects, individual norms present the essential characteristics of law, they too must be recognised as law". (Hans Kelsen, General Theory of Law and State, pp.37-38).
94. "... the ideas of orders, obedience, habits and threats, do not include, and cannot by their combination yield, the idea of a rule, without which we cannot hope to elucidate even the most elementary forms of law". (Hart, op.cit., p.78).
95. "... in a sense parasitic". (Hart, op.cit., p.79).
96. "... in the combination of these two types of rule there lies what Austin wrongly claimed to have found in the notion of coercive orders, namely, 'the key to the science of jurisprudence'". (ibid).
97. "... their explanatory power in elucidating the concepts that constitute the framework of legal thought". (ibid).
98. "... a new account of law in terms of the interplay of primary and secondary rules". (Hart, op.cit., p.80).
99. "There is a difference, yet to be explained, between the assertion that someone was obliged to do something and the assertion that he had an obligation to do it". (ibid).
100. "The difference between being constrained to do something because of my needs or wishes and being constrained to do it irrespective of them is perhaps most easily discerned in the parallel between being 'obliged' and being 'obligated' to do it. To be, or to feel, obliged to do something is quite different from being, or believing myself to be, obligated to do it. For instance, I am obliged to put my name in my books, since I do not want them to be borrowed and not returned; but I desire to keep them as my own. It makes perfectly good sense to say: 'I had an obligation to tell the truth, but to get out of that scrape I was obliged to lie'. To be obliged to do something means that, to accomplish a given purpose, I have to do something I don't particularly want to do, or dislike doing. To be obligated to do something means to be under necessity of choosing to do something without consulting my desires". (L.W. Beck, Commentary on Kant's Second Critique, p.113).
101. "Some theorists, Austin among them, seeing perhaps the general irrelevance of the person's beliefs, fears, and motives to the question whether he had an obligation to do something, have defined this notion not in terms of these subjective facts, but in terms of the chance or likelihood that the person having the obligation will suffer a punishment or 'evil' ..." (Hart, op.cit., p.81).
102. "... the chance of incurring the evil". (John Austin, op.cit., p.15).
103. "... the smallest chance of ... the smallest evil". (John Austin, op.cit., p.16).
104. "This, in effect, treats statements of obligation not as psychological statements but as predictions or assessments of chances of incurring punishment or 'evil'. To many later theorists this has appeared as a revelation, bringing down to earth an elusive notion and restating it in the same clear, hard, empirical terms as are used in science. It has, indeed, been accepted sometimes as the only alternative to metaphysical conceptions of obligation or duty as invisible objects mysteriously existing 'above' or 'behind' the world of ordinary, observable facts. But there are many reasons for rejecting this interpretation of statements of obligation as predictions, and it is not, in fact, the only alternative to obscure metaphysics". (Hart, op.cit., pp.81-82).
105. "... when physical sanctions are prominent or usual among the forms of pressure, even though these are neither closely defined nor administered by officials but are left to the community at large, we shall be inclined to classify the rules as a primitive or rudimentary form of law". (Hart, op.cit., p.84).
106. "Both [Bentham's and Kelsen's uniformity theses], make the sanction a centrally important element, and both will fail if it is shown that law without sanctions is perfectly conceivable". (Hart, op.cit., p.38).
107. "... the insistence on importance or seriousness of social pressure behind the rules is the primary factor determining whether they are thought of as giving rise to obligations". (Hart, op.cit., p.84).
108. "... thought important because they are believed to be necessary to the maintenance of social life or some highly prized feature of it". (Hart, op.cit., p.85).
109. "... generally recognised that the conduct required by these rules may, while benefiting others, conflict with what the person who owes the duty may wish to do". (ibid).
110. "To feel obliged and to have an obligation are different though frequently concomitant things". (Hart, op. cit., p.86).
111. "The remedy for each of these three main defects in this simplest form of social structure consists in supplementing the primary rules of obligation with secondary rules which are rules of a different kind". (Hart, op. cit., p.91).
112. "... a step from the pre-legal into the legal world... convert the regime of primary rules into what is indisputably a legal system... law may most illuminatingly be characterised as a union of primary rules of obligation with such secondary rules". (ibid).
113. "Introduction of rules which are certainly different from each other, as well as from the primary rules of obligation which they supplement, they have important features in common and are connected in various ways... on a different level from the primary rules, for they are all about such rules: in the sense that while primary rules are concerned with the actions that individuals must or must not do, these secondary rules are all concerned with the primary rules themselves. They specify the ways in which the primary rules may be conclusively ascertained, introduced, eliminated, varied, and the fact of their violation conclusively determined". (Hart, op.cit., pp.91-92).
114. "... any norm of competence can be transcribed as a norm of conduct, whereas the converse does not hold true". (Alf Ross, Directives and Norms, London, 1968, p.120).
115. "By 'norm' we mean that something ought to be or ought to happen, especially that a human being ought to behave in a specific way". (Hans Kelsen, The Pure Theory of Law, p.4).
116. "... a rule for the conclusive identification of the primary rules of obligation". (Hart, op.cit., p.92).
117. "By providing an authoritative mark it introduces, although in embryonic form, the idea of a legal system: for the rules are now not just a discrete unconnected set but are, in a simple way, unified. Further, in the simple operation of identifying a given rule as possessing the required feature of being an item on an authoritative list of rules we have the germ of the idea of legal validity". (Hart, op.cit., p.93).
118. "... as recent theory such as Kelsen's has shown, many of the features which puzzle us in the institutions of contract or property are clarified by thinking of the operations of making a contract or transferring property as the exercise of limited legislative powers by individuals". (Hart, op.cit., p.94).
119. "If we stand back and consider the structure which has resulted from the combination of primary rules of obligation with the secondary rules of recognition, change and adjudication, it is plain that we have here not only the heart of a legal system, but a most powerful tool for the analysis of much that has puzzled both the jurist and the political theorist". (Hart, op.cit., p.95).
120. "The concepts (which bestride both law and political theory) of the state, of authority, and of an official require... analysis...". (ibid).
121. "The union of primary and secondary rules is at the centre of a legal system; but it is not the whole, and as we move away from the centre, we shall have to accommodate... elements of a different character". (Hart, op.cit., p.96).
122. "Hart's concept of a 'rule of recognition' is conceptually too simple to represent the complex and varied law-identifying phenomena operative in modern legal systems". (R.S. Summers, "Notes on criticism in legal philosophy - an introduction", in More Essays in Legal Philosophy, ed. R.S. Summers, Oxford, 1971, p.9).
123. "The existence of this simple form of the rule of recognition will be manifest in the general practice, on the part of officials, or private persons, of identifying the rules by this criterion". (Hart, op.cit., p.98).
124. "... the rule of recognition is not stated, but its existence is shown in the way in which particular rules are identified, either by courts or other officials or private persons or their advisers". (ibid).
125. "... the use of unstated rules of recognition, by courts and others in identifying particular rules of the system is characteristic of the internal point of view". (Hart, op.cit., p.99).
126. "... the statement that a particular rule is valid means that it satisfies all the criteria provided by the rule of recognition". (Hart, op.cit., p.100).
127. "The rule of recognition providing the criteria by which the validity of other rules of the system is assessed is in an important sense, which we shall try to clarify, an ultimate rule: and where, as is usual, there are several criteria ranked in order of relative subordination and primacy one of them is supreme". (Hart, op.cit., p.102).
128. "... a criterion of legal validity or source of law is supreme if rules identified by reference to it are still recognised as rules of the system, even if they conflict with rules identified by reference to the other criteria, whereas rules identified by reference to the latter are not so recognised if they conflict with the rules identified by reference to the supreme criterion". (Hart, op.cit., p.103).
129. "... we are brought to a stop in inquiries concerning validity: ... we have reached a rule [for] which ... there is no rule providing criteria for the assessment of ... legal validity". (Hart, op.cit., p.104).
130. "... when we move from the statement that a particular enactment is valid, to the statement that the rule of recognition of the system is an excellent one and the system based on it is one worthy of support, we have moved from a statement of legal validity to a statement of value". (Hart, op.cit., pp.104-105).
131. "Some writers ... have expressed this by saying that, whereas the legal validity of other rules of the system can be demonstrated by reference to it, its own validity cannot be demonstrated but is 'assumed' or 'postulated' or is a 'hypothesis'. this may, however, be seriously misleading". (Hart, op.cit., p.105).
132. "No ... 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 as appropriate for use in this way". (Hart, op.cit., pp.105-106).
133. "... the essentially factual character". (Hart, op.cit., p.106).
134. "The assertion that it [the Rule of Recognition] exists can only be an external statement of fact ... Its existence is a matter of fact". (Hart, op.cit., p.107).
135. "... we need to remember that the ultimate rule of recognition may be regarded from two points of view: one is expressed in the external statement of fact that the rule exists in the actual practice of the system; the other is expressed in the internal statements of validity made by those who use it in identifying the law". (Hart, op.cit., p.108).
136. "There are ... two minimum conditions necessary and sufficient for the existence of a legal system. On the one hand those rules of behaviour which are valid according to the system's ultimate criteria must be generally obeyed, and, on the other hand, its rules of recognition specifying the criteria of legal validity and its rules of change and adjudication must be effectively accepted as common public standards of official behaviour by its officials. The first condition is the only one which private citizens need satisfy ... The second condition must also be satisfied by the officials of the system". (Hart, op.cit., p.113).
137. "... a healthy society ..." (ibid).
138. "In an extreme case the internal point of view with its characteristic normative use of legal language ... might be confined to the official world. In this more complex system, only officials might accept and use the system's criteria of legal validity. The society in which this was so might be deplorably sheeplike; the sheep might end in the slaughterhouse. But there is little reason for thinking that it could not exist or for denying it the title of a legal system". (Hart, op.cit., p.114).
139. "Nothing can eliminate this duality of a core of certainty and a penumbra of doubt when we are engaged in bringing particular situations under general rules". (Hart, op.cit., p.119).
140. "The vice known to legal theory as formalism or conceptualism consists in an attitude to verbally formulated rules, which both seeks to disguise and to minimise the need for such choice, once the general rule has been laid down". (Hart, op.cit., p.126).
141. "... we should not cherish, even as an ideal, the conception of rule so detailed that the question whether it applied or not to a particular case was always settled in advance, and never involved, at the point of actual application, a fresh choice between open alternatives". (Hart, op.cit., p.125).
142. "Particular fact situations do not await us already marked off from each other, and labelled as instances of the general rule". (Hart, op.cit., p.123).
143. "Canons of 'interpretation' cannot eliminate, though they can diminish these uncertainties; for these canons are themselves general rules for the use of language, and make use of general terms which themselves require interpretation. They cannot, any more than other rules, provide for their own interpretation". (ibid).
144. "... we labour under two connected handicaps ... The first ... is our relative ignorance of fact: the second is our relative indeterminacy of aim". (Hart, op.cit., p.125).
145. "General terms would be useless to us as a medium of communication unless there were such familiar, generally unchallenged cases". (Hart, op.cit., p.123).
146. "It may seem strange that the contention that rules have a central place in the structure of a legal system could ever be seriously doubted". (Hart, op.cit., p.135).
147. "Rule-scepticism has a serious claim ... it amounts to the contention that, so far as the courts are concerned, there is nothing to circumscribe the area of open-texture so that it is false, if not senseless, to regard judges as themselves subject to rules of 'bound' to decide cases as they do". (Hart, op.cit., p.135).
148. "It does not follow from the fact that ... rules have exceptions incapable of exhaustive statement, that in every situation we are left to our discretion ... A rule that ends with the word 'unless ...' is still a rule". (Hart, op.cit., p.136).
150. "... it is ... a necessary condition of a legal system existing, that not every rule is open to doubt on all points". (Hart, op.cit., p.149).
151. "Legal theory ... is apt either to ignore or to exaggerate the indeterminacies of legal rules". (Hart, op.cit., p.127).
152. "Formalism and rule- scepticism are the Scylla and Charybdis of juristic theory; they are great exaggerations, salutary where they correct each other, and the truth lies between them". (Hart, op.cit., p.144).
153 "... so many of the distinctive operations of the law, and so many of the ideas which constitute the framework of legal thought, require for their elucidation reference to one or both of these two types of rule, that their union may be justly regarded as the 'essence' of law, though they may not always be found together wherever the word 'law' is correctly used. Our justification for assigning to the union of primary and secondary rules this central place is not that they will do there the work of a dictionary, but that they have great explanatory power". (Hart, op.cit., p.151).
154. "The connexion between ... justice and the very notion of proceeding by rule is obviously very close. Indeed, it might be said that to apply a lw justly to different cases is simply to take seriously the assertion that what is to be applied in different cases is the same general rule, without prejudice, interest or caprice". (Hart, op.cit., pp.156-157).
155. "... the vague sense that the difference between law and morals is connected with a contrast between the 'internality' of the one and the 'externality' of the other is too recurrent a theme in speculation about law and morals to be altogether baseless". (Hart, op.cit., p.169).
156. "It is important to remember that morality has its private aspect, shown in the individual's recognition of certain ideals which he need not either share with others or regard as a source of criticism of others, still less of society as a whole". (Hart, op.cit., p.179).
157. "... there exist side by side with the structure of mandatory moral obligations and duties and the relatively clear rules that define them, certain moral ideals. The realization of these is not taken, as duty is, as a matter of course, but as an achievement deserving praise. The hero and the saint are extreme types who do more than their duty". (Hart, op.cit., pp.177-178).
158. "Once the state has been founded, there can no longer be any heroes". (Hegel, Philosophy of Right, Trans. T.M. Knox, Oxford, 1973, p.245).
159. "Importance ... moral standards are maintained against the drive of strong passions which they restrict, and at the cost of sacrificing considerable personal interest; secondly, in the serious forms of social pressure exerted not only to obtain conformity in individual cases, but to secure that moral standards are taught or communicated as a matter of course to all in society; thirdly, in the general recognition that, if moral standards were not generally accepted, far-reaching and distasteful changes in the life of individuals would occur". (Hart, op.cit., p.169).
160. "... rules of deportment, manners, dress, and some, though not all, rules of law, occupy a relatively low place in the scale of serious importance. They may be tiresome to follow, but they do not demand great sacrifice". (ibid).
161. "Legal rules ... may correspond with moral rules in the sense of requiring or forbidding the same behaviour. Those that do so are not doubt felt to be as important as their moral counterparts. Yet importance is not essential to the status of all legal rules as it is to that of morals" ... A legal rule may be thought quite unimportant to maintain" (Hart, op.cit., p.170).
162. "But for the moment the possibility of drawing the line between law and morals need not detain us. What is important is that the insistence on importance or seriousness of social pressure behind the rules is the primary factor determining whether they are thought of as giving rise to obligations". (Hart, op.cit., p.84).
163. "With morals ... they typical form of pressure consists in appeals to the respect for the rules, as things important in themselves ... so moral pressure is characteristically ... exerted not by threats or by appeals to fear or interest, but reminders of the moral character of the action contemplated". (Hart, op.cit., p.175).
164. "The fourfold criteria which in the last section we used to distinguish it from other forms of social standard or rule (importance, immunity from deliberate change, the voluntary character of moral offences, and the special form of moral pressure) are in a sense formal criteria. They make no direct reference to any necessary content which rules or standards must have in order to be moral, nor even to any purpose which they must serve in social life". (Hart, op.cit., p.176).
165. "Many moralists ... would stipulate that nothing is to be recognised as part of morality unless it could survive rational criticism in terms of human interests and so be shown to advance them ... in the society whose rules they are. Some might even go further, and refuse to recognise as moral any principle or rule of conduct, unless the benefits of the forbearances and actions it required were extended, beyond the boundaries of a particular society, to all who were themselves willing and able to respect such rules". (Hart, op.cit., p.177).
166. "... it would be absurd to deny the title of morality to emphatic social vetoes ... indeed, sexual morality is perhaps the most prominent aspect of what plain men think morality to be". (Hart, op.cit., p.170).
167. "Some [rules, e.g. "those concerning sexual behaviour" (p.170)] ... might be condemned as irrational or unenlightened or even barbarous". (Hart, op.cit., p.177).
168. "... represents a remarkable effort on the part of an avowed positivist to recognise the merits of that ancient and venerable notion". (D'Entreves, Natural Law, 2nd ed., London, 1970, p.185).
169. "... to recognise a core of good sense ... is to show an understanding that goes beyond tolerance". (D'Entreves, op.cit., pp.185-186).
170. "The idea of a union of primary and secondary rules ... may be regarded as a mean between juristic extremes ... legal theory has sought they key to the understanding if law sometimes in the simple idea of an order backed by threats and sometimes in the complex idea of morality". (Hart, op.cit., p.208).
171. "... in the modest aim of survival the central indisputable element which gives empirical good sense to the terminology of Natural Law". (Hart, op.cit., p.187).
172 "Some branches of that tradition are founded in the belief that reflection upon human nature - and perhaps also upon the Divine wisdom - reveals to us various forms of the good which must rationally be accepted as goals of human striving and endeavour. Those principles whose adoption and pursuance would promote the realization of these basic forms of good accordingly form a model or a set of basic prescriptions for human conventions, laws and forms of government. Another branch of that tradition . Giving yet greater primacy to the reasoning faculty, asserts that there simply are basic principles discoverable by reason (aided perhaps by Divine revelation) which have the status of moral axioms on which the right rules for social conduct are grounded. A third branch, associated particularly with the names of Thomas Hobbes and David Hume rejects much of the 'rationalism' seemingly implicit in the former two. It is their view, more or less in the form suggested by Hume, which Hart adopts" (Neil MacCormick, H L A Hart, Edward Arnold, 1981, pp 92-93).
173 "The story Hume and Hobbes have to tell ... Human being have a certain physical and emotional make-up , together with a certain rational capacity for planning and forethought and understanding of the causal sequences which they discover in the course of nature. They are also social beings whose survival depends on their co-operating successfully with others of their own kind. The world which they inhabit does not guarantee their survival without effort, indeed co-operative effort. They have, as part of their emotional make-up, a powerful drive for survival of themselves individually and also for securing the survival at least of their own families and close associates. Examination of the actual mode of organization of human societies reveals certain standard or common features therein which we can infer to be essential conditions of individual and collective survival given our awareness of the qualities of human beings and the physical character of the planet they inhabit" (MacCormick, op cit p 93).
174. "... most men most of the time wish to continue in existence". (ibid).
175. "... our concern is with social arrangements for continued existence, not with those of a suicide club". (Hart, op.cit., p.188).
176. "... men are not devils, neither are they angels". (Hart, op.cit., p.191).
177. " a noticeable omission" (MacCormick, op cit p 98)
178. "What about Sex?" ( MacCormick, op cit p 98).
179. "Sex, in a word, is the remarkable omission from Hart's list of the basic features of human nature; sex which in almost all of us is at times an urge whose promptings far transcend the limits of our strength of will guided even by a supremely rational understanding of long term, or even immediate, self-interest; sex which is a source of violent and ungovernable passion, leading men and women even too the launching of a thousand ships and the destruction of Troy, and other like extravagances" (MacCormick op cit p 98).
180. "the regime for a whole society cannot be one of monastic chastity. Sex, after all, is not only for fun" (MacCormick op cit pp 98-99)
181. "... in much modern usage, including legal usage, 'morality' signifies almost exclusively sexual morality and the requirements of decency, whereas, in philosophical usage, sexual morality (including decency) is merely one small portion of the requirements of practical reasonableness" (John Finnis, Natural Law and Natural Rights, Claredon Press, Oxford, p 215).
182. "Consider, now, the concept of public morality, in its oddly restricted, sexual sense. Apart from such special arrangements as marriage, no one's human rights include a right that other men or women should not conduct themselves in certain ways. But the great majority of any community that is reproducing itself will spend more than a quarter of their lives as children and then more than another quarter as parents bringing up children - in all, more than half their lifetimes. Now if it is the case that sexuality is a powerful force which only with some difficulty, and always precariously, can be integrated with other aspects of human personality and well-being - so that it enhances rather than destroys friendship and the care of children for example - and if it is further the case that human sexual psychology has a bias towards regarding other persons as bodily objects of desire and potential sexual release and gratification, and as mere items in an erotically flavoured classification (e.g. 'women'), rather than as full persons with personal and individual sensitivities, restraints, and life-plans, then there is reason for fostering a milieu in which children can be brought up (and parents assisted rather than hindered in bringing them up) so that they are relatively free from inward subjection to an egoistic, impulsive, or depersonalized sexuality ... that this is an aspect of the common good, and a fit matter for laws which limit the boundless exercise of certain rights, can hardly be doubted by anyone who attends to the facts of human psychology as they bear on the realization of basic human goods" (Finnis, op cit pp 216-217).
183. "that sexual unions and the related business of rearing and caring for and educating children in families are among the matters which it is important for any human society to regulate in some way" (MacCormick, op cit p 99)
184. "... the rules must contain in some form restrictions on the free use of violence, theft and deception to which human beings are tempted but which they must, in general, repress if they are to coexist in close proximity to each other". (Hart, op.cit., p.89).
185. "'Sanctions' are ...required not as the normal motive for obedience, but as a guarantee that those who would voluntarily obey shall not be sacrificed to those who would not. To obey, without this, would be to risk going to the wall. Given this standing danger, what reason demands is voluntary co-operation in a coercive system". (Hart, op.cit., p.193).
186. "... for the adequate description not only of law but of many other social institutions, a place must be reserved, beside definitions and ordinary statements of fact, for a third category of statements: those the truth of which is contingent on human beings and the world they live in retaining the salient characteristics which they have". (Hart, op.cit., p.195).
187. "... there are two widespread human characteristics which are responsible for the fact that the regulations of civilisation can only be maintained by a certain degree of coercion - namely, that men are not spontaneously fond of work and that arguments are of no avail against their passions". (Sigmund Freud, The Future of an Illusion, London, 1970, p.4).
188. "... it is plain that neither the law nor the accepted morality of societies needs extend their minimal protections and benefits to all within their scope, and often have not done so". (Hart, op.cit., p.196).
189. "... a society to be viable must offer some of its members a system of mutual forbearances, it need not, unfortunately, offer them to all, It is true ... that if a system of rules is to be imposed on any, there must be a sufficient number who accept it voluntarily". (ibid).
190. "So long as human beings can gain sufficient cooperation from some to enable them to dominate others, they will use the forms of law as one of their instruments. Wicked men will enact wicked rules which others will enforce". (Hart, op.cit., p.205).
191. "For those thus oppressed there may be nothing in the system to command their loyalty but only things to fear. They are its victims not its beneficiaries". (Hart, op.cit., p.197).
192 "... Hart's 'minimum content of natural law' is itself very far from being a guarantee of a just or a good society, far less a set of principles settled by right reason for securing justice among men"( MacCormick, op cit p 97)
193. "If we are to make a reasoned choice between these concepts, it must be because one is superior to the other in the way in which it will assist our theoretical inquiries, or advance and clarify our moral deliberations, or both". (Hart, op.cit., pp.204-205).
194. "... we cannot grapple adequately with this issue [i.e. positive law versus natural law conceptions] if we see it as one concerning the proprieties of linguistic usage". (Hart, op.cit., p.204).
195. "... though it is consistent with the usage of the last 150 years to use the expression 'law' here, the absence of an international legislature, courts with compulsory jurisdiction, and centrally organised sanctions have inspired misgivings, at any rate in the breasts of legal theorists". (Hart, op.cit., p.209).
196. "... we shall ask whether the common wider usage that speaks of 'international law' is likely to obstruct any practical or theoretical aim". (ibid).
197. "... making explicit and examining the principles that have in fact guided the existing usage". (Hart, op.cit., p.210).
198. "... whereas the allotment of proper names rests only on and ad hoc convention, the extension of the general terms of any serious discipline is never without its principle or rationale though it may not be obvious what that is". (ibid).
199. "... what these rules require is thought and spoken of as obligatory; there is general pressure for conformity to the rules; claims and admissions are based on them and their breach is held to justify not only insistent demands for compensation, but reprisals and countermeasures. When the rules are disregarded, it is not on the footing that they are not binding; instead efforts are made to conceal the facts. It may of course be said that such rules are efficacious only so far as they concern issues over which states are unwilling to fight". (Hart, op.cit., pp.214-215).
200. "It is possible to imagine many different forms of international authority and correspondingly many different limitations on the independence of states". (Hart, op.cit., p.217).
201. "Some measure of autonomy is imported, as we have seen, by the very meaning of the word state but the contention that this 'must' be unlimited or 'can' only be limited by certain types of obligation is at best the assertion of a claim that states ought to be free of all other restraints, and at worst is an unreasoned dogma". (Hart, op.cit., pp.217-218).
202. "The rules of international law are indeed vague and conflicting on many points, so that doubt about the area of independence left to states is far greater than that concerning the extent of a citizen's freedom under municipal law". (Hart, op.cit., p.218).
203. "... a morality cannot (logically) contain rules which are generally held by those who subscribe to them to be in no way preferable to alternatives and of no intrinsic importance. Law, however, though it also contains much that is of moral importance, can and does contain just such rules, and the arbitrary distinctions, formalities, and highly specific detail which would be most difficult to understand as part of morality, are consequently natural and easily comprehensible features of law. For one of the typical functions of law, unlike morality, is to introduce just these elements in order to maximise certainty and predictability and to facilitate the proof or assessments of claims". (Hart, op.cit., p.224).
204. "Of course not all the rules of international law are of this formal, or arbitrary, or morally neutral kind. The point is only that legal rules can and moral rules cannot be of this kind". (ibid).
205 "The proof that 'binding' rules in any society exist, is simply that they are thought of, spoken of, and function as such. What more is required by way of 'foundations' and why, if more is required, must it be a foundation of moral obligation? It is, of course, true that rules could not exist or function in the relations between states unless a preponderant majority accepted the rules and voluntarily co-operated in maintaining them. It is true also that the pressure exercised on those who break or threaten to break the rules is often relatively weak, and has usually been decentralised or unorganised. But as in the case of individuals, who voluntarily accept the far more strongly coercive system of municipal law, the motives for voluntarily supporting such a system may be extremely diverse". (Hart, op.cit., p.226).
206. "... why should we make this a priori assumption ... and so prejudge the actual character of the rules of international law?" (Hart, op.cit., p.228).
207. "Yet if rules are in fact accepted as standards of conduct, and supported with appropriate forms of social pressure distinctive of obligatory rules, nothing more is required to show that they are binding rules, even though, in this simple form of social structure, we have not something which we do have in municipal law: namely a way of demonstrating the validity of individual rules by reference to some ultimate rule of the system". (Hart, op.cit., p.229).
208 "Enacted legal rules by contrast, though they are identifiable as valid legal rules by the criteria provided by the rule of recognition, may exist as legal rules from the moment of their enactment before any occasion for their practice has arisen and the practice theory is not applicable to them" (Hart Concept, 2nd edn., p 256)
209. "Consider the situation of the spectator of a cricket match, ignorant of the game, and trying to work out what rules the players are following. He will find, for instance, that when six balls have been bowled from one end, the players regularly move round and six balls are then bowled from the other end; deviations from this, he will observe, are adversely criticised. He will probably find also that, when a fast bowler is replaced by a slow one, some persons who were previously stationed quite close to the batsman are moved further away, some, probably, a lot further away; and he will find that, if this is not done, there is adverse criticism. But if he concludes that, in so acting, the players are following rules, he will of course be right in the first case, and wrong in the second. There is no rule that a slow bowler should not operate with exactly the same field setting as the fast one; this is indeed scarcely ever done, and it would nearly always be regarded as wrong to do it, but that is because, quite independently of any rules, it is something which there is nearly always good reason not to do". (G.J. Warnock, The Object of Morality, Oxford, 1971, pp.45-46).
210. "... I should like to draw attention to one further kind of statement which is of great importance to our understanding of discourse about law as well as normative discourse in other contexts". (Joseph Raz, Practical Reason and Norms, p.172).
211. "The analyses to be rejected assimilate the statements under consideration into one or other of the basic types of statement". (Raz, op.cit., p.173).
212. "The beginning of wisdom is to allow that such statements are not reducible to one or the other of the basic types". (Raz, op.cit., p.175).
213. "When giving legal advice a solicitor or any other person is stating what is the case from the legal point of view. He may do so because he believes that the man he is advising endorses this point of view completely or in part. But sometimes he makes no such assumption. He may know that the man he is advising is not law-abiding, that his interest is merely to find out what view the police or the courts are bound to take of his behaviour. A law lecturer or legal writer normally does the same. He states what is the case from the legal point of view without normally making any specific assumptions about the reasons which may make his audience interested in his lecture or book - they may just be interested in the information (in order to pass an examination or for any one of a variety of reasons).
A barrister arguing a case before a court may do no more. He may simply state what is the case according to law in the knowledge that the judges hold themselves bound to act according to law. Naturally a barrister, a solicitor, a lecturer or any other person talking about the law may ... state what reasons there are on account of the law. But it is important to see that they may not do this. They may merely state what ought to be done according to the law". (Raz, op.cit., pp.176-177).
214. "There are always people who accept the point of view and want to know what ought to be done according to it in order to know what they ought to do". (Raz, op.cit., p.177).
215. "... even people who do not endorse them have a practical interest in what is required by law. this leads them to make normative statements from a point of view which they do not necessarily accept as valid". (ibid).
216 "The thought that Einstein had had in his teens was this: 'What would the world look like if I rode on a beam of light?' ... The answer to the question is full of paradox, and that makes it hard. And yet, as with all paradox, the hardest part is not to answer but to conceive the question". (Jacob Brownowski, The Ascent of Man, London 1973, p 247)
217. "... the enterprise of subjecting human conduct to the governance of rules". (Fuller, The Morality of Law, Revised Ed., 1970, pp.96, 106, 122, 130).
218. "Law has to do with the governance of human conduct by rules". (Fuller, op.cit., p.53).
219. "To embark on the enterprise of subjecting human conduct to the governance of rules involves of necessity a commitment to the view that man is, or can become, a responsible agent, capable of understanding and following rules, and answerable for his defaults". (Fuller, op.cit., p.186).
220. "If I were asked, then, to discern one central indisputable principle of what may be called substantive natural law - Natural Law with capital letters - I would find it in the injunction: Open up, maintain, and preserve the integrity of the channels of communication by which men convey to one another what they perceive, feel and desire". (Fuller, op.cit., p.186).
221. "... in nearly all societies men perceive the need for subjecting certain kinds of human conduct to the explicit control of rules. When they embark on the enterprise of accomplishing this subjection, they come to see that this enterprise contains a certain inner logic of its own, that it imposes demands that must be met (sometimes with considerable inconvenience) if its objectives are to be attained. It is because men generally in some measure perceive these demands and respect them, that legal systems display a certain likeness in societies otherwise quite diverse. It is, then, precisely because law is a purposeful enterprise that it displays structural constancies which the legal theorist can discover and treat as uniformities in the factually given" . (Fuller, op.cit., pp.151-151).
222. ODE TO FULLER - EIGHT WAYS TO FAIL
The King of any country
Will fail to make 'good' law
If his putative enactments
Are marred by one such flaw:-
Be he completely silent
Or loud, but most unclear
In either case we have to say,
There is no law made here.
Should he keep his laws a secret
Or publish laws absurd
Require impossible actions
Or go against his word,
Or change his laws too frequently
Or pass backward-looking laws
The subject knows not what to do
And the sovereign's laws are flaws. (Tur, 1974.)
223. "Some critics who have found this defect in my work have conceived of it as a more or less isolated fault which I could repair simply by including legal principles along with legal rules as components of a legal system, and they have thought that could do this without abandoning or seriously modifying any of the main themes of the book" (Hart, Postscript, p. 259)
224 "... I certainly did not intend in my use of the word 'rule' to claim that legal systems comprise only 'all-or-nothing' or near-conclusive rules" (Hart, Postscript p 263).
225 "I did not intend, in rejecting the idea that law is a system of rules, to replace that idea with the theory that law is a system of rules and principles. There is no such thing as 'the law' as a collection of discrete propositions, each with its own canonical form. People have legal rights, and principles of political morality figure, in ways I have tried to describe, in deciding what rights they have" (Dworkin, Taking Rights Seriously, 3rd impression, 1981 with a "Reply to Critics", p 344)
226. "... the idea that the common law is best understood as a system of customary law, that is, as a body of traditional ideas received within a caste of experts". (A.W.B. Simpson, "The Common Law and Legal Theory" in Oxford Essays in Jurisprudence, Second Series, Oxford 1973, ed. A.W.B. Simpson, pp.77-99, p.80).
227. "... a dogma ... that all law is positive law". (Simpson, op.cit., p.80).
228. "... viewing all law in terms of a model of statute law". (ibid).
229. "... law as a sort of code" (Simpson, op.cit., p.81).
230. "... all laws must have an author ... there must be some test or criterion for identifying the lawmaker of lawmakers ... all must originate in legislation or some law-creating act ... law so conceived will appear as the product of acts of will ... it cannot be a necessary characteristic of law that it should have a particular content ... what has been laid down, conceived as a code, is exhaustive of the law of any given time - the 'school-rules concept' of law". (Simpson, op.cit., p.82).
231. "As applied to the common law such weak versions of positivism could in principle no doubt cater for the possibility that it consists of rules which are not necessarily of legislative origin, nobody having ever laid them down". (Simpson, op.cit., p.83).
232. "... there can be no law without a legislative act". (Austin, Lectures, 5th ed., 1855, ii, 216).
233. "[the common law] ... a miraculous something made by nobody, existing, I suppose, from eternity and merely declared from time to time by the judges". (Austin, op.cit., p.655).
235. "... to express an authoritative opinion is not the same thing as to legislate". (Simpson, op.cit., p.86).
236. "There exists no context in which a judicial statement to the effect that this or that is the law confers the status of law on the words uttered, and it is merely misleading to speak of judicial legislation". (ibid).
237. "... it is all a very theological world, with mysteries similar to those that surround the doctrine of papal infallibility ... all is reminiscent of the smile on the face of the Cheshire cat". (Simpson, op.cit., p.87).
238. "[The common law] ... professes ... to develop and apply principles that have never been committed to any authentic form of words". (Pollock, A First Book of Jurisprudence, 3rd ed., 1911, p.249).
239. "[The common law] - a fiction from beginning to end ... a mischievous delusion". (Bentham, Collected Works, IV, 483).
240. "In these two words [common law] you have a name pretended to be the name of a really existent object:- look for it till doomsday, no such object will you find". (ibid).
241. "As a system of general rules, the common law is a thing merely imaginary". (Bentham, A Comment on the Commentaries 1928, ed. Everett, p.125).
242. "... power everywhere arbitrary". (Bentham, Collected Works, IV, 460).
243. "... the result of the English system of precedent has been to produce, by its use, a body of rules of which a vast number, of both major and minor importance, are as determinate as any statutory rule. They can now only altered by statute". (Hart, The Concept of Law, p.132).
244. "The point about the common law is not that everything is always in the melting-pot, but that you never quite know what will go in next". (Simpson, op.cit., p.91).
245. "... the traditional notion of the common law as custom". (ibid).
246. "... the general customs or the common law properly so called". (Hale, The History of the Common Law, 2nd ed., 1716, p.22).
247. "... they are grown into use, and have acquired their binding power and force of laws by a long and immemorial usage, and by the strength of custom and reception in the Kingdom". (Hale, op.cit., p.23).
248. "Formulations of the Common Law are to be conceived of as similar to grammarians' rules, which both describe linguistic practices and attempt to systematise and order them; such rules serve as guides to proper practice since the proper practice is in part the normal practice; such formulations are inherently corrigible.." (Simpson, op.cit., p.94).
249. "Now a customary system of law can function only if it can preserve a considerable measure of continuity and cohesion, and it can do this only if mechanisms exist for the transmission of traditional ideas and the encouragement of orthodoxy. there must exist within the group - particularly amongst its most powerful members -strong pressures against innovation; young members of the group must be thoroughly indoctrinated before they achieve any position of influence, and anything more than the most modest originality of thought treated as heresy". (Simpson, op.cit., p.95).
250. "To argue that this or that is the correct view, as academics, judges and counsel do is to participate in the system, not simply to study it scientifically". (Simpson, op.cit., p.97).
251. "... the common law is more like a muddle than a system". (Simpson, op.cit., p.99).
252. "The systematization of the common law ... is surely a programme, or an ideal, and not a description of the status quo". (ibid).
253. "It is the ideal of the expositor of the law, grappling with the untidy shambles of the law reports, the product of the common law mind which is repelled by brevity, lucidity and system ... it is, I suspect, a rather futile ideal; the only effective technique for reducing the common law to a set of rules is codification, coupled of course with a deliberate reduction in the status of the judiciary and some sort of ban on law reporting". (ibid).
254. "Here we shall take Legal Positivism to mean the simple contention that it is in no sense a necessary truth that laws reproduce or satisfy certain demands of morality, though in fact they have often done so" (Hart, op cit pp.181-2).
255. "A jurisprudential theory is acceptable only if its tests for identifying the content of the law and determining its existence depend exclusively on the facts of human behaviour capable of being described in value-neutral terms and applied without resort to moral argument". (Raz, The Authority of Law 39-40).
256. "... the rule of recognition may incorporate as criteria of legal validity conformity with moral principles or substantive values ... such as the Sixteenth or Nineteenth Amendments of the United States Constitution"" (Hart, Postscript, p 250).
257. "...I expressly state both in this book (p. 72) and in my earlier article on 'Positivism and the Separation of Law and Morals' [71 Harvard Law Review 598 (1958, reprinted in Hart, Essays on Jurisprudence and Philosophy (see especially pp 54-5)] that in some systems of law, as in the United States, the ultimate criteria of legal validity might explicitly incorporate besides pedigree, principles of justice or substantive moral values, and these may form the content of legal constitutional restraints" (Hart, Postscript, p 247).
258. "... a misunderstanding of the function of the rule. It [the criticism wrongly] assumes that the rule is meant to determine completely the legal result in particular cases ..." (Hart, Postscript, p 258).
259 "Nothing can eliminate this duality of a core of certainty and a penumbra of doubt ... [which] imparts to all rules a fringe of vagueness or 'open texture', and this may affect the rule of recognition ... as much as a particular statute" (Hart, op cit pp 119-120).
260. "... we are in the area of open texture of the system's most fundamental rule" (Hart, op cit, p 147).
261. "Suppose further that it is argued that in virtue of this ... moral considerations have become part of the law... (and law is never unsettled unless morality is). This contention runs directly counter to the strong thesis. If it is accepted, the determination of what is the law in certain cases turns on moral considerations, since one has to resort to moral arguments to identify the law. To conform with the strong thesis we will have to say that while the rule referring to morality is indeed the law (it is determined by its sources) the morality to which it refers is not thereby incorporated into law" (Raz, The Authority of Law, pp 45-46).
262. "... some non-source-based moral principles are part of almost every legal system, since most legal systems require judges to apply moral considerations on various occasions" (Raz, ibid.).
263. "The weak thesis, though true, is insufficient to characterize legal positivism. It is compatible with (a) Sometimes the identification of some laws turn upon moral argument, but also with (b) in all legal systems the identification of some laws turns on moral argument. The first view is on the borderline of positivism and may or may not be thought consistent with it. But whereas the first view depends on the contingent existence of source-based law making moral considerations into the criteria of validity in certain cases ... the second view asserts a conceptual necessity of law by moral argument and is clearly on the natural law side of the historical positivist/natural law divide". (Raz, op cit., p 47).
264. "If a legal question is not answered by standards deriving from legal sources then it lacks a legal answer" Raz, op cit p 50)
265. "...helps to identify a basic underlying function of the law : to provide publicly ascertainable standards by which members of the society are held to be bound so that they cannot excuse non-conformity by challenging the justification of the standard ... standards which are ... binding beyond moral argument"(Raz, op cit, pp 51-52).
266. "...a kind of human institution which is of decisive importance to the regulation if social life". (Raz, op cit, p 52).
267. "Charter societies" (Waluchow, Inclusive Legal Positivism, pp 95-8; 102, 114-7, 122, 134-5, 139-65, 223, 227-9, 262, 267).
268. "... in which the accepted tests for legal validity do appear to include a moral dimension" (Waluchow, op cit p 102).
269. "People are prepared to accept the authority of others, but only on terms which recognize its reasonable and rightful limitation" (Waluchow, op cit, p 98).
270. "A system of law sufficiently open to moral argument is more likely to be morally acceptable and thus capable of serving the cause of peace and order" (Summers, Lon L Fuller, p. 29).
271. "Irrespective of whether the focus is on private or on public law, the susceptibility of regular legal norms to override generates a problem for the Hartian construct. Either the overriding elements are "law" or they are not. If they are "law", they must be identified by the rule of recognition as such or it must be candidly admitted that non-legal materials not only feature in legal arguments but sometimes have greater dispositive weight than do legal materials. It then follows that the rule of recognition must either strive for greater and greater breadth in order to include all possible sources of override or that the rule of recognition must be understood as identifying some but nor all relevant legal materials. But neither an over-inclusive nor an under-inclusive rule of recognition will convince critics of positivism in that, if over-broad, the separability of law and morals thesis is undermined and, if too narrow, there is a lack of descriptive fit with the linguistic practices of the community". (R H S Tur "Rule of Recognition" in The New Palsgrave Dictionary of Economics and the Law Vol 3 (Macmillan, London, 1998), pp 386 - 389)
273. "My aim in this book was to provide a theory of what law is which is both general and descriptive. It is general in the sense that it is not tied to any particular legal system or legal culture ... [and] My account is descriptive in that it is morally neutral and has no justificatory aims ..." (Hart, Postscript, p 239- 240)
274. "... it is a radically different enterprise from Dworkin's conception of legal theory (or 'jurisprudence' as he often terms it) as in part evaluative and justificatory and as 'addressed to a particular legal culture' [Law's Empire, p 102] which is usually the theorist's own and in Dworkin's case is that of Anglo-American law" (Hart, Postscript, p 240).
275. "Jurisprudence is the general part of adjudication, silent prologue to any decision at law" (Dworkin. Law's Empire, p 90).
276. "It is not at all obvious why there should be or indeed could be any significant conflict between enterprises so different as my own and Dworkin's conceptions of legal theory" (Hart, Postscript, p 241).
277. "exclusionary reasons" (Raz, Practical Reasons and Norms pp 37-45, 47f., 74, 89, 181f.)
278. "An exclusionary reason is a second order reason to refrain from acting for a reason" (Raz, op cit, p 39).
279. "... a different way of assessing what ought to be done" " (Raz, op cit, p 45).
280. "Having a rule is like deciding in advance what to do" (Raz, op cit, p 73).
281. "Buried in the idea of command there are ... elements which are crucial to the understanding of law" (Hart, Essays on Bentham, Ch X "Commands and Authoritative Reasons" p 268).
282. "peremptory and content-independent ... reasons for action" (Hart, Essays on Bentham, Ch X "Commands and Authoritative Reasons" p 255).
283. "... have finally settled the issue concerning the relationship of law and morals" (Hart, Essays on Bentham, Ch X "Commands and Authoritative Reasons" p 262).
284. "... while we are considering whether there should be such and such an obligation, we remain at a purely deliberative phase of practical discourse. A characteristic of legislative and judicial processes however is that they provide for a transition from "deliberative" to "executive" stages. Once an authoritative decision is taken that such and such is (or is not) obligatory, then pro loco et tempore, further deliberation is excluded or overridden from having direct practical bearing. Characteristically, the appeal to law, to legal rights or duties, is an appeal to that which has been so decided or settled. Of course, there may still be dispute or deliberation as to the proper interpretation or application of what has been settled and a variety of reasons may be canvassed for or against one or another interpretation (reasons of the same kind as must come into the account where there is an absence of settled law relevant to the problem within an established jurisdiction) . But there is a significant distinction within our practical reasoning as between what has already been decided and what reasons there are for deciding one way or the other points as yet unsettled. Whether or not this argument has sufficient power to sustain the traditional positivistic thesis as to the conceptual independence of law from morality, it is unquestionably the best defence yet offered for that thesis." (MacCormick, "Contemporary Legal Philosophy: The Rediscovery of Practical Reason" (10 Journal of Law and Society 1-15 (1983)).
285. "I see no reason to accept either this sharp contrast between legal principles and legal rules, or the view that if a valid rule is applicable to a given case it must, unlike a principle, always determine the outcome of the case. There is no reason why a legal system should not recognize that a valid rule determines a result in cases to which it is applicable, except where another rule, judged to he more important, is also applicable to the same case. So a rule which is defeated in competition with a more important rule in a given case may, like a principle, survive to determine the outcome in other cases where it is judged to he more important than another competing rule" (Hart, Postscript, pp 261-262)
286. "...must be effectively accepted as common public standards of official behaviour by ... officials" (Hart, op cit p 113).
287. "the proper way of disposing of doubts as to the existence of the rule ... [and] ... for conclusive identification of the primary rules of obligation" (Hart, op cit p 2)
288. "Rules of recognition do not provide the answer but principles of acceptance do" (Kadish and Kadish, Discretion to Disobey, 1973 p 192).