Hart's Concept of Law Lecture One 2001
A. INTRODUCTION: In the course of these lectures we shall be examining, in some detail, a work that is widely regarded as the leading contribution to jurisprudence produced in Britain in the 20th century. The editors' note to the second edition commences with the observation that 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" and comments on the work's "enormous impact". Stephen Guests's comment is typical 2 "Hart's theory of legal positivism has a long and distinguished history. It is not merely that it has withstood serious and sustained attacks from different quarters but it appears to have been accepted by large numbers of lawyers, judges included, in the United Kingdom, and in various jurisdictions of the new and old commonwealth" (Stephen Guest, Positivism Today, p 29)
Such opinions of themselves may justify treating the work as an appropriate starting point in jurisprudence but the study of such a work is not simply an end in itself. Rather, it is an exercise in Legal Theory. As such an appreciation of the book should redound upon one's understanding of the law, One test of a legal theory is that it should advance one's understanding of the law. If it does not, so much the worse for the theory. So what is legal theory ? Here is one answer: 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). Thus we encounter The Jurist's Question - "What is Law?" And we shall follow Hart's answer to this question and his analysis of the salient features of law, and of the essential constituent elements of a legal system.
Legal theory is characteristically described as being concerned with understanding law; or understanding what law is; or understanding the law; or knowing what the law is. And this offers one test of a good theory: A good theory of law is one which helps us understand the law. But such a criterion requires further refinement. What do we mean by "understanding" in general and by "understanding law" in particular? Let me rehearse some of the possibilities.
First, "to understand" is frequently used to indicate a knowledge of causal relationships. To understand law on this account would be to know or grasp its causes, how it came to be, what was its genesis, what conditions must obtain in order for there to be law; and what specific conditions generate which specific laws. On this view, a social or legal theory would be a body of empirical generalisations - often misleadingly called "laws" - as in the phrase "laws of nature" - purporting to state causal relationships. Such a theory might pursue the so-called "laws of social causation"[Spencer, Compte, Hegal Marx, Unger, Fukyama]. It would purport to explain the existence of past laws as effects of certain conditions; and human behaviour might be explained as the effects of such laws; it would seek, too, perhaps chiefly, to predict future laws on the basis of conditions thought likely or certain to obtain in the future; it would seek to predict human responses to such laws. Such an approach approximates to one conception of the sociology of law.
Well, that is not what I think is meant by "understanding law" in the context of legal theory. I even doubt, for what seem to me good and sufficient theoretical reasons, that such a causal, predictive theory of law is even possible. But even if such a theory is possible, no actual theory of society or law has attempted the detailed predictions which alone would make them testable. It is one thing to suggest (with Marx or Posner) that there is a connection between economics and law, but quite another to suggest that a free market economy is necessarily linked with laws regulating inheritance; and yet another, perhaps utterly absurd, to move from the market economy to the detailed rules of successions concerning, say holograph wills in Scotland, or the precise number of witness required to validate a will in England. Yet as lawyers we are interested not merely and perhaps not chiefly in gneral correlations of social phenomena, such as level of unemployment and the incidence of crime, but also, and perhaps exclusively in the detailed content of the law of this or that community. But a causal methodology seems unable to lead us to knowledge of that content. Thus understanding in the causal sense is not, I think, what is meant by "understanding law", in the sense that phrase is used by legal theorists.
Secondly (a), Another meaning of "understanding" involves relating the hitherto unknown to the known. By explaining one set of data in terms of another with which one is familiar, the data is explained and thereby understood. At its crudest, such explanation is merely analogy as where electricity is explained on the model of pipes through which pass a "current" of water. At is most developed such an activity is called "reductionism" - i.e. the reducing of one set of data to the concepts of a separate disciple, e.g. the reduction of chemistry to physics. One thorough-going reductionist programme would be an attempt to reduce all knowledge to the model of physics - "the queen of sciences". Examples relevant to the study of law include "psychologism", whereby law is reduced to a set of psychological concepts like "will", "fear", "motive", "desire", etc. and the Marxian scheme wherein "law" is explained as the ideological reflection of a real, economic base - law thereby being reduced to economics. One can readily understand why "reductionism" is frequently used in a sneering or pejorative sense, because it is seen as an attempt to eliminate a specific sphere of meaning, discourse and intellectual endeavour. "Reductionism" may well be seen as an attempt to abolish a specific discipline by reducing it - without remainder - to another, thereby not so much explain "law" as explaining it away.
The idea is that law, for example, has no distinctive concepts of its own; that it is not sui generis, distinctive, nor unique; that all which can be said in legal terminology can be more simply and better said in the concepts and language of the other, privileges, disciple . Often it is further supposed that the science to which the law is reduced has some predictive or causally explanatory power; the object of the reduction being to end up with "understanding" in the original, causal sense. Such an approach, of course, eliminates, the specific meaning of law altogether and it is therefore unlikely to further our understanding of law.
Secondly (b), Another, quite distinctive form of "reductionism" is much more relevant to the study of law and to legal theory. This is conceptual reductionism. What is involved here is the reduction on one concept into another, the latter being conceived of as somehow "basic" or "fundamental". Thus if, as Austin thought, the concept of "command" is "the key to the science of jurisprudence" then all legally relevant material should be reducible without remainder to the form of a command. As we shall see it cannot be so reduced and that is a fatal criticism of the command theory of law. Equally, if "the union of diffeent types of rules" is, as Hart argues, the fundamental concept, then all law and legal phenomena should be reducible without remainder to rules. This second type of reductionism is a central element in legal theory. If, as is usually assumed, property is a legal phenomenon, and if, as one persistent jurisprudential tradition holds, law is rules, then property has to be explicable as a legal concept exclusively in rules. There is an established tradition in legal theory, often referred to as "Analytical Jurisprudence" which is profoundly concerned with understanding legal concepts in this sense, that is, with the reduction of legal phenomena to their fundamental conceptual basis; and with the explanation of legally relevant material on the basis of one or a cluster of fundamental legal concepts (or "Conceptions", as Hohfeld put it)
Thirdly, to "understand" may mean to describe social phenomena in terms of the meaning they have for the social actors. If we are concerned to know and understand the law, to know the law as it is and to comprehend the content of a legal system as thoroughly as we can, then we may have to grasp the "inner meaning" of the law. It might appear that such an understanding, from the inner point of view of the social actors themselves, must necessarily be particular because it describes the actors' understanding of the law of a particular community at a particular time and place. If so, the theoretical or scientific status of such an enterprise would be open to question, the point about a theory of law being that it seeks to be general.
But there may be a way in which one can develop a general jurisprudence, even though each legal system has its own particular content: 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). Some of you may already be aware that according to Kantian epistemology, knowledge itself is a synthesis of form and content. Now the form, the conceptual framework, can be isolated and looked at in order to determine whether or not it is even prima facie likely to do its job; i.e. provide a convenient set of conceptual pigeon-holes for the legal content of any system. Indeed some legal theorists do suggest that different legal systems have a common structure, though a different content. This is true enough if they mean conceptual structure. It is manifestly false if one understand social, economic, political or even constitutional structure. It is also somewhat misleading to talk of a legal system "having" a conceptual structure. Rather a conceptual structure is a tool which the jurist brings to bear upon the content of a particular legal system, by which the jurist can classify and resent it; by which it can be known and understood.
Legal Theory is thus concerned with the conceptual structure whereby the material of a legal system can be presented and understood. General Legal Theory seeks a trans-systemic conceptualisation; i.e. it seeks a set of concepts "general" enough and sufficiently comprehensive to embrace all possible legal systems, just as Botany or Biology and other taxonomic sciences contain within them forms for the classification of all possible flora or fauna and not merely the accidental plant and animal population of a particular time, place and climate. Particular Legal Theory rests satisfied with intra-systemic concepts; i.e. indigenous concepts, known to and used by the local legal profession, scholars, and citizens to manipulate the legal material and manage the legal system. Particular Legal Theory might therefore be able immediately to adopt the local concepts and the inner meaning attributed to the data by the social actors. However, General Legal Theory may well use concepts not featuring in the thoughts and discourse of the local legal professionals and scholars. Indeed it is highly likely that a set of concepts abstract enough to present and describe the content of all, or all "mature" legal systems, would not be in day and daily use by all the local legal professionals, scholars, and citizens in each and every legal system. That being so, in order for General Jurisprudence to be systems-applicable a set of transformation rules must be super-added in order to translate local legal dialect into the general conceptual scheme of legal theory. It may be that there are very few concepts general and abstract enough to meet the demand of General Legal Theory but two opposing candidates present themselves;
I Rules or II Rights. For Hart, as we shall see, the concept of a rule is central to understanding law and to a coherent notion of General Legal Theory. We will therefore need to consider just what a rule is and what forms it may assume.
B. PHILOSOPHICAL BASIS: All theories of law are influenced by some general philosophical assumptions and Hart's Concept is no exception. The dominant school of philosophy in the mid-twentieth century, particularly at Oxford, was Linguistic Philosophy and Hart's Concept exhibits its influence through and through. Let us look, briefly, at the contribution of three leading linguistic philosophers (see R S Summers, reviewing Hart's Concept 1963 Duke Law Review 629, 631, fn 7):
1. G E Moore 1873-1959
2. Ludwig Wittgenstein 1889-1951
3. John L Austin 1911-1960 (Not to be confused with John Austin, the celebrated jurist).
In his Principia Ethica (1903) Moore advanced the general view that all difficulties and disagreements in all philosophical debates are due to one simple cause; namely, the attempt to answer questions without first discovering what the questions are. Thus so-called philosophical problems are pseudo-problems, stemming from the misuse of language. If philosophers would only get their questions clear, their problems would vanish ! Thus is philosophy reduced to mere linguistic therapy ! Of course it is important to get one's problems clear. But a clear and clearly stated problem is still a problem. An analysis of language which analyses problems away altogether is not a solution but an evasion. Clarity is a necessary but not a sufficient condition of philosophising.
But not only does the importance of language figure in Moore's philosophy, so too does the validity of the plain man's view. The status of comme sense is high. This follows from the view that philosophical problems are created by philosophers. It is their misuse of language which creates problems. Plain men are not philosophers. They don't confuse themselves. They don't have problems. Thus will common usage - the language of the plain man based upon common sense provide all the answers.
Wittgenstein's philosophy is complicated by the fact that he espoused two inconsistent theories as to the nature of language and its relation to philosophising at different stages of his life. For the later Wittgenstein, language is multiplex, complicated and related to many different types of situation which he calls "forms of life". In his earlier philosophy, Wittgenstein had attempted to construct a rigidly precise, artificial language, to overcome all problems of vagueness and uncertainty. His failure in this, which he did not become aware of for many years - indeed he gave up philosophy, convinced that he had solved all philosophical problems --- well his failure in this led him to attend to actual language in all its diversity; philosophy now involved the clarification of the confusion and perplexity spread by philosophers using language in the wrong context; i.e. like playing a game according to the rules of another game. Philosophers of the traditional type produce nonsense; which is incompatible with familiar and deep-seated common-sense beliefs. Real philosophers, i.e. Wittgenstein and the post-Wittgensteinians seek to eliminate such confusion, to overcome our bewitchment by language. As he put it, the task of philosophy is "to show the fly how to get out of the bottle". The point being, of course, that it was the philosophers who put it there in the first place.
Professor John L Austin, with whom Hart collaborated at Oxford, took linguistic philosophy seriously as an end in itself rather than as a therapeutic or prophylactic activity: 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).
Austin became deeply involved in the detail of usage and was reluctant to theorise or generalise; because (he thought) that to generalise was necessarily to distort. As will become evident from my assessment of Hart's Concept, I have little sympathy with linguistic philosophy. I cannot share Austin's startling view that : 6."... ordinary language ... embodies ... the inherited experience of many generations of men". (John L. Austin, op.cit., p.27). Austin's belief in the adequacy of ordinary language is truly astounding: 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). Notice the disdain or even contempt exhibited by Austin towards the History of Ideas ; i.e what you or I have thought up of an afternoon ! Again, I do not share the extreme views of a lesser figure of the School, G L Warnock: 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).
All this seems to me seriously wrong-headed and no more persuasive than the extravagant notion that the common law is reason itself. Of course an artificial, technical language can do certain jobs better than ordinary usage. And of course there is more to philosophy than a mere scrutiny of usage: 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).
Indeed, it seems to me that ordinary usage and common sense is trivial, platitudinous, and full of error. It perpetuates error, mysticism, and myth. It eliminates the need to be aware of the contribution of "technical" languages such as those of science, mathematics, law, etc. It seems to me to be non-critical and complacent; it accepts as justified what common sense accepts. Betrand Russell seems to me to have gotten it about right when he said:. 10."... common sense is the metaphysics of the savage". Common sense and ordinary usage philosophy t is uncritical, conservative and trivial .... 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).
A view more congenial to my own cast of mind is well put by Lon Fuller: 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).
Finally, linguistic philosophy is not above a degree of intellectual dishonesty. It introduces a littlr pre-therapeutic puzzlement or perplexity - the dark sayings, the bewildering alternation of drawing attention to the obvious, of insisting that all is plain before us, with, on the other hand, hints at the most terrible difficulty, at inner torment, at ineffability are used to cower the reader into submission. Hart's first chapter is a masterpiece of this genre. Puzzlement, deep perplexity and mystery abounds ! 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).
Against this negative view of philosophy, I oppose a wider and older view of it as the critical assessment of belief, together with such conceptual analysis and revision as is necessary to that end, even where the reconstruction of concepts goes well beyond common usage. Nor do I believe that to generalise is necessarily to distort, or that theory is to be distrusted. Rather I believe that thinking is a unifying process, and to make sense of or to understand something is sometimes to see it as part of something more general. ["Itch for uniformity"]
C GENERAL SUMMARY OF HART'S CONCEPT: Extemporise on Handout
D. CHAPTER I: THE EDUCATED MAN AND THE SALIENT FEATURES OF A LEGAL SYSTEM: 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). In the first chapter of Hart's Concept we find "puzzlement". Hart, as an exponent of linguistic philosophy gets to work right away on puzzling us. Those who came before him in the history of jurisprudence said puzzling things. This is demonstrated by selected remarks from Llwellyn, Holmes Gray, Austin and Kelsen which are "strange and paradoxical" [ p 2]. This is pre-therapeutic activity, spreading confusion in order that all can be clarified and corrected at a later stage as a consequence of Hart's own, alternative "analyses". The remarks of these jurists are easily refuted - "conflicting as they do with the most firmly rooted beliefs" [p 2] Whose beliefs? One might ask. Those of Hart's friend - "the educated man" [p 2]. Yet Hart does try to be fair. The remarks of earlier jurists are "...both illuminating and puzzling" [p 2]. The puzzles and strange paradoxes of the jurists are compared with the ability of "most men" to "cite with ease and confidence" examples of law. But, of course, Hart is not comparing like with like. The jurist attempts to answer the question, "What is law?" whereas the ordinary man gives examples of laws. Furthermore Hart does make himself sound a bit ridiculous by asserting that virtually anyone could multiply examples "coming across the word for the first time" [p 2].
However, according to hart, any educated man can identify "salient features" [p 2] of a legal system. These are:-
(1) Rules forbidding or enjoining certain behaviour under penalty.
(2) Rules requiring people to compensate those they injure
(3) Rules specifying what must be done to make wills. Contracts, or other arrangements which confer rights and create duties.
(4) Courts to decide what the rules are and when they have been broken, and to fix the punishment or the compensation to be paid.
(5) A legislature to make new rules and abolish old ones.
This is a very important passage. The educated man says that law is made up of rules: there rules are of different types ... or so it seems to the educated man. Hart's programme in his Concept, which actually commences in Chapter V, is to shoe that law can best be elucidated by thinking of it as a union of primary and secondary rules; i.e. items 1 and 3 on the educated man's list. The only justification offered at this stage for distinguishing these items is that the educated man does, or at least, Hart says that the educated man does. But we can ask: (1) Does the educated man think this? And (2) Even if he does, could that not be wrong or simplistic? Nor would it be any great surprise to discover that the educated man thinks law to be a matter of rules. For over a century education in Britain (or in England) both legal and general had followed Austin in the unexceptional view that 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).
Hart dismisses standard jurisprudential questions of the time such as "Is constitutional law really law?" or "Is international law really law?" - questions, as we will see which arise primarily in the context of Austinian legal theory - and addresses himself to the nature of the central case of law, that is municipal law and national legal systems. Hart is, in his own terns, concerned with standard cases not borderline cases. If the educated man can give a ready answer " with ease and confidence", presumably there is no problem in defining or identifying law ... or, is there? Well there certainly is ! Hart now suggests that we were "perhaps optimistic" in putting such words into the mouth of the educated man, i.e. the "ease and confidence" proves to be pretty superficial ! Of course, says Hart, those who have been perplexed have not forgotten this agreeably short way with the question: "What is law?" The deep perplexity springs from more than the conventional assertion that " laws of various types go together" [p 5] Hart goes on at this point to give a general account of what has puzzled jurists in the past, but two points cannot be overemphasised since they are basis to the whole approach of the Concept and have already been taken for granted, that it:
(1) law is somehow connected with rules; and
(2) There are laws of various types.
I will have more to say about these about these points subsequently but here I stress that Hart never deviates from the view that there are laws of different types. But what is his justification? It seems to be, at this stage anyway, merely because the educated man believes it to be the case that there are laws of different types. Of course, at a superficial level there is nothing wrong or strange or puzzling about such a view but from the point of view of logical analysis it prejudges the issue whether or not there is a common logical form underneath the superficial verbal differences. We can see that hart is here already sowing the seeds of the view which emerges in Chapter III and is developed there, namely "The variety of Laws" and which culminates in his "Fresh Start" in Chapter V as a doctrine about the union of different types of legal rules. But the types are assuredly not logical; they merely represent the common way s of speaking. This, then is Hart the linguistic philosopher and not Hart the analytical jurist.
Hart summarises the dep perplexity of earlier jurists under three questions which may be taken as the articulation of what is tacitly contained within the question: "What is law?" :-
(1) The question of obligation. It is a central feature of legal systems that conduct is made somehow non-optional. Hart tells us that 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) and again, 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). So the question becomes; "How do law and legal obligation differ and how are they related to orders backed by threats?" This way of putting the question reveals that for all Hart's criticisms and ultimate rejection of Austinian legal theory, the assumptions of and agenda of that theory are profoundly influential in shaping Hart's questions and solutions. Hart, I think was never able fully to free himself of Austinian traces although whether that is a weakness or a strength of his own theory is a matter for debate. [Hart = Austin + Kelsen ÷ 2] Thus we see Hart's ambivalence towards Austin whose reduction of law to psychological fact though "attractive" both "distorts and confuses" [ p 7].
(2) In what manner is behaviour made obligatory? This raises questions about moral obligation and legal obligation and the relationship of law and morals. These are, of course, central and contested questions in jurisprudence.
(3) The idea of rules. Here [p 8] Hart starts puzzling us again. Though the idea that law is somehow explicable in terms of rules seems indubitable, in fact, the notion of a rule is "unsatisfactory, confusing and uncertain"; it conduces to "perplexity". In the midst of a barrage of questions about rules, designed it would seem to baffle us still further, Hart introduces [p 8] the view that there are different types of rules and what might be meant by "types" is partially explained, as follows:
(a) Rules which pertain to different activities are different;
(b) Rules which originate in different ways are different.
(c) Rules may differ in their relation to conduct.