Hart’s Views on Law

Jeffrey Thayne

H. L. A. Hart criticized the theory that law is simply the coercive orders of the sovereign to his subjects. He shows that this theory cannot explain the many facets of modern law, and concludes that a fresh start is needed. He said that the reason that the “conception of law as the sovereign’s coercive orders” fails is because it does not include the concept of a rule.

The External and Internal Points of View

Some theorists have developed what Hart called the “predictive theory of law,” which claims that law is a way for human beings to predict the actions of the fellow beings, particularly which of their own actions will bring upon themselves a hostile reaction from their peers. Laws give them guidelines to follow that will help them evade potential punitive consequences.

Hart feels as though this is an inadequate theory of law. Let’s try a thought experiment. Imagine an alien race studying the human species as a naturalist would study the meanderings of a colony of ants. The alien creatures would, eventually, discover a pattern of behavior; everyone people performed a certain act, others would detain or hurt them in some way. Through observation, they could eventually discover a rule that governed this behavior—every time a person does X, others respond with punishment Y. Another example: every time a light turns red, people will stop.

The alien creatures would have thus discovered among the human species a law and its associated enforcement. They could predict human action, to an extent, based upon these laws. They could treat traffic lights as signals that help them predict the behavior of motor vehicles, in the same way that “clouds are a sign that rain will come.” Then could even conclude that if an individual does not want punishment Y, he should not perform X. Hart calls this predictive vantage point the external point of view.

From this external point of view, if a law is not enforced, it doesn’t really exist at all. It would be undetectable to the external observer. An external observer would conclude that legal obligation is inextricably tied to enforcement and coercion. If someone can get away with breaking the law, they are not obligated to follow it. This is the implication of the statement that law is merely the coercive commands of the sovereign.

External Point of View

Law is useful for predicting the behavior of others and predicting potential punitive consequences of action.

Internal Point of View

Law is a reason for action, and justification for punitive consequences of action.

Hart’s “fundamental objection” to this external point of view is that “the predictive interpretation obscures the fact that, where rules exist, deviations from them are not merely grounds for a prediction that hostile reactions will follow or that a court will apply sanctions to those who break them, but are also a reason or justification for such a reaction and for applying the sanctions.” Simply put, breaking a rule does not simply allow us to predict that punishment will follow, it gives us grounds to say that punishment should follow.

Hart described this perspective as the internal point of view. This insight is something that can never be discovered by someone from the external point of view. Hart said that someone from the external point of view “will miss out a whole dimension of the social life of those whom he is watching, since for them the red light is not merely a sign that others will stop: they look upon it as a signal for them to stop, and so a reason for stopping in conformity to rules which make stopping when the light is red a standard of behaviour and an obligation.”

In essence, Hart claimed that legal theorists need to acknowledge both the external and internal points of view, and that the predictive theory of law defines the internal point of view out of existence. A theory of law needs not only to describe law as it is, but also the existence of legal obligation. In other words, a legal theory needs to account for the fact that law gives us a reason for acting, and that reason for acting cannot just be coercion or the avoidance of punishment.

Obligation

Another reason that Hart criticizes legal theories that base obligation in coercion is that they fail to describe real obligation at all. “Let us recall the gunman situation,” he said. “A orders B to hand over his money and threatens to shoot him if he does not comply.” We often, mistakenly, describe this situation in terms of obligation because this situation is “certainly one in which we would say that B, if he obeyed, was ‘obliged’ to hand over the money.” This, however, fails to account for legal obligation. “It is, however,” he continued, “equally certain that we should misdescribe the situation if we said, on these facts, that B ‘had an obligation’ or a ‘duty’ to hand over the money.” Clearly, he concluded, “we need something else for an understanding of the idea of obligation. … To feel obliged and to have an obligation are different though frequently concomitant things.” Coercion cannot be the source of legal obligation.

Neither do prescriptive rules, simply by their nature, carry an obligation. Hart described some kinds of rules that do not seem to carry the weight of obligation, such as table manners, for example, or the rules of grammar. He said, “To use in connection with rules of this kind the words ‘obligation’ or ‘duty’ would be misleading and not merely stylistically odd. It would misdescribe a social situation.”

Primary and Secondary Rules

Primary Rules

Require or forbid certain actions

Secondary Rules

Instructions for adding or altering primary rules

Hart described two basic types of rules. Under the primary type of rules, he said, “human beings are required to do or abstain from certain actions, whether they wish to or not.” Rules of the secondary type “provide that human beings may by doing or saying certain things introduce new rules of the primary type, extinguish or modify old ones, or in various ways determine their incidence or control their operations.”

Weaknesses in Primary Rules

Hart invited his readers to envision a primitive society without “a legislature, courts, or officials of any kind.” This society would certainly have customs, norms, and rules to live by, but they would all be rules of the primary type. Hart described three central weakness that these primary rules would have.

First, if doubts arise as to the actual nature of these rules, there would be no authority to turn to to settle those doubts. Thus, the rules would always be subject to an element of uncertainty.

Second, “there will be no means, in such a society, of deliberately adapting the rules to changing circumstances, either by eliminating old rules or introducing new ones.” Thus, the second defect of these primary rules would be that they are static.

Third, these primary rules would inevitably be applied inefficiently, because there is no one who can authoritatively discern if a rule has been broken. There is no way to diffuse the responsibility for enforcing them. For this reason, the third defect in these primary rules would be that they are inefficient.

Consequently, rules of an entirely different type are needed. Hart explains, “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… The introduction of the remedy for each defect might, in itself, be considered a step from the pre-legal into the legal world.”

Secondary Rules that Remedy Them

The secondary rules that remedy uncertainty in primary rules are called rules of recognition. These rules describe the means by which rules become authoritative. In primitive societies, Hart explains, these may simply be that the rules are listed in a book, or a stone tablet. “In a developed legal system,” he continued, “This may be the fact of their having been enacted by a specific body, or their long customary practice, or their relation to judicial decisions.”

The secondary rules that remedy the static quality of primary rules are called rules of change. “The simplest form of such a rule,” said Hart, “is that which empowers an individual or body of persons to introduce new primary rules for the conduct of the life of the group … and to eliminate old rules.” These rules are closely connected with the first set of secondary rules, because the changes made in accordance with the rules of change must be authoritative according to the rules of recognition.

Weaknesses	Secondary Rules
Uncertainty	Rules of Recognition
Static	Rules of Change
Inefficient	Rules of Adjudication

The secondary rules which remedy the inefficiency in primary rules are called rules of adjudication. These rules empower “individuals to make authoritative determinations of the question whether, on a particular occasion, a primary rule has been broken.” The reason these are secondary rules is because the don’t “impose duties” as primary rules do, but instead “confer judicial powers and a special status on judicial declarations about the breach of obligations.”

What the Realists Are Wrong

Hart disagreed with legal realists who claimed that law is made by judges, not legislatures. He said that realists fail to distinguish “between the ‘core’ and the ‘penumbra’ of a law.”¹ The core of a law consists of those particular circumstances known to the legislature and which the law was designed to address. On those issues, said Hart, the judges decision was bound by the written law. It is only in the ‘penumbra’ of a law, which consists in those “particulars which were not in the minds of the legislators but are offered later as new candidates for inclusion.”¹ It is only in those cases that the claims of the legal realists apply.

Summary

Hart felt that the distinction between primary and secondary rules helps resolve many confusions in legal theory. He said,

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 believed that the reason that theorists have struggled to understand legal obligations is because “these essentially involve reference to what we have called the internal point of view: the view of those who do not merely record and predict behavior conforming to rules, but use the rules as standards for the appraisal of their own and other’s behavior.” Many theorists ignore the internal point of view because “there is a constant pull towards an analysis of these in the terms of ordinary or ‘scientific’, fact-stating or predictive discourse. But this can only reproduce their external aspect.”

---

---

Notes:

1. Shirley Robin Letwin, On the History of the Idea of Law, (Cambridge: Camrbidge University Press, 2005).
All other quotations taken from H. L. A. Hart, The Concept of Law (Oxford: Clarendon Press, 1994).