Hart – Concept of Law

Chapter 1

Summary

The first chapter is titled, “Persistent Questions.” The first subsection deals with the issue of legal theories as getting to the nature of law and how most of us have an intuitive idea. Still, there are residual questions: first, the problem of sovereignty (or lack thereof) in international law; second, the problem of borderline cases. This points to a deeper problem than just putting on labels of what counts as law.

He then moves to a section on three recurrent issues. First, the problem of normativity and authority, and he mentions Austin’s imperative theory as a common answer in English jurisprudence. Second, distinguishing sources of normativity: e.g. moral from legal. This is an early hint at Hart’s picture of normativity. Third, how to conceptualize (ontologically) law/rules, but in terms of behavior and its relation to normative practices (e.g. etiquette vs law). Here, again he looks to respond to Austin.

In the third section, he moves to definitions, line drawing, and labels. He argues that definitions do not solve the problem because the issues themselves remain unsolved and undefined (“too different… and too fundamental”).

Analysis

It’s important to note that Hart takes Austin as a target because Austin is arguable the first writer to approach law analytically (and not historically or sociologically). Here are the general features of Austin’s theory:

“Commands” involve an expressed wish that something be done, combined with a willingness and ability to impose “an evil” if that wish is not complied with. Rules are general commands (applying generally to a class), as contrasted with specific or individual commands (“drink wine today” or “John Major must drink wine”). Positive law consists of those commands laid down by a sovereign (or its agents), to be contrasted to other law-givers, like God’s general commands, and the general commands of an employer to an employee. The “sovereign” is defined as a person (or determinate body of persons) who receives habitual obedience from the bulk of the population, but who does not habitually obey any other (earthly) person or institution. Austin thought that all independent political societies, by their nature, have a sovereign. Positive law should also be contrasted with “laws by a close analogy” (which includes positive morality, laws of honor, international law, customary law, and constitutional law) and “laws by remote analogy” (e.g., the laws of physics).
(Austin 1832: Lecture I).

The problem is that there is nothing normative about a habit. Nadler’s example is that eating lunch at noon is a habit but stopping at stop signs is not a habit.

Law is different from the gunman situation because legal official have the right to command us or have authority, but Austin takes away any notion of rights.

Chapter 2

Summary

This chapter begins to interact with Austin’s imperative theory of law, or law as coercive orders. The first subsection is titled “Varieties of Imperatives” and mentions Austin directly, specifically “Province of Jurisprudence Determined.” This work is the target for Hart in this and the next two chapters.

He begins by looking at the “imperative mood,” which is essentially a command, using the example of a gunman coercing a clerk. He notes related linguistic usages of words like “order” and “obedience,” which exercises authority. He is quick to make a distinction that authority does not necessarily mean fear, and it is not about the power to inflict harm; rather, it is about the “respect for authority.”

He then moves to the connection to law “as coercive orders.” Hart here seems to be making sociological observations about how the law functions in society and compares it to Austin’s imperative account. For instance, the parlance of laws being “addressed” to people should not be understood as commands, says Hart; rather, this confuses the question of who the law applies to and who it is revealed to. Hart further notes the “standing” or persistence of the law, where the gunman only gives discrete orders to the clerk (e.g. hand over the notes; not, follow my orders at all times in the future).

Austin may then reply that followers have a “general habit of obedience.” Hart notes that this is vague and imprecise. Again, we see Hart’s empirical observations: our system of law does not have a commander that is “internally supreme and externally independent.” Austin notes that “command comprises the term law,” which is an interesting lexical starting point. He, moreover, appeals to “simplicity” as a criterion. The gunman metaphor of a command backed by punishment. He develops his conception of duty this way; namely, duties are generated by the command and threat of punishment (i.e. laws are “imperatives”). Austin also defines sovereignty in terms of habitual obedience – one is a sovereign so long as they command habitual obedience of subjects.

Analysis

Austin’s theory is often called the “imperative” theory of law. We are introduced to some basic problems which Hart elaborates on in later chapters. What is notable at this pint is the methodology employed by Hart and Austin. They both seek to distill the necessary and essential elements of law. For Hart, the question of “what is law” has a clear ostensible answer of pointing to example. But we are also not looking for the philosophy of language or labels. We are looking for the answer to the nature of law and the normativity of law.

Notably, for Austin, to figure out the law, we just need sociological data about who exclusively commands and also is habitually obeyed.

Chapter 3

Summary

This chapter continues the attacks o Austin’s imperative theory, and it is titled, “The Variety of Laws.” It is interesting to come from the angle of comparative law and legal theory, but presumably Hart wants to make generalized empirical statements that capture similarities across all legal systems. He mentions the role of “custom” immediately in the start of his chapter.

He notes three categories of objections towards Austin: the “content of laws,” the “mode of origins,” and the “range of application.” He proceeds to explain each in turn. The content of laws generally deals with duty-imposing and power-conferring rules. The best example of duty imposing rules is in criminal law, whereby there is a sanction attached to the violation of the criminal statute. Contract law, for example, is not structured this way and instead provide individuals with “facilities for realizing their wishes, by conferring legal powers…” Such power-conferring rules are aimed at deterrence of antisocial behavior, rather it defines conditions and boundaries of legal validity (another example is jurisdictional rules). These are necessary parts of a legal system because they are essential to commerce, wills, and marriages (i.e. legal entitlements and social distribution).

Austin may respond that nullity is a punishment. There is something to this argument because of the realities of psychological disappointment. But merely withholding a good is different from imposing a bad. Hart again appeals to necessary connections to make this point: he says that is it logically possible for criminal law to exist without punishment, but nullity cannot be logically separated from power-conferring rules.

Hart deals with another objection, which he attributes to Kelson: “Power-conferring rules as fragments of laws.” The view attributed to Kelson is that laws are “conditional orders to officials to apply sanctions.” That is, citizens look at the actions of legal officials in a normative way. Unlike Austin expanding the notion of sanction to accommodate power-conferring rules, Kelson restrict it; that is, what looks like a power-conferring rule is actually a part of a larger rule that imposes a duty on legal official to impose a sanction. On Kelson’s view, all of law is a long conditional. But treating officials as the primary audience of legal rules does not match how rules guide conduct.

The final objection that Hart deals with is titled: “Distortion as the price of uniformity.” This seems to be an attack on Holme’s predictive theory. He looks at the “cardinal distinction” that characterizes law as a form of “social control.” Here Hart makes explicit mention of the “bad man” and questions why the law should not care about the “puzzled man” or “ignorant man.” This conception of the law ignores and obscures the law’s co-operative feature (Hart also mentions the law and society as a “game” metaphor).

The next critique of Austin is the range of application. This is a simple argument: an absolute monarch would be above the law, but the rule of law is core in legal systems. A response might be that a monarch can bind themselves, but there is nothing “essentially other-regarding” about the law.

Next, the modes of origin. Hart notes that custom as sources of law cannot be accounted for in Austin’s theory. Customs cannot find their source in a law-creating act by a sovereign.

Analysis

The distinction between duty-imposing and power-conferring is essential to Hart’s view. Shapiro notes two critiques of Austin: not every legal rule imposes and obligation and not every legal rule is a command. For example, power conferring rules, like formation of wills (Shapiro) or creating contracts. If they fail to meet the requirements of contract formation, they do not break a law, the law just does not recognize it as a valid contract.

This may, as Professor Nadler suggests, track onto the idea of negative (liberty from interference by others) and positive (the power and resources to fulfil one’s potential) freedom (Berlin, 1958). Duty-imposing make us respect other people’s rights, but power-conferring tell us about how to acquire rights. The problem is that tax and conscription laws do not protect from interference or respecting rights. One response might be that maybe duty-imposing laws need to be separate between private and public (i.e. contributing to public political life) law, and perhaps power-conferring rules could be divided in the same way. Still, similar to criminal law (public), the function of private law seems primarily to guide conduct and secondarily to offer remedies.

A key move by Hart with power-conferring rules is that “nullity” is not a sanction. A reply to Hart might be that nullity is a sanction insofar as it changes reasons or motivations for actions. For example, a bonus for arriving early to work. But what if I really want that bonus? It’s not a punishment in the sense of taking away negative free, but it takes away positive freedom.

The “predictive” theory of law is often attributed to Holmes and his version of legal realism. Holmes believes that laws are just prophecies of how judges decide a case. They never openly engage in moral reasoning and are largely formalistic (only using legal logic/experience in interpretation). Remember, Hart denied the connection between formalism and positivism. Hart thinks that the predictive theory only looks at the external, descriptive look of rules, like from the perspective of the bad man – put differently, if your theory cannot capture sanctions on the bad man, your theory of law is deficient. This view fails to account for the fact that there is not only a convergence of behavior (from the bad man POV), but also attitudes. Applied to our legal system. Holmes would have to reply that trial courts are predicting what appeals courts would say and the SCC is trying to predict legislation and principles of social good. However, Holmes might reply that he is not concerned with legal rules as Hart is and really only concerned about practical legal problems or law in action. Holmes is looking at methodology and not analytic jurisprudence. They are concerned with what the law is, and not concerned with ought (as Hart portrays).

Hart’s notion of custom (not in the conscious law-creating act of a law-giver) points to the idea that some social rules are ineliminable, primitive, and prior to commanders.  International law might be the prime example because there is no established law-giving sovereign. There are accepted customs — like sovereignty of countries — but also salient moral points, like torcher and slavery (hostis humani generis; “enemy of mankind”). For the command theory, every law must be traced back to the wish of the sovereign, but these customary laws do not have to be traced back to them.

Hume’s is-ought problem, according to Hart, assumes only the external point of view, but it fails to understand the internal point of view and its description that those who hold it are normatively bound.

Hart can account for the bad man by saying that the bad man can say he has a legal obligation, even if the obligation is not motivated by the reasons others hold (e.g. Good man: I have to pay my taxes because it will help my community, so I have a legal obligation; bad man: I have to pay my taxes because I will otherwise be punished, so I have a legal obligation.)

Chapter 4

Summary

This chapter attacks Austin’s theory of sovereignty. First, on the point of the habit of obedience and the law’s continuity. If it is just a habit, why would they need a commander? Through a personal relationship — that seems odd? How do we maintain the habit after Rex I dies? The office or right to the new Rex II cannot be explained as a “right” under the habit theory. Hart also talks about the difference between a habit and a rule: deviation from a habit is not criticized; habits are not normative or reasons for action; habits are not “internal” or generalized behavior. Austin’s theory also fails in his account of sovereignty as habits and rules. Hart notes in response the “continuity of law-making power.” In Shapiro’s terms, he quotes, “The King is dead! Long live the King!”

Second, Hart also notes the problem of the “persistence of laws“: laws persist across the change of sovereignty.

Third, the legal limitations on legislation. This is a straightforward argument: an unfettered sovereign has no legal limitations on law-creating power, but the legislature is clearly limited. Constitutions impose legal “disabilities” or limits or the absence of power of the legislature; that is, the rules which empower the legislature are constrained.

Fourth, the sovereignty behind the legally limited legislature is odd. Austin also has trouble explaining how laws can apply to its maker.

Analysis

Another argument might be the empirical fact or phenomenology that people don’t see themselves are motivated by threats and legal officials don’t see themselves are gunman. There are citizens whose motivations for obeying the law is based on morality, while Austin is only concerned with the “bad man.” Austin’s theory also fails because it does not understand “the impersonal nature of legal regulation” (Shapiro) and the rule maker may not even know what law they are creating. It does not personally instruct people with commands — commands are necessarily bilateral. Nadler understands this as generality: e.g. “Don’t steal” instead of “Jennifer don’t take Alexander’s computer.” Shapiro also adds that Austin’s theory of sovereignty cannot capture the intelligibility of “claims of and thoughts about legal authority,” that is, the habit of saying “um” and how habits are unconscious, but laws generate explicit obligations and consciously thinking about them.

Chapter 5

Summary

This begins his theory building, starting with primary and secondary rules. He continues bashing Austin on the point of obligations and goes into this theory of normativity. He titles the section “a fresh start.”

He also establishes primary and secondary rules. He further argues that primary rules alone cannot works because they’re uncertain, static, and inefficient. In response to uncertainty, we can introduce a rule of recognition, which establishes legality. This secondary rule allows us to identify primary rules of obligation. In response to the problem of static quality of the regime of primary rules, we have rules of change. In response to inefficiency, we have rules of adjudication.

The rule of recognition is the “ultimate” rule. It is the “supreme” criteria of legal validity because it defines the legal rules that are not defined by any other legal rule. The rule of recognition is a social fact and sets a groupwide standard. It is self-justifying and does not rely on external morality. Compared to rules of etiquette, legal systems are interconnected and traced back to a common validating source.

Analysis

The rule of recognition, on this account, imposes a duty on officials to apply rules that bear certain characteristics. Again, the characteristics of the rule are what distinguishes it as a legal rule rather than mere custom. In other words, the rule of recognition sets out the criteria of legal validity, and hence picks out the set of legal rules for a particular legal system, because the law of a particular system just is the set of rules that officials of a certain system are under a duty to apply and the rule of recognition sets out the content of this duty. Perhaps the rule of recognition is directed at courts, while the rules of change and adjudication are directed at the official parties who are empowered by these rules. Judges, on this view, are the foundational for recognizing legality. Presumably, the legislature must stay within the bounds of legality (e.g. constitution) when legislating and the executory must also stay within the bounds of legality when enforcing. There might be a bundle of rules: judicial review, stare decisis, applying common law (adjudicate disputes outside of legislation from doctrines and principles from the history of judicial making), rules of interpretation, procedures of law making, etc.

The duty and normativity for the officials is primitive: that is, we are just describing the practice of how they distinguish what is a legal rule and what is not a legal rule, then we understand what they conceive as the rule of recognition.

 The internal point of view involves a “reflective critical attitude” towards the patterns for justifying your own behavior and criticizing other deviants of the rule. Social rules can mean broad social support or support by influential people; in a primitive society, it’s about broad social support whereas developed society it is about influential people.

Chapter 6

This chapter looks at legal systems and further elaborates on the rule of recognition and legal validity. A lot of what Hart says is in an earlier paper, “Separation of Laws and Morals.” Here, he makes clear his motivations for positivism: it provides intellectual clarity and allows citizens to be more critical of the law.

He also presents the “separation thesis,” which purports that law does not necessarily (although, it could, according to inclusive legal positivists) include moral content. This thesis basically maintains that determining what the law is, does not necessarily, or conceptually, depend on moral or other evaluative considerations about what it ought to be in the relevant circumstances. Professor Dyzenhaus does not buy the separation thesis. For example, look at the judge who is faced with morally problematic law. What does it mean that legally you ought to but morally you ought not to? This is a commitment of normative monism (Hart is a pluralist).

The rule of recognition is, among other things, a social rule. First, this can mean it exists and has content because it depends on other social facts; or, second, it can mean that it just sets out a standard for the group. This might just describe or observe the way some societies consider something legally valid.

Interestingly, Hart notes that only the officials need to subscribe to the internal point of view: “In an extreme case the internal point of view with its characteristic normative use of legal language (“This is a valid rule”) 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 sheep-like; 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.” It’s about the attitudes public officials have towards their own activities: officials believe primary rules (per rule of recognition) impose obligations and justifies coercion.

In presenting these thoughts on obligation, Hart cites three distinct, but related characteristics: 1. “Rules are conceived and spoken of as imposing obligations when the general demand for conformity is insistent and the social pressure brought to bear upon those who deviate or threaten to deviate is great.” Two further characteristics of obligation are then said to “go naturally together with this primary one.” 2. “The rules supported by this serious social pressure are thought important because they are believed to be necessary to the maintenance of social life or some highly prized feature of it.”; and finally 3. “[I]t is generally recognized that the conduct required by these rules may, while benefitting others, conflict with what the person who owes the duty may wish to do. Hence obligations and duties are thought of as characteristically involving sacrifice or renunciation…” (86-87)

Analysis

Law regarded as a means of influencing and directing social behavior, but surely legal officials need to take into consideration the reasons generated in the participants. From the standpoint of the citizen, Hart is not so different from Austin. The critique, according to Professor Nadler, is that strangers to this society do not have reasons to obey the law. If all these secondary rules are derived by consensus, then widespread disagreement, as Dworkin suggests, would make the rule of recognition problematic (e.g. disagreement in interpretive methodology).

There are some gaps in Hart’s account. Professor Shapiro, for instance, ask if the rule of recognition a duty imposing or power conferring rule? Is it a rule practiced only by judges or by all legal officials? (Professor Nadler thinks it’s power-conferring.) Moreover, in a complex system, different officials might be under duties to apply different rules, so they may apply multiple rules of recognition.

Professor Waluchow, a defender of Hart, seeks a more charitable understanding of the internal and external point of view in understanding where the normative force of secondary rules come from. Professor Shapiro accuses hart of making a “category mistake” when reducing social rules to social practices. To defend Hart, the person describing the existence of a social rule of a particular society can only say there is a social rule if it is indeed the case that there is convergence in beliefs and attitudes. The normative reasons are that the rules are crucial features for protecting social life or some associated value. Again, there is a built-in notion of political and legal obligation.

Nadler: Hart’s account does not give the outsider reasons to obey the authority. Authority must be analyzed with a dissenter and ask if the dissenter must comply anyway (the bad man).

Hart wants to distinguish himself from the gunman situation without collapsing the distinction between law and morality. He uses the internal point of view to patch this obligatory nature to law.

Nadler has two critiques of Hart. First, if law must be acceptable to its citizenry, then it must be justifiable to the citizenry, but this collapses the separation of law and morality. Second, if Hart wants to instead say it is only about legal officials accepting the rule of recognition, then he maintains the separation of law and morality, but returns to Austin’s command theory; that is, we would only need the self-interested legal officials to maintain law.

Could officials come together and make the rule o recognition tyrannical for their benefit?

Penumbra cases are not the judge discovering what the law is but using normative principles of public policy (legislate) – Hart does not think this is moral because it just shows the law ran out so we go to morality then.

Dworkin – Law’s Empire

Chapter 1 – What is law

Dworkin starts with the topic of why the question matters. He then makes a distinction between propositions of law (factual) and the grounds of law (theoretical). He ascribes to his predecessors the “plain fact” view of the grounds of law, like Hart, where laws are limited, like a book on a shelf. Then he uses case examples to show theoretical disagreement: Elmer’s case, snail darter, etc. He uses this to show that positivists cannot account of judicial disagreement.

Dworkin elaborates a critique of Hart and legal positivists that is different from Dworkin’s earlier articles.  

Another key distinction of law is between propositions of law (true or false) and grounds of law (make the propositions of law true or false. Theoretical disagreement is about what the grounds of law are, and what makes propositions of law true.

Chapter 2 – Interpretive Concepts

This chapter begins with the semantic sting. The semantic sting happens when people think all we need to argue sensibly with one another about law is the same criteria (e.g. rule of recognition). This pushes them into a dilemma: either they do have the same criteria, or there is no criteria and people are just arguing about different meanings (open texture of language). The second is not true, so does this mean there is a criteria? But what is the shared criteria and how can it account for theoretical disagreement? The sting is that positivist’s picture of legal disagreement is superficial and cannot account for theoretical disagreement.

He then moves onto his methodology. He compares it to literary analysis. Any interpretation of a piece of literature must fit with the “genre” and put it in its “best light.”

People who hold the plain fact view of law – that laws are just empirically verifiable facts – pushes consensus. But if officials always have to agree by consensus, then theoretical disagreement should be impossible. Legal positivists cannot explain theoretical disagreement, which seems to be everywhere. Judges are not disagreeing about whether some proposition of law is true or false, but the nature of what makes law true or false (the grounds of law and theoretical disagreement, or what the rule of recognition is).

Distinguishes interpretative concepts from criterial concepts: criterial concepts are just what conditions something must meet to be categorized (e.g. a book must have pages). Interpretive concepts are not determined by meeting conditions rather it is determined in relation to purpose or value or ends.

Chapter 3 – Jurisprudence Revisited

Dworkin denies a “concept” of law but instead says the right approach is to look for “conceptions” of law. He offers three: conventionalism, legal pragmatism, and law as integrity. He likes the last one.

Basic structure: discern purpose and show it in its best possible light. Discerning purpose is constrained by the form the object takes, so this must fit the object.

Judicial interpretation: making sense of background principles. An interpretation of the background principles must first pass the test of it (e.g. how it was interpreted in the past). Next, show why this interpretation is better than other interpretations (which also passed the test); this is done by showing that one interpretation shows the best moral justification of the law as a whole and the interpretation puts the law in the best light. Contradictory principles can be ranked and reconciled.