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Photo of the cover of The Concept of Law

The Concept of Law (ISBN 0-19-876122-8) is the most famous work of the legal philosopher H. L. A. Hart. It was first published in 1961 and develops Hart's theory of legal positivism (the view that laws are rules made by human beings and that there is no inherent or necessary connection between law and morality) within the framework of analytic philosophy. In this work, Hart sets out to write an essay of descriptive sociology and analytical jurisprudence. The Concept of Law provides an explanation to a number of traditional jurisprudential questions such as "what is law?", "must laws be rules?", and "what is the relation between law and morality?". Hart answers these by placing law into a social context while at the same time leaving the capability for rigorous analysis of legal terms, which in effect "awakened English jurisprudence from its comfortable slumbers".[1] As a result Hart's book has remained "one of the most influential works in modern legal philosophy",[2] and is also considered a "founding text of analytical legal philosophy",[3] as well as "the most successful work of analytical jurisprudence ever to appear in the common law world"[4]

Background[edit]

The book emerged from a set of lectures that Hart began to deliver in 1952, and it is presaged by his Holmes lecture, Positivism and the Separation of Law and Morals delivered at Harvard Law School. The Concept of Law developed a sophisticated view of legal positivism.

Among the many ideas developed in this book are:

  • A critique of John Austin's theory that law is the command of the sovereign backed by the threat of punishment.
  • A distinction between primary and secondary legal rules, where a primary rule governs conduct and a secondary rule allows of the creation, alteration, or extinction of primary rules.
  • A distinction between the internal and external points of view of law and rules, close to (and influenced by) Max Weber's distinction between the sociological and the legal perspectives of law.
  • The idea of the Rule of Recognition, a social rule that differentiated between those norms that have the authority of law and those that do not. Hart viewed the concept of rule of recognition as an evolution from Hans Kelsen's "Grundnorm", or "basic norm."
  • A late reply (1994 Edition) to Ronald Dworkin, who criticized legal positivism in general and especially Hart's account of law in Taking Rights Seriously (1977), A Matter of Principle (1985) and Law's Empire (1986).

Austin's "Command theory"[edit]

The starting point for the discussion is Hart's dissatisfaction with John Austin's "Command Theory": a jurisprudential concept that holds that law is command backed by threat and is meant to be ubiquitous in its application. Hart likens Austin's theory to the role of a gunman in a bank and tries to establish the differences between the gunman's orders and those made by law. (For instance, the gunman forces us to obey but we may not feel inclined to obey him. Presumably, obedience to the law comes with a different feeling.)

Hart identifies three such important differences: content, origin, and range. In terms of content, not all laws are imperative or coercive. Some are facilitative, allowing us to create contracts and other legal relations.

Austin believed that every legal system had to have a sovereign who creates the law (origin) whilst remaining unaffected by it (range), such as the bank scene's gunman, who is the only source of commands and who is not subject to other's commands. Hart argues that this is an inaccurate description of law, noting that laws may have several sources and legislators are very often subject to the laws they create.

Social habits, rules, and laws[edit]

Hart draws a distinction between a social habit (which people follow habitually but where breaking the habit does not bring about opprobrium - going to the cinema on Thursday for example) and a social rule (where breaking the rule is seen as wrong - neglecting to take off one's hat upon entering a church, for example). We feel in some sense bound by social rules and laws frequently appear to be types of social rule.

There are two perspectives to this: the external aspect, which is the independently observable fact that people do tend to obey the rule with regularity, and the internal aspect which is the feeling by an individual of being in some sense obligated to follow the rule, otherwise known as the critical reflective attitude. It is from this internal sense that the law acquires its normative quality. The obedience by the populace of a rule is called efficacy. No law can be said to be efficacious unless followed by the majority of the populace. Though an average citizen in a modern state with a developed legal system may feel the internal aspect and be compelled to follow the laws, it is more important for the officials of the society/peoples to have the internal aspect since it is up to them to follow the constitutional provisions which, if they wish, could ignore without accountability. Yet, the officials must use the internal aspect and accept the standards as guiding their behaviour in addition to also guiding the behaviour of other officials.

But laws are more than rules of conduct. Laws can be divided up into two sorts: primary rules (rules of conduct) and secondary rules (rules addressed to officials and which set out to affect the operation of primary rules). Secondary rules deal with three problems: first the problem of uncertainty about what the law is (the secondary rule for this dilemma is called the rule of recognition and states the criteria of validity of a law), second the problem of rigidity of rules (which requires rules of change allowing laws to be varied), and third the problem of how to resolve legal disputes (from which rules of adjudication arise). A legal system is "the union of primary and secondary rules."

Lastly, Hart lets us know that laws are much broader in scope than coercive orders, contrary to the "command theory" of Austin. Frequently laws are enabling and so allow citizens to carry out authoritative acts such as the making of wills or contracts which have legal effect.

See also[edit]

References[edit]

  1. ^ Postema, Gerald (2011). Enrico Pattaro, ed. Legal Philosophy in the Twentieth Century: The Common Law World. A Treatise of Legal Philosophy and General Jurisprudence 11. Springer. p. 261. 
  2. ^ Green, Leslie (2012), "Introduction" in H.L.A. Hart, The Concept of Law: Third Edition. Calderon Law Series, xv.
  3. ^ Marshall, Richard (2012-07-06). "The Endless Search For Truth: Richard Marshall interviews Andrei Marmor". 3:AM Magazine. Retrieved 19 September 2013. 
  4. ^ Simpson, A. W. Brian (2011). Reflections on 'The Concept of Law'. Oxford University Press. p. 1. ISBN 0199693323. 

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5 news items

 
Prospect
Thu, 10 Jul 2014 16:43:44 -0700

It was over a century before Austin's theory was challenged. But it was challenged brilliantly, by HLA Hart in The Concept of Law (1961). Hart showed that actual real-life laws are not like orders backed by threats, as the command theory states. Nor is ...
 
The Guardian
Tue, 22 Jul 2014 02:45:00 -0700

Writing on Law in the Society, an Ass, Idiot?, Professor M. O. U. Gasiokwu argues that a myth has been created around the concept of law, "rendering it difficult to be defined or even understood." While jurists such as Hart and Gabriel had expounded on ...
 
Eureka Street
Tue, 22 Jul 2014 18:18:45 -0700

In either case both the rulers and the ruled attack the concept of law and order. Is it not time for both to examine their consciences? When attending the Bar common room for lunch that day, a senior silk told the Vice President that there was now no ...

The Christian Century

The Christian Century
Wed, 09 Jul 2014 07:02:47 -0700

A prohibition that cannot be enforced with anything approaching reliability or equity damages the concept of law itself. For me, and for most of the people I knew in high school and college, laws against marijuana did not express a social contract to ...
 
Cleveland Jewish News (blog)
Thu, 17 Jul 2014 16:28:12 -0700

1907: In Harrogate (UK), Rose Samson Hart and Simeon Hart gave birth to Herbert Lionel Adolphus Hart (H.L.A. Hart) who became a Professor of Jurisprudence at Oxford and authored numerous legal tomes including The Concept of Law. 1911(22nd of ...
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