 The Concept of Law – HLA Hart

Preface

His book is not just for Law students but also those interested in the sociological theories of
the law. He wants to further the understanding between the interrelation between law,
coercion, and morality. According to Hart it’s an analytical essay on jurisprudence.

One of the central themes of the book – The fact that law cannot be understood without an
understanding of two different kinds of statements, internal and external, whenever social
rules are observed.

Professor JL Austin’s suggestion that ‘a sharpened awareness of words to sharpen our

perception of the phenomena’ holds true throughout the book. It’s an essay on descriptive
sociology. The book suggests that inquiring into the meaning of the words not just throws
light on the words, but it also sharpens our perception of the phenomena that the word
represents.

Chapter 1 – Persistent Questions

Divided into three sections

1) Perplexities of Legal Theory

2) Three Recurrent Issues
3) Definition

Perplexities of Legal Theory

This section is primarily concerned with Hart’s inquiry into why the word law has troubled
legal philosophers so much. No other branch of science uses the concerns of science to define
the science or say that even if it is a concern of the science, it is not really part of the science.
For example, in chemistry, no one would say that the study of acids does not really form a
part of chemistry at all. Legal philosophers and practitioners of the law, have defined law in
various ways. Yet, their definition is but a part of what is law, and is a great exaggeration of
it. Thus, if one were to understand the context in which the definition was given, it would
throw a major light on that aspect of the law, and yet keeping hidden its other aspects.

Just the fact that law has clear and doubtful cases is not the reason for the complexity of the
question of what is law. This distinction is made for almost all the terms that are used as a
generalization. Border line cases also differ in terms why they are considered borderline. For
example, some cases might be so complex that some parts of its constituents may not fit
within the generalization. At other times, all aspects of the generalization may not be
contained within the term.

Ultimately, Hart defers from giving a concrete answer to what he considers law is. He says,
that not until we understand what has puzzled the legal philosophers so much about law, can
we be in a position to define law.

Three Recurrent Issues

Here he tries to find out what has troubled legal philosophers for so long about law. There are
three recurrent questions. They are –

1) How are law and legal obligation different from and related to orders backed by
threats?
2) How is law different from and how is it related to moral obligation?
3) How far is the law an element of rules?

One of the reasons that the first two questions arise is because the law has a tendency make a
form of conduct obligatory and not just optional. Most often the obligatory is part is imposed
through penal sanctions. Yet, this may not form the essence of what is law. Even a gunman
can give an order at gun point. Does his orders become law then?

Many laws are but a concretization of morality. What unites morality and law further is the
idea of justice. In the case of law, justice occupies a strange space. Justice is seen as being
done through a law, yet we also talk about the injustice of the law. Philosophers who see law
as nothing but morality confuse the diverse requirements and the obligations of the two.
Why? Because even if a law is unjust it would still be considered a law. Morality on the other
hand (the kind that is timeless) always is imbued with the idea of justice.
It is true that for anyone who subscribes to the fact that laws are nothing but orders backed by
threats or to the fact that law is nothing but morality also believe that rules is how law does
that. Yet, there are doubts and uncertainties regarding what are rules. How does one know
that rules exist? What are rules?

Rules can be social or legal. When we think about the social, there may be just a convergence
of behaviour or there may be a social sanction involved. It is only the latter cases where one
may use the word rule or the terms associated with it like ought, must, and should. Similarly,
in the case of law, deviations from it leads to a penal sanction. However, when social rules
are breached the penalisation does not have a definite character as opposed to law.

However, why is the breach of a legal rule punished? When social rules are breached, one
punishes because of the feelings that it generates within the mind of the onlooker. But when a
judge punishes for the breach of a legal rule, he takes the rule as a guide and the breach as his
reason or justification for punishment. Although, this statement has to be qualified because
there’s an overlap. What is it about rules apart from predictability of punishment and reproof
of those deviating from it that distinguishes rules from group habits? Some people at this
point give up. They say that all there is above predictability of punishment and reproof of
those deviating from it, are our own feelings of compulsion to behave according to rules.

Do courts apply rules or merely pretend to do so? Why? Well in most clear cases rules are
applied without there being any problem. Yet, what about the penumbra of such cases? Cases
where arguments can be made for both the sides? How do rules come into picture there? Does
this not deviate from the nature of rules? Further, any interpretation by the court is not final
and can always be overturned.

Definition

The chief concern of most speculations about the nature of law has been to answer and find
the interconnection among the three issues defined in section 2. In this section, Hart tells us
that most philosophers have used definitions as a tool to find out about the nature of law. Hart
complicates this analysis and tells us how even trying to find a standardized definition of law
is inadequate in trying to understand the nature of law because again, the analysis depends on
the words we use to define law and generally speaking, the words associated with law has an
ambiguity about them since there are no close substitutes for what they represent and even
they themselves have an ambiguity about them. For example, the word rule, has a different
nature when used socially and legally (why we enforce rules differs depending on social and
legal association). Just to clarify the point about closely associated terms used with
definitions, Hart uses the example of an elephant or triangle to say that defining them is easy
because the words used with them can be understood by substituting them for a different
word and because their meaning is relatively unambiguous. This is not the same for law.

Chapter 2 – Laws, Commands, and Orders

Key Words – Command vs Order vs Law, imperative mood, internal consistency,

continuing threat, supremacy, independence, enduring character, sovereignty, not
addressed to anyone in particular but of a general nature, habitual obedience though
there is no conclusion as to how many people have to obey the commands/rules (using
them in shorthand way even though they may not fully represent the idea behind what
is law) in order for that to become law.

Main Idea – Here Hart distinguishes law from, commands, and orders. He does this to
complicate the jurisprudential theory given by JL Austin (essentially that Law is
nothing but a command by a sovereign) and to further our understanding about the
nature of law.

Chapter 3 – The Variety of Laws (Short summary found at the end of the chapter)

The theory of law as coercive orders meets at the outset with the objection that there are
varieties of law found in all systems which, in three principal respects, do not fit this
description. First, even a penal statute, which comes nearest to it, has often a range of
application different from that of orders given to others; for such a law may impose duties on
those who make it as well as on others. Secondly, other statutes are unlike orders in that they
do not require persons to do things, but may confer powers on them; they do not impose
duties but offer facilities for the free creation of legal rights and duties within the coercive
framework of the law. Thirdly; though the enactment of a statute is in some ways analogous
to the giving of an order, some rules of law originate in custom and do not owe their legal
status to any such conscious law-creating act. To defend the theory against these objections a
variety of expedients have been adopted. The originally simple idea of a threat of evil or
'sanction' has been stretched to include the nullity of a legal transaction; the notion of a legal
rule has been narrowed so as to exclude rules which confer powers, as being mere fragments
of law; within the single natural person of the legislator whose enactments are self-binding
two persons have been discovered; the notion of an order has been extended from a verbal to
a 'tacit' expression of will, consisting in non-interference with orders given by subordinates.
Notwithstanding the ingenuity of these devices, the model of orders backed by threats
obscures more of law than it reveals; the effort to reduce to this single simple form the variety
of laws ends by imposing upon them a spurious uniformity. Indeed, to look for uniformity
here may be a mistake, for, as we shall argue in Chapter V, a distinguishing, if not the
distinguishing, characteristic of law lies in its fusion of different types of rule.