CHAPTER FOUR:

LAW AS THE UNION OF PRIMARY AND SECONDARY RULES

H.L.A. Hart’s theory represents the present state of legal positivism today. This does not
mean that no improvements have been made since his theory was first formulated and
presented to the public in a complete form in 1961. It is simply that these improvements
have been minor. They do not pose a challenge to his system and in fact can be
incorporated within it. The content of the theory remains in accordance with Hart’s basic
original intuition that law comprises a union of primary and secondary rules.

I. METHODOLOGY

Hart’s methodology can be divided into a theory of definition and a theory of law. He
greatly developed both topics and his methodology, just like his version of legal positivism,
remains the dominant method of analytic philosophy today.

A. Theory of Definition

Hart first introduced his theory of definitions in his inaugural lecture as Holder of the Chair of
Jurisprudence at Oxford in his article entitled: “Definition and Theory in Jurisprudence.” He
formulated the problem of his article thus:

“Questions such as those I have mentioned, ‘What is a State?’, ‘What is the

law?’, ‘What is a right?’, have great ambiguity. The same form of words may
be used to demand a definition or the cause or the purpose or the justification
or the origin of a legal or political institution. But if, in the effort to free them
from this risk of confusion with other questions, we rephrase these requests
for definitions as ‘What is the meaning of the word “State”?’, ‘What is the
meaning of the word “right”?’, those who ask are apt to feel uneasy, as if this
had trivialized their question. For what they want cannot be got out of a
dictionary, and this transformation of their question suggests it can. This
uneasiness is the expression of an instinct which deserves respect: it
emphasizes the fact that those who ask these questions are not asking to be
taught how to use words in the correct way. This they know and yet are still
puzzled. Hence it is no answer to this type of question merely to tender
examples of what are correctly called rights, laws, or corporate bodies, and to
tell the questioner if he is still puzzled that he is free to abandon the public
convention and use words as he pleases. For the puzzle arises from the fact
that though the common use of these words is known, it is not understood;
and it is not understood because compared with most ordinary words these
legal words are in different ways anomalous. Sometimes, as with the word
‘law’ itself, one anomaly is that the range of case to which it is applied has a
diversity which baffles the initial attempt to extract any principle behind the
application, yet we have the conviction that even here there is some principle
and not an arbitrary convention underlying the surface differences; so that
whereas it would be patently absurd to ask for elucidation of the principle in
accordance, with which different men are called Tom, it is not felt absurd to
ask why, within municipal law, the immense variety of different types of
rules are called law, nor why municipal law and international law, in spite of
striking differences, are so called.”1

1
H.L.A. Hart, “Definition and Theory in Jurisprudence,” Essays in Jurisprudence and Philosophy, Oxford:
Clarendon Press, 1983, pp. 21-22.
Just as Kelsen, Hart was wary of political bias infecting his analysis of law. He called this
mistaken methodology, the anomaly of “theory growing on the back of definitions.”
Consequently he strove for neutrality.

“Hence, though theory is to be welcomed, the growth of theory on the back of

definition is not. Theories so grown, indeed, represent valuable efforts to
account for many puzzling things in law; and among these is the great
anomaly of legal language—our inability to define its crucial words in terms of
ordinary factual counterparts. But here I think they largely fail because their
method of attack commits them all, in spite of their mutual hostility, to a form
of answer that can only distort the distinctive characteristics of legal
language.”2

His definition of a ‘legal right’ is therefore as follows:

“I would, therefore, tender the following as an elucidation of the expression ‘a

legal right’:

(1) A statement of the form ‘X has a right’ is true if the following conditions
are satisfied:

(a) There is in existence a legal system.

(b) Under a rule or rules of the system some other person Y is, in the
events which have happened, obliged to do or abstain from some action.
(c) This obligation is made by law dependent on the choice either of X
or some other person authorized to act on his behalf so tahe either Y is bound
to do or abstain from some action only if X (or some authorized person)
chooses otherwise.

(2) A statement of the form ‘X has a right’ is used to draw a conclusion of law
in a particular case which falls under such rules.”3

B. Legal Theory

Hart’s methodology may be considered as a combination of conceptual analysis and

descriptive sociology. Indeed his book, The Concept of Law provides an elucidation of these
methods in his attempt to analyze the concept “law”.

“My aim in this book has been to further the understanding of law, coercion,
and morality as different but related social phenomena. Though it is primarily
designed for the student of jurisprudence, I hope it may also be of use to
those whose chief interests are in moral and political philosophy, or in
sociology, rather than in law. The lawyer will regard the book as an essay in
analytical jurisprudence, for it is concerned with the clarification of the
general framework of legal thought, rather than with the criticism of law or
legal policy. Moreover, at many points, I have raised questions which may
well be said to be about the meaning of words. Thus I have considered: how
‘being obliged’ differs from ‘having an obligation’: how the statement that a
rule is a valid rule of law differs from a prediction of the behaviour of officials;
what is meant by the assertion that a social group observes a rule and how
this differs from and resembles the assertion that its members habitually do
certain things. Indeed, one of the central themes of the book is that neither
2
Id., pp. 25-26.
3
Id., p. 35.

80
 law nor any other form of social structure can be understood without an
appreciation of certain crucial distinctions between two different kinds of
statements, which I have called ‘internal’ and ‘external’ and which can both
be made whenever social rules are observed.

Notwithstanding its concern with analysis the book may also be regarded as
an essay in descriptive sociology; for the suggestion that inquiries into the
meaning of words merely throw light on words is false. Many important
distinctions, which are not immediately obvious, between types of social
situation or relationships may best be brought to light by an examination of
the standard uses of the relevant expressions and of the way in which these
depend on a social context, itself often left unstated. In this field of study it is
particularly true that we may use, as Professor J. L. Austin said, ‘a sharpened
awareness of words to sharpen our perception of the phenomena.”4

He aims to answer the question “What is law?,” noting that the question gives rise to a
number of persistent perplexities.

“Few questions concerning human society have been asked with such
persistence and answered by serious thinkers in so many diverse, strange,
and even paradoxical ways as the question ‘What is law?’ Even if we confine
our attention to the legal theory of the past 150 years and neglect classical
and medieval speculation about the ‘nature’ of law, we s hall find a situation
not paralleled in any other subject systematically studies as a separate
academic discipline. No vast literature is dedicated to answering the
questions ‘What is chemistry?” or “What is medicine?’, as it is to the question
‘What is law?’ A few lines on the opening page of an elementary textbook is
all that the student of these sciences is asked to consider; and the answers he
is given are of a very different kind from those tendered to the student of law.
No one has thought it illuminating or important to insist that medicine is ‘what
doctors do about illnesses’, or ‘a prediction of what doctors will do’, or to
declare that what is ordinarily recognized as a characteristic, central part of
chemistry at all. Yet, in the case of law, things which at first sight look as
strange as these have often been said, and not only said but urged with
eloquence and passion, as if they were revelations of truths about law, long
obscured by gross misrepresentations of its essential nature.”5

These perplexities persist despite the fact that most people know what the law means and
can identify a law very readily and unproblematically. It concerns a deeper, more disturbing
unease and disconcert.

“When we reflect on the quite general ability of people to recognize and cite
examples of laws and on how much is generally known about a standard case
of a legal system, it might seem that we could easily put an end to this
persistent question, ‘What is law?’, simply by issuing a series of reminders of
what is already familiar. Why should we not just repeat the skeleton account
of salient features of a municipal legal system which, perhaps optimistically,
we put . . . into the mouth of an educated man? We can then simply say,
‘Such and such is the standard case of what is meant by “law” and “legal
system”; remember that besides these standard cases you will also find
arrangements in social life which, while sharing some of these salient
features, also lack others of them. These are disputed cases where there can
be no conclusive arguments for or against their classification.’
4
H.L.A. Hart, The Concept of Law, Oxford: Clarendon Press, 1961, “Preface,” p. v.
5
Id., p. 1.

81
 Such a way with the question would be agreeably short. But it would have
nothing else to recommend it. For . . . it is clear that those who are most
perplexed by the question ‘What is law?’ have not forgotten and need no
reminder of the familiar facts which this skeleton answer offers them. The
deep perplexity which has kept alive the question, is not ignorance or
forgetfulness or inability to recognize the phenomena to which the word ‘law’
commonly refers.”6

There are recurrent themes regarding the question of the nature of law, and it is the
resolution to these themes which provides the key to the answer to the question.

“For there are certain recurrent main themes which have formed a constant
focus of argument and counter-argument about the nature of law, and
provoked exaggerated and paradoxical assertions about law such as those we
have already cited. Speculation about the nature of law has a long and
complicated history; yet in retrospect it is apparent that it has centered
almost continuously upon a few principal issues. These were not gratuitously
chosen or invented for the pleasure of academic discussion; they concern
aspects of law which seem naturally, at all times, to give rise to
misunderstanding, so that confusion and a consequent need of greater clarity
about them may coexist even in the minds of thoughtful men with a firm
mastery of a knowledge of law.”7

The first issue is connected with the concept of obligation.

“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. Yet this apparently simple characteristic of law
is not in fact a simple one; for within the sphere of non-optional obligatory
conduct we can distinguish different forms. The first, simplest sense in which
conduct is no longer optional, is when one man is forced to do what another
tells him, not because he is physically compelled in the sense that his body is
pushed or pulled about, but because the other threatens him with unpleasant
consequences if he refuses. The gunman orders his victim to hand over his
purse and threatens to shoot if he refuses; if the victim complies we refer to
the way in which he was forced to do so by saying that he was obliged to do
so. To some it has seemed clear that in this situation where one person gives
another an order backed by threats, and in this sense of ‘oblige’, obliges him
to comply wit, we have the essence of law, or at least ‘the key to the science
of jurisprudence’. This is the starting-point of Austin’s analysis by which so
much English jurisprudence has been influenced.

There is of course no doubt that a legal system often presents this aspect
among others. A penal statute declaring certain conduct to be an offence and
specifying the punishment to which the offender is liable, may appear to be
the gunman situation writ large; and the only difference to be the relatively
minor one, that in the case of statutes, the orders are addressed generally to
a group which customarily obeys such orders. But attractive as this reduction
of the complex phenomena of law to this simple element may seem, it has
been found, when examined closely, to be a distortion and a source of
confusion even in the case of a penal statute where an analysis in these
simple terms seems most plausible. How then do law and legal obligation
6
Id., pp. 4-5.
7
Id., pp. 5-6.

82
 differ from, and how they are related to, orders backed by threats? This at all
times has been one cardinal issue latent in the question ‘What is law?’.”8

The next recurring issue is also connected with the issue of obligation.

“Moral rules impose obligations and withdraw certain areas of conduct from
the free option of the individual to do as he likes. Just as a legal system
obviously contains elements closely connected with the simple case of orders
backed by threats, so equally obviously it contains elements closely
connected with certain aspects of morality. In both cases alike there is a
difficulty in identifying precisely the relationship and a temptation to see in
the obviously close connection an identity. Not only do law and morals share
a vocabulary so that there are both legal and moral obligations, duties, and
rights; but all municipal legal systems reproduce the substance of certain
fundamental moral requirements. Killing and the wanton use of violence are
not only the most obvious examples of the coincidence between the
prohibitions of law and morals. Further, there is one idea, that of justice which
seems to unite both fields: it is both a virtue specially appropriate to law and
the most legal of the virtues. We think and talk of ‘justice according to law’
and yet also of the justice and injustice of the laws.

These facts suggest the view that law is best understood as a ‘branch’ of
morality or justice and that its congruence with the principles of morality or
justice rather than its incorporation of orders and threats is of its ‘essence’.
This is the doctrine characteristic not only of scholastic theories of natural law
but of some contemporary legal theory which is critical of the legal
‘positivism’ inherited from Austin. Yet here again theories that make this
close assimilation of law to morality seem, in the end, often to confuse one
kind of obligatory conduct with one another, and to leave insufficient room for
differences in kind between legal and moral rules and for divergences in their
requirements. These are at least as important as the similarity and
convergence which we may also find. So the assertion that ‘an unjust law is
not a law’ has the same ring of exaggeration and paradox, if not falsity, as
‘statutes are not laws’ or ‘constitutional law is not law.’ It is characteristic of
the oscillation between extremes, which make up the history of legal theory,
that those who have seen in the close assimilation of law and morals nothing
more than a mistaken inference from the fact that law and morals share a
common vocabulary of rights and duties, should have protested against it in
terms equally exaggerated and paradoxical. ‘The prophecies of what the
courts will do in fact, and nothing more pretentious, are what I mean by the
law.’”9

The third recurrent issue concerns the law’s connection with rules.

“The third main issue perennially prompting the question ‘What is law?’ is a
more general one. At first sight it might seem that the statement that a legal
system consists, in general at any rate, of rules could hardly be doubted or
found difficult to understand. But those who have found the key to the
understanding of law in the notion of orders backed by threats, and those who
have found it in its relation to morality or justice, alike speak of law as
containing, if not consisting largely of, rules. Yet dissatisfaction, confusion,
and uncertainty concerning this seemingly unproblematic notion underlies
much of the perplexity about the nature of law. What are rules? What does it
8
Id., pp. 6-7; italics Hart’s.
9
Id., pp. 7-8; italics Hart’s.

83
 mean to say that a rule exists? Do courts really apply rules or merely pretend
to do so? Once the notion is queried, as it has been especially in the
jurisprudence of this century, major divergencies in opinion appear.”10

There are then, to Hart, three recurrent issues of law.

“Here then are the three recurrent issues: How does law differ from and how
is it related to orders backed by threats? How does legal obligation differ
from, and how is it related to, moral obligation? What are rules and to what
extent is law an affair of rules? To dispel doubt and perplexity on these three
issues has been the chief aim of most speculation about the ‘nature’ of law. It
is possible now to see why this speculation has usually been conceived as a
search for the definition of law, and also why the familiar forms of definition
have done so little to resolve the persistent difficulties and doubts. Definition,
as the word suggests, is primarily a matter of drawing lines or distinguishing
between one kind of thing and another, which language marks off by a
separate word. The need for such a drawing of lines is often felt by those who
are perfectly at home with the day-to-day use of the word in question, but
cannot state or explain the distinctions which, they sense, divide one kind of
thing from another. All of us are sometimes in this predicament: it is
fundamentally that of the man who says, ‘I can recognize an elephant when I
see one but I cannot define it.’ The same predicament was expressed by
some famous words of St. Augustine about the notion of time. ‘What then is
time? If no one asks me I know: if I wish to explain it to one that asks I know
not.’ It is in this way that even skilled lawyers have felt that, though they
know the law, there is much about law and its relation to other things they
cannot explain and do not fully understand. Like a man who can get from one
point to another in a familiar town but cannot explain or show others how to
do it, those who press for a definition need a map exhibiting clearly the
relationships dimly felt to exist between the law they know and other
things.”11

But it is not a definition a legal theorist is looking for.

“There are of course many kinds of definition besides the very simple
traditional form which we have discussed, but it seems clear, when we recall
the character of the three main issues which we have identified as underlying
the recurrent question ‘What is law?’, that nothing concise enough to be
recognized as a definition could provide a satisfactory answer to it. The
underlying issues are too different from each other and too fundamental to be
capable of this sort of resolution. This the history of attempts to provide
concise definitions has shown. Yet the instinct which has often brought these
three questions together under a single question or request for definition has
not been misguided; for, as we shall show in the course of this book, it is
possible to isolate and characterize a central set of elements which form a
common part of the answer to all three.”12

If not a definition, what then is the theorist after?

“For its purpose is not to provide a definition of law, in the sense of a rule by
reference to which the correctness of the use of a word can be tested; it is to
advance legal theory by providing an improved analysis of the distinctive
10
Id. p. 8; italics Hart’s.
11
Id., pp. 13-14.
12
Id., p. 16.

84
 structure of a municipal legal system and a better understanding of the
resemblances and differences between law, coercion, and morality, as types
of social phenomena.”13

Consequently, I now turn to the substantive aspects of Hart’s theory, wherein he attempts to
answer the question ‘What is law?’ by means of resolving the three recurrent issues of law
satisfactorily. To the substance of his work therefore, I now proceed.

II. SOCIAL RULES

Rules provide the focus of Hart’s theory. In explaining a social rule, he first distinguishes a
rule from a habit. In other words, he is concerned to explain when a habit becomes a rule.
For example, members of a particular community engage in the habit of shaking hands as a
form of greeting. Nobody told them to do so. Perhaps one person did it to another and the
practice caught on. At that point, the practice was only a habit, and not yet a rule. It
becomes a rule when it has acquired a certain degree of importance that the members feel
it to be an obligation to shake hands upon meeting and consider people rude who refuse to
do it. Prior to that point, it was merely a practice or custom that most people complied with;
in short, merely a habit. There was no feeling or sense of obligation that they had to shake
hands upon meeting people.

From this insight, Hart distinguishes a habit from a rule in three important ways.

“First, for the group to have a habit it is enough that their behavior in fact
converges. Deviation from the regular course need not be a matter for any
form of criticism. But such general convergence or even identity of behaviour
is not enough to constitute the existence of a rule requiring that behaviour:
where there is such a rule deviations are generally regarded as lapses or
faults open to criticism, and threatened deviations meet with the pressure for
conformity, though the forms of criticism and pressure differ with different
types of rule.

Secondly, where there are such rules, not only is such criticism in fact made
but deviation from the standard is generally accepted as a good reason for
making it. Criticism deviation is regarded as legitimate or justified in this
sense, as are demands for compliance with the standard when a deviation is
threatened. Moreover, except by a minority of hardened offenders, such
criticism and demands are generally regarded as legitimate, or made with
good reason, both by those who make them and those to whom they are
made. How many of the group must in these various ways treat the regular
mode of behavior as a standard of criticism, and how often and for how long
they must do so to warrant the statement that the group has a rule, are not
definite matters; they need not worry us more than the question as to the
number of hairs a man may have and still be bald. We need only remember
that the statement that a group has a certain rule is compatible with the
existence of a minority who not only break the rule but refuse to look upon it
as a standard either for themselves or others.

The third feature distinguishing social rules from habits is implicit in what has
already been said, but it is one so important and so frequently disregarded or
misrepresented in jurisprudence that we shall elaborate it here. It is a feature
which throughout this book we shall call the internal aspect of rules. When a
habit is general in a social group, this generality is merely a fact about the
observable behaviour of most of the group. In order that there should be such
13
Id., pp. 16-17.

85
 a habit no members of the group need in any way think of the general
behaviour, or even know that the behaviour in question is general; still less
need they strive to teach or intend to maintain it. It is enough that each for
his part behaves in the way that others also in fact do. By contrast, if a social
rule is to exist some at least must look upon the behaviour in question as a
general standard to be followed by the group as a whole. A social rule has an
‘internal’ aspect, in addition to the external aspect which it shares with a
social habit and which consists in the regular uniform behaviour which an
observer could record.”14

Therefore, there exist three characteristics in order for a social rule to exist. First, there
must exist such a convergence of behavior so that deviations from the standard of behavior
call not only for criticism among those who engage in the practice against those who do not
behave in accordance with the way the majority behaves, but also calls for conformity
against the deviators. Secondly, appeal to the standard is a good reason for behaving in
accordance with the standard. Finally, there must exist what Hart calls the internal aspect.

Hart elaborates on this internal aspect. It is not simply a matter of feelings, of feeling
bound, for example. Rather it is a critical reflective attitude:

“The internal aspect of rules is often misrepresented as a mere matter of

‘feelings’ in contrast to externally observable physical behaviour. No doubt,
where rules are generally accepted by a social group and generally supported
by social criticism and pressure for conformity, individuals may often have
psychological experiences analogous to those of restriction or compulsion.
When they say they ‘feel bound’ to behave in a certain ways they may indeed
refer to these experiences. But such feelings are neither necessary nor
sufficient for the existence of ‘binding’ rules. There is no contradiction in
saying that people accept certain rules but experience no such feelings of
compulsion. What is necessary is that there should be a critical reflective
attitude to certain patterns of behaviour as a common standard and that this
should display itself in criticism (including self-criticism), demands for
conformity, and in acknowledgment that such criticism and demands are
justified, all of which find their characteristic expression in the normative
terminology of ‘ought’, ‘must’, and ‘should’, ‘right’ and ‘wrong’.”15

By means of the internal aspect of rules, Hart introduces a method of scientific inquiry, now
referred to as hermeneutic, which adopts an internal attitude towards the phenomenon or
practice the scientist or theorist is investigating.

“This is the context for analysing Hart’s concept of the internal aspect of
rules. The idea is that one cannot understand a social system unless one
understands how the people who created the system or who participate in the
system perceive it. This ‘hermeneutic’ approach—that is, giving priority to
trying to understand how other people perceive their situation is always in
tension with those who want social theory to be more scientific.

The ‘scientific’ approach in social theory would rely only on data that was
‘objective’, data on which different observers would always agree. The
‘scientific’ approach to legal theory might be exemplified in various theorists’
writings: for example, Christopher Columbus Langdell’s view of legal theory as
the search for the system of basic principles within the law, and the American
legal realists (to some extent reacting to Langdell’s views) emphasizing what
14
Id., pp. 54-55.
15
Id., p. 56.

86
 judges ‘actually do’ as contrasted with what they are saying that they are
doing. Hart also specifically mentioned the work of the Scandinavian Legal
Realist Alf Ross, who (according to Hart) ‘claimed that the only method of
representation of the law fit to figure in a modern rational science of law was
one which shared the structure and logic of statements of empirical science.”

Hart’s argument is that whatever advantage a ‘scientific’ approach might

have, it simply is not adequate for a full understanding of law. Law is a social
institution to set up to achieve certain human purposes, and also to give
guidance to citizens. One can only understand purposive behaviour and
normative (rule-following) behaviour if one leaves one’s spectator’s
perspective and tries to understand the perceptions of the participants in the
system, that is, the perceptions of the people who are following the rules, and
who perceive themselves as doing so. In Hart’s terms, to understand ‘any
form of normative social structure’, ‘the methodology of the empirical
sciences is useless; what is needed is a ‘hermeneutic’ method which involves
portraying rule-governed behaviour as it appears to the participants.”16

III. THE KEY TO THE SCIENCE OF JURISPRUDENCE

Hart argued that without the idea of a rule, it was hopeless to elucidate even the most
elementary forms of law. He then explained two kinds of rules:

“It is true that the idea of a rule is by no means a simple one: we have already
seen . . . the need, if we are to do justice to the complexity of a legal system,
to discriminate between two different though related types. Under rules of
the one type, which may well be considered the basic or primary type, human
beings are required to do or abstain from certain actions, whether they wish
to or not. Rules of the other type are in a sense parasitic upon or secondary
to the first; for they 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. Rules
of the first type impose duties; rules of the second type confer powers, public
or private. Rules of the first type concern actions involving physical
movements or changes; rules of the second type provide for operations which
lead not merely to physical movement or change, but to the creation or
variation of duties or obligations.”17

It is Hart’s contention that “in the combination of these two types of rule there lies what
Austin wrongly claimed to have found in the notion of coercive orders, namely, ‘the key to
the science of jurisprudence.’”18

He then conducted a thought experiment in order to find out the key elements to law or a
legal system. He imagined a society without a legislature, courts or officials of any kind. He
referred to it as a social structure with only primary rules of obligation.

“If a society is to live by primary rules alone, there are certain conditions
which, granted a few of the most obvious truisms about human nature and
the world we live in, must clearly be satisfied. The first of these conditions is
that the rules must contain some form of restrictions on the free use of
violence, theft, and deception to which human beings are tempted but which
they must, in general, repress, if they are to coexist in close proximity to each
16
Brian Bix, Jurisprudence: Theory and Context, London: Sweet and Maxwell, 2003, p. 40.
17
Id., pp. 78-79.
18
Id., p. 79.

87
 other. Such rules are in fact always found in primitive societies of which we
have knowledge, together with a variety of others imposing on individuals
various positive duties to perform services or make contributions to the
common life. Secondly, though such a society may exhibit the tension,
already described, beyond those who accept the rules and those who reject
the rules except where fear of social pressure induces them to conform, it is
plain that the latter cannot be more than a minority, if so loosely organized a
society of persons, approximately equal in physical strength, is to endure: for
otherwise those who reject the rules would too little social pressure to fear.
This too is confirmed by what we know of primitive communities where,
though there are dissidents and malefactors, the majority live by the rules
seen from the internal point of view.”19

Such a simple society will suffer from certain defects and will require supplementation in
various ways. The first of these defects is the lack of a rule of recognition.

“In the first place, the rules by which the group lives will not form a system,
but will simply be a set of separate standards, without any identifying or
common mark, except of course that they are the rules which a particular
group of human beings accepts. They will in this respect resemble our own
rules of etiquette. Hence if doubts arise as to what the rules are or as to the
precise scope of some given rule, there will be no procedure for settling this
doubt, either by reference to some authoritative text or to an official whose
declarations on this point are authoritative. For, plainly, such a procedure and
the acknowledgement of either authoritative text or persons involve the
existence of rules of a type different from the rules of obligation or duty which
ex hypothesi are all that the group has. This defect in the simple social
structure of primary rules we may call its uncertainty.”20

There is a second defect, that of staticity.

“A second defect is the static character of the rules. The only mode of change
in the rules known to such a society will be the slow process of growth,
whereby courses of conduct once thought optional become first habitual or
usual, and then obligatory, and the converse process of decay, where
deviation once severely dealt with, are first tolerated and then pass
unnoticed. There will be no means, in such a society, of deliberately adopting
the rules to changing circumstances, either by eliminating old rules or
introducing new ones: for, again the possibility of doing this presupposes the
existence of rules of a different type from the primary rules of obligation by
which alone society lives. In an extreme case the rules may static in a more
drastic sense. This, though never perhaps fully realized in any actual
community, is worth considering because the remedy for it is something very
characteristic of law. Each individual would simply have fixed obligations or
duties to do or abstain from doing certain things. It might indeed be very
often the case that others would benefit from the performance of these
obligations yet if there are only primary rules of obligation they would have no
power to release those bound from performance or to transfer to others the
benefits which would accrue from performance. For such operations of
release or transfer create changes in the initial positions of individuals under
the primary rules of obligation, and for these operations to be possible there
must rules of a sort different from the primary rules.”21
19
Id., p. 89.
20
Id., p. 90; italics Hart’s.
21
Id., pp. 90-91; italic’s Hart’s.

88
The third defect is that of inefficiency.

“The third defect of this simple form of social life is the inefficiency. Disputes
as to whether an admitted rule has or has not been violated will always occur
and will, in any but the smallest societies, continue interminably, if there is no
agency specially empowered to ascertain finally, and authoritatively, the fact
of violation. Lack of such final and authoritative determinations is to be
distinguished from another weakness associated with it. This is the fact that
punishments for violations of the rules, and other forms of social pressure
involving physical effort or the use of force, are not administered by a special
agency but are left to the individuals affected or to the group at large. It is
obvious that the waste of time involved in the group’s unorganized efforts to
catch and punish offenders, and the smoldering vendettas which may result
from self help in the absence of an official monopoly of ‘sanctions’, may be
serious. The history of law does, however, strongly suggest that the lack of
official agencies to determine authoritatively the fact of violation of the rules
is a much more serious defect; for many societies have remedies for this
defect long before the other.”22

The remedy to these defects lies in supplementing the primary rules of obligation with
secondary rules.

“(Secondary) rules have important features in common and are connected in

various ways. Thus they may all be said to be on a different level from the
primary rules, for they are all about such rules; in the sense that while primary
rules are concerned with the actions that individuals must or must not do,
these secondary rules are all concerned with the primary rules themselves.
They specify the ways in which the primary rules may be conclusively
ascertained, introduced, eliminated, varied, nd the fact of their violation
conclusively determined.”23

It constitutes a step from the pre-legal into the legal world. “The introduction of the remedy
for each defect might, in itself, be considered a step from the pre-legal into the legal world;
since each remedy brings with it many elements that permeate law: certainly all three
remedies together are enough to convert the regime of primary rules into what is
indisputably a legal system.”24

To the defect of uncertainty, Hart supplements the simple social structure of primary rules
with the rule of recognition.

“The simplest form of remedy for the uncertainty of the regime of primary
rules is the introduction of what we shall call a ‘rule of recognition’. This will
specify some feature or features possession of which by a suggested rule is
taken as a conclusive affirmative indication that it is a rule of the group to be
supported by the social pressure it exerts. The existence of such a rule may
take any of a huge variety of forms, simple or complex. It may, as in the early
law of many societies, by no more than an authoritative list or text of the rules
is to be found in a written document or carved on some public monument. No
doubt as a matter of history this step from the pre-legal to the legal may be
accomplished in distinguishable stages, of which the first is the mere
reduction to writing of hitherto unwritten rules. This is not itself the crucial
22
Id., p. 91, italics Hart’s.
23
Id., p. 92, italics Hart’s.
24
Id., p. 91, italics Hart’s.

89
 step, though it is a very important one: what is crucial is the
acknowledgement of reference to the writing or inscription as authoritative,
i.e., as the proper way of disposing of doubts as to the existence of the rule.
Where there is such an acknowledgement there is a very simple form of a
secondary rule: a rule for conclusive identification of the primary rules of
obligation.

In a developed legal system the rules of recognition are of course more

complex; instead of identifying rules exclusively by reference to a text or list
they do so by reference to some general characteristic possessed by the
primary rules. 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.
Moreover, where more than one of such general characteristics are treated as
identifying criteria, provision may be made for their possible conflict by their
arrangement in an order of superiority, as by the common subordination of
custom or precedent to statute, the latter being a ‘superior source’ of law.
Such complexity may make the rules of recognition in a modern legal system
seem very different from the simple acceptance of an authoritative text: yet
even in this simplest form, such a rule brings with it many elements
distinctive of law. By providing an authoritative mark it introduces, although
in embryonic form, the idea of a legal system: for the rules are now not just a
discrete unconnected set but are, in a simple way, unified. Further, in the
simple operation of identifying a given rule as possessing the required feature
of being an item on an authoritative list of rules we have the germ of the idea
of legal validity.”25

The second remedy is that of rules of change.

The remedy for the static quality of the regime of primary rules consists in the
introduction of what we shall call ‘rules of change’. The simplest form of such
a rule is that which empowers an individual or body of persons to introduce
new primary rules for the conduct of the life of the group, or of some class
within it, and to eliminate old rules. As we have already argued . . . it is in
terms of such a rule, and not in terms of orders backed by threats, that the
ideas of legislative enactment and repeal are to be understood. Such rules of
change may be very simple or very complex: the powers conferred may be
unrestricted or limited in various ways: and the rules may, besides specifying
the persons who are to legislate, define in more or less rigid terms the
procedure to be followed in legislation. Plainly, there will be a very close
connexion between the rules of change and rules of recognition: for where the
former exists the latter will necessarily incorporate a reference to legislation
as an identifying feature of the rules, though it need not refer to all the details
of procedure involved in legislation. Usually some official certificate or official
copy will, under the rules of recognition, be taken as a sufficient proof of due
enactment. Of course if there is a social structure so simple that the only
‘source of law’ is legislation, the rule of recognition will simply specify
enactment as the unique identifying mark or criterion of validity of the rules.
This will be the case for example in the imaginary kingdom of Rex I depicted
in Chapter IV: there the rule of recognition would simply be that whatever Rex
I enacts is law.”26

To the third defect of inefficiency, there correspond the rules of adjudication as a remedy.

25
Id., pp. 92-93; italics Hart’s.
26
Id., p. 93; italics Hart’s.

90
 “The third supplement to the simple regime of primary rules, intended to
remedy the inefficiency of the social pressure, consists of secondary rules
empowering individuals to make authoritative determinations of the question
whether on a particular occasion, a primary rule has been broken. The
minimal form of adjudication consists in such determinations, and we shall call
the secondary rules which confer the power to make them ‘rules of
adjudication’. Besides identifying the individuals who are to adjudicate, such
rules will also define the procedure to be followed. Like the other secondary
rules these are on a different level from the primary rules: though they may
be reinforced by further rules imposing duties on judges to adjudicate, they do
not impose duties but confer judicial powers and a special status on judicial
declarations about the breach of obligations. Besides these resemblances to
the other secondary rules, rules of adjudication have intimate connexion with
them. Indeed, a system which has rules of adjudication is necessarily also
committee to a rule of recognition of an elementary and imperfect sort. This
is so because, if courts are empowered to make authoritative determinations
of the fact that a rule has been broken, these cannot avoid being taken as
authoritative determinations of what the rules are. So the rule which confers
jurisdiction will also be a rule of recognition, identifying the primary rules
through the judgments of the courts and these judgments will become a
‘source’ of law. It is true that this form of rule of recognition, inseparable from
the minimum form of jurisdiction, will be very imperfect. Unlike an
authoritative text or a statute book, judgments may not be couched in general
terms and their use as authoritative guides to the rules depends on a
somewhat shaky inference from particular decisions, and the reliability of this
must fluctuate both with the skill of the interpreter and the consistency of the
judges.”27

This union of primary and secondary rules comprises both the heart of a legal system such
that Hart called it the “key to the science of jurisprudence,” but also a powerful conceptual
tool by which Hart will proceed to analyze the concepts of law and of legal systems.

“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.

Not only are the specifically legal concepts with which the lawyer is
professionally concerned, such as those of obligation and rights, validity and
source of law, legislation and jurisdiction, and sanction, best elucidated in
terms of this combination of elements. The concepts (which bestride both law
and political theory) of the state, of authority, and of an official require a
similar analysis if the obscurity which still lingers about them to be dissipated.
The reason why an analysis in these terms of primary and secondary rules has
this explanatory power is not far to seek. Most of the obscurities and
distortions surrounding legal and political concepts arise from the fact that
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 behaviour
conforming to rules, but use the rules as standards for the appraisal of their
own and others’ behaviour. This requires more detailed attention in the
analysis of legal and political concepts than it has usually received. Under the
simple regime of primary rules the internal point of view is manifested in its
simplest form, in the use of those rules as the basis of criticism, and as the
27
Id., pp. 94-95, italics Hart’s.

91
 justification of demands for conformity, social pressure, and punishment.
Reference to this most elementary manifestation of the internal point of view
is required for the analysis of the basic concepts of obligation and duty. With
the addition to the system of secondary rules, the range of what is said and
done from the external point of view is much extended and diversified. With
this extension comes a whole set of new concepts and they demand a
reference to the internal point of view for their analysis. These include the
notions of legislation, jurisdiction, validity and, generally, of legal powers,
private and public. 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: to do justice to their distinctive,
internal aspect we need to see the different ways in which the law-making
operations of the legislator, the adjudication of a court, the exercise of private
or official powers, and other ‘acts-in-the-law’ are related to secondary rules.”28

IV. THE RULE OF RECOGNITION

Hart’s rule of recognition plays the same role as the basic norm in Kelsen’s coercive order
does. It provides the criteria by which the validity of other rules of the system is assessed.
At this stage, the distinction between the ultimacy of the rule of recognition and the
supremacy of one of its criteria deserves attention. Hart has this to say about the latter:
“We may say that a criterion of legal validity or source of law is supreme if rules identified
by reference to it are still recognized as rules of the system, even if they conflict with rules
identified by reference to the other criteria, whereas rules identified by reference to the
latter are not so recognized if they conflict with the rules identified by reference to the same
criterion.”29

This is how Hart defines the ultimacy of a rule of recognition.

“The sense in which the rule of recognition is the ultimate rule of a system is
best understood if we pursue a very familiar chain of legal reasoning. If the
question is raised whether some suggested rule is legally valid, we must, in
order to answer the question, use a criterion of validity provided by some
other rule. Is this purported by-law of the Oxfordshire County Council valid?
Yes: because it was made in the exercise of the powers conferred, and in
accordance with the procedure specified, by a statutory order made by the
Minister of Health. At this first stage the statutory order provides the criteria
in terms of which the validity of the by-law is assessed. There may be no
practical need to go farther; but there is a standing possibility of doing so. We
may query the validity of the statutory order and assess its validity in terms of
the statute empowering the minister to make such orders. Finally when the
validity of the statute has been queried and assessed by reference to the rule
that what the Queen in Parliament enacts is law, we are brought to a stop in
inquiries concerning validity: for we have reached a rule which, like the
intermediate statutory order and statute, provides criteria for the assessment
of the validity of other rules; but it is also unlike them in that there is no rule
providing criteria for the assessment of its own legal validity.”30

Moreover, the rule of recognition is not merely presupposed, as Kelsen’s basic norm is, but
its validity is assumed because its existence can be shown as a matter of fact. This was
explained in the previous chapter. In such a manner is its validity and existence
distinguished from the other rules or laws in the legal system. “In this respect, however, as
28
Id., pp. 95-96; italics Hart’s.
29
Id., p. 103.
30
Id., pp. 103-104, italics Hart’s.

92
in others a rule of recognition is unlike other rules of the system. The assertion that it exists
can only be an external statement of fact. For whereas a subordinate rule of a system may
be valid and in that sense ‘exist’ even if it is generally disregarded, the rule of recognition
exists only as a complex, but normally concordant, practice of the courts, officials, and
private persons in identifying the law by referenced to certain criteria. Its existence is a
matter of fact.”31

Hart also distinguishes efficacy from validity in a manner bearing a great similarity with that
of Kelsen.

“Some of the puzzles connected with the idea of legal validity are said to
concern the relation between the validity and the ‘efficacy’ of law. If by
‘efficacy’ is meant that the fact that a rule of law which requires certain
behaviour is obeyed more often than not, it is plain that there is no necessary
connexion between the validity of any particular rule and its efficacy, unless
the rule of recognition of the system includes among its criteria, as some do,
the provision (sometimes referred to as a rule of obsolescence) that no rule is
to count as a rule of the system if it has long ceased to be efficacious.

From the inefficacy of a given rule, which may or may not count against its
validity, we must distinguish a general disregard of the rules of the system.
This may be so complete in character and so protracted that we should say, in
the case of a new system, that it had never established itself as the legal
system of a given group, or, in the case of a once-established system, that it
had ceased to be the legal system of the group. In either case, the normal
context or background for making any internal statement in terms of the rules
of the system is absent. In such cases it would be generally pointless either to
assess the rights and duties of particular persons by reference to the primary
rules of a system or to assess the validity of any of its rules by reference to its
rules of recognition. To insist on applying a system of rules which had either
never actually been effective or had been discarded would, except in special
circumstances mentioned below, be as futile as to assess the progress of a
game by reference to a scoring rule which had never been accepted or had
been discarded.

One who makes an internal statement concerning the validity of a particular

rule of the system may be said to presuppose the truth of the external
statement of fact that the system is generally efficacious. For the normal use
of internal statements is in such a context of general efficacy. It would
however be wrong to say that statements of validity ‘mean’ that the system is
generally efficacious. For though it is normally pointless or idle to talk of the
validity of a rule of a system which has never established itself or has been
discarded, none the less it is not meaningless nor is it always pointless. One
vivid way of teaching Roman Law is to speak as if the system were efficacious
still and to discuss the validity of particular rules and solve problems in their
terms; and one way of nursing hopes for the restoration of an old social order
destroyed by revolution, and rejecting the new, is to cling to the criteria of the
old regime. This is implicitly done by the White Russian who still claims
property under some rule of descent which was a valid rule of Tsarist
Russia.”32

Moreover, given the centrality and importance of the rule of recognition, the officials of the
legal system must exhibit the appropriate attitude towards it.
31
Id., pp. 107.
32
Id., pp. 100-101; italics Hart’s.

93
 “(The rule of recognition), if it is to exist at all, must be regarded from the
internal point of view as a public, common standard of correct judicial
decision, and not as something which each judge merely obeys for his part
only. Individual courts of the system though they may, on occasion, deviate
from these rules must, in general, be critically concerned with such deviations
as lapses from standards, which are essentially common or public. This is not
merely a matter of the efficiency or health of the legal system, but is logically
a necessary condition of our ability to speak of the existence of a single legal
system. If only some judges acted ‘for their part only’ on the footing that
what the Queen in Parliament enacts is law, and made no criticism of those
who did not respect this rule of recognition, the characteristic unity and
continuity of a legal system would have disappeared. For this depends on the
acceptance, at this crucial point, of common standards of legal validity. In the
interval between these vagaries of judicial behaviour and the chaos which
would ultimately ensue when the ordinary man was faced with contrary
judicial orders, we would be at a lost to describe the situation. We would be in
the presence of a lusus naturae worth thinking about only because our
awareness of what is often too obvious to be noticed.”33

On the other hand, the citizens need not exhibit such an attitude. Most of them must merely
display what Austin called a ‘habit of obedience’ towards the laws of the legal system.

“Here (in a complex modern state) surely the reality of the situation is that a
great proportion of the ordinary citizens—perhaps a majority—have no
general conception of the legal structure of its criteria of validity. The law
which he obeys is something which he knows of only as ‘the law’. He may
obey it for a variety of different reasons and among them may often, though
not always, be the knowledge that it will be best for him to do so. He will be
aware of the general likely consequences of disobedience: that there are
officials who may arrest him and others who will try him and send him to
prison for breaking the law. So long as the laws which are valid by the
system’s tests of validity are obeyed by the bulk of the population this surely
is all the evidence we need in order to establish that a given legal system
exists.”34

This brings me to discuss the two necessary and sufficient conditions for the existence of a
legal system.

“There are therefore two minimum conditions necessary and sufficient for the
existence of a legal system. On the one hand those rules of behaviour which
are valid according to the system’s criteria of validity must be generally
obeyed, and, on the other hand, its rules of recognition specifying the criteria
of validity and its rules of change and adjudication must be effectively
accepted as common public standards of official behaviour by its officials.
The first condition is the only one which private citizens need satisfy: they
may obey each ‘for his part only’ and from any motive whatsoever; though in
a healthy society they will in fact often accept these rules as common
standards of behaviour and acknowledge an obligation to obey them, or even
trace this obligation to a more general obligation to respect the constitution.
The second condition must also be satisfied by the officials of the system.
They must regard these as common standards of official behaviour and
appraise critically their own and each other’s deviations as lapses. Of course
33
Id., pp. 112-113.
34
Id., pp. 111.

94
 it is also true that besides these there will be many primary rules which apply
to officials in their merely personal capacity which they need only to obey.

The assertion that a legal system exists is therefore a Janus-faced statement

looking both towards obedience by ordinary citizens and to the acceptance by
the officials of the secondary rules as critical common standards of official
behaviour. We need not be surprised at this duality. It is merely the
reflection of the composite character of a legal system as compared with a
simpler decentralized pre-legal form of social structure which consist only of
primary rules. In the simpler structure, since there are no officials, the rules
must be widely accepted as setting critical standards for the behaviour of the
group. If, here, the internap point of view is not widely disseminated there
could not logically be any rules. But where there is a union of primary and
secondary rules, which is, as we have argued, the most fruitful way of
regarding a legal system, the acceptance of the rules as commons standards
for the group may be split off from the relatively passive matter of the
ordinary individual acquiescing in the rules by obeying them for his part alone.
In an extreme case the internal point of view with its characteristic normative
use of legal language (‘This is a valid rule’) might be confused 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 sheeplike; the sheep might end in the slaughter-house. But there
is little reason for thinking that it could not exist or for denying it the title of
the legal system.”35

V. COMMENTS AND CRITICISM

Hart’s theory of law can be criticized on four points. The first concerns his distinction
between primary and secondary rules. The next two are external criticisms due to Dworkin,
who challenged Hart’s claim regarding the existence of a rule of recognition and maintained
that his theory was beset by what he called the semantic sting. Finally, Raz’ internal
criticism faulted his theory for lacking sufficient purity in positivist values by advocating
what was later called an ‘inclusive’ version of positivism, or soft positivism, in contrast to his
‘exclusive’ positivism or hard positivism.

A. The Conflation of the Distinction between Primary and Secondary Rules

Hart’s distinction between primary and secondary rules can be made more precise as he
appears to conflate three different distinctions.

“Hart lays great emphasis on another distinction among rules. In Chapter V

he distinguished primary from secondary rules, and believes that this
distinction furnishes him with ‘the key to the science of jurisprudence’. But
the distinction is uncharacteristically unclear. It seems to be a conflation of at
least three different distinctions. There is a distinction between rules
imposing duties and rules conferring powers; there is a distinction between
simple legal rules and somewhat more sophisticated meta-rules; and there is
the ghost of a positivist distinction between rules concerning actions involving
physical movements or changes, and those which lead to the creation of
duties or obligations.”36

35
Id., pp. 113-114; italics Hart’s.
36
J.R. Lucas, “The Phenomenon of Law,” Law, Morality, and Society, ed. by P.M.S. Hacker and Joseph Raz,
Oxford, Clarendon Press: 1997, pp. 85-98.

95
1. The distinction between rules concerning actions involving physical movements and
those which create duties

It is the social aspect of the rule rather than its physical component which render rules
relevant and significant to law and legal theory.

Laws seldom characterize actions by reference to mere physical movement,

but construe them in a social context and often with reference to the agent’s
intention. Stumbling into you differs from banging into you only in that I
didn’t mean to: if I swat a horse-fly that is about to feast on your sunbathing
thigh, I have not assaulted you, although I may have hurt you as much as if I
had been administering corporal punishment: and physical actions which
would be quite illegal if performed by me on you, would be entirely lawful if
done by a policeman on a suspected criminal resisting arrest. Or, to take a
very different case, my obligation to pay taxes derives from a rule Hart would
reckon as primary, since it requires men to do certain actions whether they
wish to or not, and yet is characteristically discharged by my signing a
cheque, which varies the duties and obligations of a banker. It is a mistake to
try to peel off the social or legal characterization of actions from a basic
description in behaviouristic terms. Most of our actions are social actions,
undertaken for social reasons in a social context, with social consequences
and often endued with a social significance.”37

2. The distinction between rules which impose duties and rules which confer powers

Rules which impose duties and rules which confer powers are not so much distinct as
correlative. Hart also mistakenly implies that one is more fundamental than another, which
is not necessarily the case.

“The distinction between rules which impose duties and rules which confer
powers likewise softens under scrutiny. Not that it is a useless distinction—it
remains a valuable tool for analytic jurisprudence—but it is neither as
fundamental nor as directed as Hart supposes. In spite of the inadequacies he
perceives in Austin’s analysis, and the ways in which having a legal obligation
cannot be reduced to being obliged by the threat of sanctions to act in a
particular fashion. Hart tends to assume that having an obligation is more
fundamental than having a power, so that rules imposing the former are
primary, and those imposing the latter are only the secondary. But really the
rules are correlative. The rules proscribing my driving a self-propelled vehicle
on the public highway, unless I and it are licensed, and the rules prescribing
the procedure for obtaining a driving and a vehicle license interlock. I cannot
explain the one except with reference to the other. So, too, although less
obviously, with Hart’s favourite examples of solemnizing a marriage or making
a will. The laws prohibiting rape, adultery, seduction, and fornication, are
clearly primary rules in Hart’s view, but equally clearly presuppose an already
intelligible concept of marriage—no man, however attractive, can ever hope
to seduce his own wife. Equally, the laws against theft presuppose laws of
property, including therefore laws defining the conditions under which
property may be disposed of. If after Aunt Agatha’s funeral I walk out of her
house with a Sevre dinner service, I am stealing it unless she left it me; and
whether I had stolen it or not might turn on whether her will leaving it me was
valid or not—on whether she had signed it at the top, instead of the bottom
(cf. The Concept of Law, p. 12) or whether the witnesses have seen her sign it
only in a mirror, not being visibly present to her (as in Dorothy Sayer’s
37
Id., p. 87.

96
 Unnatural Death). These examples are, I shall argue, typical. Every primary
rule is correlative with some secondary rules, and vice versa. For rules
imposing duties apply only in certain circumstances and subject to some
exceptions, and since I have control of circumstances, I can take steps to put
myself beyond the scope of the rule or within the ambit of some exception,
and thus possess the power of making it lawful for me to do what I want to do.
To take the most favourable case to Hart’s thesis, even the rule prohibiting
homicide does not apply to soldiers in time of war, persons defending
themselves against violent attack, or executioners carrying out judicial
sentence of death. Jesebel was able to compass Naboth’s death under due
form of law. Laws can be manipulated. Even straightforward prohibitions can
be read as giving guide-lines on how the desired action may be performed
without breaking the law, and thus as conferring powers to restyle the legal
position so as to accomplish one’s purposes. Of course, in some cases such
purposes can be achieved only by devious or dishonest manoeuvres, and the
rule is correctly seen as imposing a duty rather than conferring a power, but
in other cases the emphasis is reversed. So the distinction is valuable. But
just as rules conferring powers would have no point unless somewhere down
the line a person could by their aid bring about some alteration on the bearing
on someone of some rule imposing a duty, so rules imposing duties create
also a web of interlinked rights and powers, which they implicitly confer on
various people. Any system, whether of law or of morality or of social custom,
which imposes duties will also confer rights and powers, and he cannot
reasonably regard the rules imposing the former as more primary than those
conferring the latter.”38

3. The distinction between rules and meta-rules

The criticism of the distinction between rules and meta-rules focus on the rule of
recognition. It is indeed a meta-rule; however, it need not have been formulated as
explicitly and clearly as Hart did. Social circumstances provide the background in which the
rule of recognition, which need not be formulated with perfect explicitness and clarity, can
be specified and identified.

“Hart is at his unhappiest in his controversy with Professor Fuller over the
legal status of wicked edicts enacted by an iniquitous regime. If the defining
property of a law is that it should satisfy the rule of recognition of a regime
whose laws are generally enforced, then the decrees of the Nazis were valid
law, and the only question left is whether it should none the less be
disobeyed. But this is to abstract too much and put on the rule of recognition
more weight than it can properly bear. It is, after all, only a meta-rule, and, as
Hart himself points out, not always fully formulated, and sometimes itself an
object of controversy. The rule of recognition need be neither explicit nor
clear. It was only very gradually that it changed in England, and shifted
sovereignty from the monarch to parliament. It was not clear for centuries
what the fundamental law of the land was, but laws were made, applied, and
enforced none the less, because for the most part king and parliament were
working together rather than in opposition. Legal disputes were much more
about the scope or application of laws rather than their validity. The rule of
recognition is implicit, rather than explicit, and rests upon a number of tacit
understandings about the way in which various functionaries will cooperate
and will be guided by public interests rather than private purposes. It may be
a matter of considerable difficulty to say exactly what the rule of recognition
is. It therefore may not be a very usable criterion of validity. Moreover, meta-
38
Id., pp. 88-89; italics Lucas’.

97
 rules, however useful they may be in remedying the inadequacies of a pre-
legal regime, are ‘in some sense parasitic upon’ primary rules and cannot
stand on their own. Hart makes the point very clear by his analogy with a
scorer in a game. We may, for good reasons, have a scorer and may have the
meta-rule that his decision is final, but this meta-rule operates, and can
operate, only against the background that scoring is something which players
by and large do themselves, and that the scorer is trying to do the same thing
as the players are, and on the whole succeeding. Else the game is different,
and becomes what Hart illuminatingly describes as the game of ‘scorer’s
discretion’. Exactly similar arguments apply to the rule of recognition. It
makes sense only as a development of a pre-legal regime in which most
people know most of the time what their legal rights and duties are, and look
to the civil authorities only to enforce them if need be and to adjudicate the
relatively rare cases of dispute. Provided, but only provided, that the
developed legal system satisfies their requirements, its various meta-rules will
serve a social function and be generally accepted. But if we divorce the meta-
rules from the substantive rules of social intercourse, they no longer fulfil their
role and so cease being the rules they were. So long as rulers are trying to do
the same thing, in regulating social behaviour, as the ordinary members of
society are, and see a developed legal system as an improved version of a
pre-legal regime. But once the tacit understandings which direct the rulers’
activities on lines congruous to the aims of ordinary citizens are dissolved,
and the sole requirement for legal validity is that it should conform to the rule
of recognition, the game has been changed, and we are no longer faced with
a legal system, but a potentially disastrous analogue of scorer’s discretion.”39

Hence, due to the social background renders, there is no compelling necessity that a rule of
recognition be formally and explicitly laid out in as precise and sophisticated a manner
which Hart expects.

“The distinction between rules and meta-rules is a distinction between what

is primary and what is secondary. It serves to characterize what Hart counts
as a legal, in contrast to a pre-legal, system, but implies that the center of
gravity of a legal system is not in its meta-rules, but in the primary rules of
the pre-legal system and the social mores it embodies. If we concentrate
too much on formal meta-rules, we shall abstract too much. If we concern
ourselves only with formal criteria of legal validity, as we shall fail to see
that these arise out of the law’s fulfilling a social function, and presuppose
that the substantive law is in line with social customs and moral principles.
Moreover, even if we wanted to, we would not give an entirely formal
definition of law, for whereas rules imposing duties and rules conferring
powers may be explicitly formulated in words, and usually become more
fully formulated with the passage of time and the growing sophistication of a
legal system, meta-rules, and especially the rule of recognition, are not, and
cannot be, fully formulated, but must always be at least in part, implicit in a
diffused recognition of what is rationally acceptable. They thus cannot
provide completely adequate criteria of legal validity, since the crucial
question—whether the meta-rules are operated in such a way as to produce
the results that are by and large rationally acceptable—is one that no formal
decision-procedure can always settle. The concepts of law, therefore,
cannot be given too tidy a definition. It can be elucidated, but only as a
social phenomenon that arises when men, who are rational but not very
rational, and moral but not very moral, live their lives together.”40
39
Id., pp. 92-93.
40
Id., pp. 97-98, italics Lucas’.

98
B. The Rule of Recognition

Dworkin, in “The Model of Rules I,” 41 characterized Hart’s positivism in terms of three tenets,
only the first of which is to be examined. The first tenet states:

“The law of a community is a set of special rules used by the community

directly or indirectly for the purpose of determining which behavior will be
punished or coerced by public power. These special rules can be identified
and distinguished by specific criteria, by tests having to do not with their
content but with their pedigree or the manner in which they were adopted or
developed. These tests of pedigree can be used to distinguish valid legal
rules from spurious legal rules (rules which lawyers and litigants wrongly
argue are rules of law) and also from other sorts of social rules (generally
lumped together as ‘moral rules’) that the community follows but does not
enforce through public power.”42

Dworkin engaged in a long argument in an attempt to disprove this tenet. He provided

examples of judicial opinions, Riggs v. Palmer43 and Henningsen v. Bloomfield Motors, Inc.,44
wherein appeal to moral principles was used in a material way to justify the decision in the
case. He then argued that this was not uncommon to judicial decision-making. These moral
principles cannot be identified by means of tests of pedigree; as such, they defy the rules of
recognition. In other words, some legal standards are part of law because of the role they
play in judicial decision-making in a manner in which they are capture-free by the rule of
recognition.

“Most rules of law, according to Hart, are valid because some competent
institution enacted them. Some were created by a legislature, in the form of
statutory enactments. Others were created by judges who formulated them
to decide particular cases, and thus established them as precedents for the
future. But this test of pedigree will not work for the Riggs and Henningsen
principles. The origin of these as legal principles lies not in a particular
decision of some legislature or court, but in a sense of appropriateness
developed in the profession and the public over time. Their continued power
depends upon this sense of appropriateness being sustained. If it no longer
seemed unfair to allow people to profit from their wrongs, or fair to place
special burdens upon oligopolies that manufacture potentially dangerous
machines, these principles would no longer play much of a role in new cases,
even if they had never been overruled or repealed. (Indeed, it hardly makes
sense to speak of principles like these as being ‘overruled’ or ‘repealed’.
When they decline, they are eroded, not torpedoed.)

True, if we were challenged to back up our claim that some principle is a

principle of law, we would mention any prior case in which the principle was
cited, or figured in the argument. We would also mention any statute that
seemed to exemplify that principle (even better if the principle was cited in
the preamble of the statute, or in the committee reports or other legislative
documents that accompanied it). Unless we could find some institutional
support, we would probably fail to make out our case, and the more support
we found, the more weight we could claim for the principle.
41
Ronald Dworkin, “The Model of Rules I,” Taking Rights Seriously, Cambridge: Harvard University Press, 1978,
pp. 14-45.
42
Id., p. 17.
43
115 N.Y. 506, 22 N.E. 188 (1889).
44
32 N.J. 358, 161 A. 2d 69 (1960).

99
 Yet we could not devise any formula for testing how much and what kind of
institutional support is necessary to make a principle a legal principle, still less
to fix its weight at a particular order of magnitude. We argue for a particular
principle by grappling with what a whole of shifting, developing, and
interacting standards (themselves principles rather than rules) about
institutional responsibility, statutory interpretation, the persuasive force of
various sorts of precedent, the relation of all these to contemporary moral
practices, and hosts of other such standards. We could not bolt all of these
together into a single ‘rule’, even a complex one, and if we could the result
would bear little relation to Hart’s picture of a rule of recognition, which is the
picture of a fairly stable master rule specifying ‘some feature or features
possession of which by a suggested rule is taken as a conclusive affirmative
indication that it is a rule. . .’

Moreover, the techniques we apply in arguing for another principle do not

stand (as Hart’s rule of recognition is designed to) on an entirely different
level from the principles they support. Hart’s sharp distinction between
acceptance and validity does not hold. If we are arguing for the principle that
a man should not profit from his own wrong, we could cite the acts of courts
and legislatures that exemplify it, but this speaks as much to the principle’s
acceptance as its validity. (It seems odd to speak of a principle as being valid
at all, perhaps because validity is an all-or-nothing concept, appropriate for
rules, but inconsistent with a principle’s dimension of weight.) If we are asked
(as we might well be) to defend the particular doctrine of precedent, or the
particular technique of statutory interpretation, that we used in this argument,
we should certainly cite the other general principles that we believe support
that practice, and this introduces a note of validity into the chord of
acceptance. We might argue, for example, that the use we make of earlier
cases and statutes is supported by a particular analysis of the principles of
democratic theory, or by a particular position on the proper division of
authority between national and local institutions, or something else of that
sort. Nor is this path of support a one-way street leading to some ultimate
principle resting on acceptance alone. Our principles of legislation, precedent,
democracy, or federation might be challenged too; and if they were we should
argue for them, not only in terms of practice, but in terms of each other and in
terms of the implications of trends of judicial and legislative decisions, even
though this last would involve appealing to those same doctrines of
interpretation we justified through the principles we are now trying to support.
At this level of abstraction, in other words, principles rather hang together
than link together.

So even though principles draw support from the official acts of legal
institutions, they do not have a simple or direct enough connection with these
acts to frame the connection in terms of criteria specified by some ultimate
master rule of recognition.”45

Dworkin concluded:

“So we cannot adapt Hart’s version of positivism by modifying his rule of

recognition to embrace principles. No tests of pedigree, relating principles to
acts of legislation, can be formulated, nor can his concept of customary law,
itself an exception to the first tenet of positivism, be made to serve without
abandoning the tenet altogether. One more possibility must be considered,
45
Dworkin, supra., n. 35, pp. 40-41.

100
 however. If no rule of recognition can provide a test for identifying principles,
why not say that principles are ultimate, and form the rule of recognition of
our law? The answer to the general question ‘What is the valid law in an
American jurisdiction?’ would then require us to state all the principles (as
well as ultimate constitutional rules) in force in that jurisdiction at the time,
together with appropriate assignments of weight. A positivist might then
regard the complete set of these standards as the rule of recognition of the
jurisdiction. This solution has the attraction of paradox, but of course it is an
unconditional surrender. If we simply designate our rule of recognition by the
phrase ‘the complete set of principles in force’, we achieve only the tautology
that law is law. If, instead, we tried actually to list all the principles in force
we would fail. They are controversial, their weight is all important, they are
numberless, and they shift and change so fast that the start of our list would
be obsolete before we reached the middle. Even if we succeeded, we would
not have a key for law because there would be nothing left for our key to
unlock.

I conclude that if we treat principles as law we must reject the positivists’ first
tenet, that the law of a community is distinguished from other social
standards by some test in the form of a master rule.”46

Prof. Dworkin summarizes his argument against the existence of a rule of recognition in
another article:

“I might summarize the argument I made in this way. I said that the thesis
that there exists some commonly recognized test for law is plausible if we
look only at simple legal rules of the sort that appear in statutes or are set out
in bold type in textbooks. But lawyers and judges, in arguing and deciding
lawsuits, appeals not only to such black-letter rules, but also to other sorts of
standards that I called legal principles, like, for example, the principle that no
man may profit from his own wrong. This fact faces the positivist with the
following difficult choice. He might try to show that judges, when they appeal
to principles of this sort, are not appealing to legal standards, but only
exercising their discretion. Or he might try to show that, contrary to my
doubts, some commonly-recognized test always does identify the principles
judges count as law, and distinguishes them from the principles they do not. I
argued that neither strategy could succeed.”47

Prof. Joseph Raz took up the cudgels for the positivists in defending Hart against Dworkin’s
attack. He replied that principles become part of the law in roughly the same way that rules
do. Thus, if rules can be captured by some sort of master test, so can principles.

“Legal principles, like other laws, can be enacted or repealed by legislatures

and administrative authorities. They can also become legally binding through
establishment by the courts. Many legal systems recognize that both rules
and principles can be made into law or lose their status through precedent.
Rules and principles differ in this respect. A court can establish a new rule in
a single judgment which becomes a precedent. Principles are not made into
law by a single judgment; they evolve rather like a custom and are binding
only if they have considerable authoritative support in a line of judgments.
Like customary law, judicially adopted principles need not be formulated very
precisely in the judgments which count as authority for their existence. All
46
Id., pp. 43-44.
47
Ronald Dworkin, “The Model of Rules II,” Taking Rights Seriously, Cambridge: Harvard University Press, 1978,
p. 46.

101
 that has to be shown is that they underlie a series of courts’ decisions, that
they were in fact a reason operating in a series of cases.”48

Dworkin formulates two arguments against the existence of a rule or recognition or a master
test in law. This is how Raz describes and responds to the first argument.

“‘Hart’s sharp distinction between acceptance and validity,’ the first argument
runs, ‘does not hold. If we are arguing for the principle that a man should not
profit from his own wrong, we could cite the acts of courts and legislatures
that exemplify it, but this speaks as much to the principle’s acceptance as its
validity. (It seems odd to speak of a principle as being valid at all, perhaps
because validity is an all-or-nothing concept, appropriate for rules, but
inconsistent with a principle’s dimension of weight.’ The concept of validity is
said to be inconsistent with a principle’s dimension of weight on the ground
that one establishes a principle’s validity by showing that it has ‘institutional
support’ but the amount of support a principle enjoys determines its weight
and is a matter of degree: ‘[T]he more support we found, the more weight we
could find from the principle.’ But this is surely mistaken. A principle might
have been referred to frequently by the courts as binding, but have little
weight. The degree of support may sometimes be evidence for a principle’s
weight, but it need not be and the two notions are not logically related.

Legal principles may be valid in precisely the same way that rules are. They
may, for example, be enacted in a constitution or in a statute, as some of
Professor Dworkin’s own examples show. It is true, though, that some legal
principles are law because they are accepted by the judiciary. It is, however,
an important point which does necessitate a modification of Hart’s criterion of
identity. But here again Professor Dworkin claims too much. He claims that if
the master rule says merely that whatever other rules the community accepts
are legally binding, then it fails to act as an identifying criterion distinguishing
between law and social norms. Had all social customs in all countries been
legally binding, this would have been a valid criticism. Some countries,
however, do not recognize custom as a source of law at all. These legal
systems which do regard customs as legally binding do so only if they pass
certain tests. These tests, if they are not set out in a statute or some other
law, are laid down by the rule of recognition, which determines under what
conditions social customs are binding as law.

The rule of recognition, therefore, does serve to explain the legal status of
general community customs. It cannot, however, explain in the same way the
legal status of judicial customs. Since it is itself a judicial custom it cannot
confer any special status on other judicial customs. Judicial rule-making, as I
indicated above, differs in this respect from the evolution of principles by the
courts. A rule becomes binding by being laid down in one case as a
precedent. It does not have to wait until it is accepted in a series of cases to
be binding. It is binding because of the doctrine of precedent which is part of
our rule of recognition. Principles evolved by the courts become binding by
becoming a judicial custom. They are part of the law because they are
accepted by the courts, not because they are valid according to the rule of
recognition.

Hart’s criterion of identity must be modified. A legal system consists not only
of one customary rule of the law-enforcing agencies and all the laws
48
Joseph Raz, “Legal Principles and the Limits of Law,” Ronald Dworkin and Contemporary Jurisprudence, ed. by
Marshall Cohen, New Jersey: Rowman and Allanheld, p. 77.

102
 recognized by it, but of all the customary rules and principles of the law-
enforcing agencies and all the laws recognized by them. This is an important
modification, but it preserves the fundamental point underlying Hart’s
criterion and shared by many: namely, that law is an institutionalized
normative system and that the fact that the enforcement of its standards is a
duty of special law-enforcing agencies is one important feature which
distinguishes it from many other normative systems. The importance of this
feature of law is made manifest by distinguishing between legal and nonlegal
standards according to whether or not the courts have an obligation to apply
them, either because they are themselves judicial custom or because judicial
customs make their application obligatory.”49

Professor Dworkin’s second argument is repeated and responded to by Raz in this manner.

“Professor Dworkin has a second argument disputing the possibility of

formulating an adequate criterion of identity. ‘True,’ he says, ‘if we were
challenged to back our claim that some principle is a principle of law, we
would mention any prior cases in which that principle was cited, or figured in
the argument. . . . Unless we could find some such institutional support, we
would probably fail to make out our case . . . . Yet we could not devise any
formulate for testing how much and what kind of institutional support is
necessary to make a principle a legal principle.’ In this passage Professor
Dworkin is rejecting not merely Hart’s version of the thesis of the limits of law
but all versions of the thesis. He agrees that if legal and nonlegal standards
can be distinguished, this could only be done by relying on the fact that only
legal standards have adequate institutional support in the practice of the
courts. He denies, however, the possibility of a general explanation of what
counts as adequate institutional support. It follows that it is impossible to
provide a general account of the difference between legal and nonlegal
standards and the thesis of the limits of law must be abandoned. What is the
force of the argument? If a legal system consists, as I have suggested, of
those standards which the courts are bound to recognize, we must agree with
Professor Dworkin that we need a general explanation of what counts as
adequate institutional support. For laws are binding on the courts either
because judicial customs make their recognition obligatory or because they
are themselves judicial customs. Thus the acceptability of the thesis of the
limits of law depends on our ability to explain the concept of a judicial custom.
But judicial customs are but a special case of social customs.

What we need is an adequate explanation of the concept of a customary

norm. Once we have it we will know what judicial custom is and will have a
complete criterion of identity. Hart has provided such an explanation. No
doubt it is possible to improve on it, but there is no reason to suppose that the
concept of a customary norm defies analysis. It is true that an analysis of the
concept does not give us a decision procedure determining for every principle
or rule whether or not it has sufficient support to be regarded as a judicial
custom. Borderline cases will remain; they must remain for customary norms
evolve gradually. But Dworkin’s is a very weak argument, which rejects a
distinction because it admits the existence of borderline cases.”50

To put the same point in another way, the law has sources. That the law has sources is a
result of its social and institutional character. It is a truism that law tells men how to behave
or consists of standards that guide their actions. And it is part of the function of adjudicative
49
Id., pp. 79-80.
50
Id., pp. 80-81.

103
institutions to pick out these standards in applying the law. This is as true for primitive
societies as well as for sophisticated ones. In primitive societies, the courts in resolving a
dispute may conclude that these standards are to be found in custom or a shared morality.
In more sophisticated ones where greater emphasis is placed on spelling out these
standards for clearer and more effective guidance, the courts turn to the pronouncements of
law-making and law-applying institutions, like themselves, for his guidance. Hence, however
primitive or sophisticated the law (so long as society is governed by it), the courts know
where to look to find law or know how to identify the sources from which the legal standards
applicable to the case are derived.

The sources are identified in terms of the practice of the courts. An outsider looking in at
the court's behavior can observe a judicial practice or custom. From an external perspective
therefore, a rule or rules can be formulated describing it. From the internal perspective on
the other hand, the attitude of the courts that the practice ought to be complied with can be
discerned. The ingredients that transform a practice into a binding rule are thus in place. 51
Some sort of rule of recognition can be formulated,52 one which may be used to identify by
means of social fact the sources with which the law's existence is determined and content
identified, as well as for determining the law's existence and for identifying the law's
content.

C. The Semantic Sting

The second criticism of Dworkin is more general in character. It challenges the very
methodology of legal positivism and claims that it falls prey to the semantic sting. The
semantic sting is a knockdown argument against all legal methodologies which avail of
semantic theories of law. Dworkin insists that semantic theories, by its insistence on shared
criteria of meaning, are unable to account for theoretical disagreement in law.

Dworkin first introduced certain terminology in order to construct his argument. He initially
defined a proposition of law as “all the various statements and claims people make about
what the law allows or prohibits or entitles them to have.”53

He then distinguished between empirical and theoretical disagreements about law.

“Now we can distinguish two ways in which lawyers and judges might agree
about the truth of a proposition of law. They might agree about the grounds
of law—about when the truth or falsity of other, more familiar propositions
makes a particular proposition of law true or false—but disagree about
whether those grounds are in fact satisfied in a particular case. Lawyers and
judges might agree, for example, that the speed limit is 55 in California if the
official California statute book contains a law to that effect, but disagree about
whether that is the speed limit because they disagree about whether, in fact,
the book does contain such a law. We might call this an empirical
disagreement about law. Or they might disagree about the grounds of law,
about which other kinds of propositions, when true, make a particular
proposition of law true. They might agree, in the empirical way, about what
the statutes and past judicial decisions have to say about compensation for
fellow-servant injuries, but disagree about what the law of compensation
actually is because they disagree about whether statute books and judicial
decisions exhaust the pertinent grounds of law. We might call that a
‘theoretical’ disagreement about law.”54
51
See Hart, The Concept of Law, 79-88.
52
Ibid., 92
53
Ronald Dworkin, Law’s Empire, London: Fontana Press, p. 4.
54
Id., pp. 4-5.

104
Next, he maintained that legal positivists advocated or subscribed to a plain-fact view of
law, which, incidentally, he also provided a definition for.

“(Legal philosophers) say that theoretical disagreement is an illusion, that

lawyers and judges all actually agree about the grounds of law. I shall call this
the ‘plain fact’ view of the grounds of law; here is a preliminary statement of
its main claims. The law is only a matter of what legal institutions, like
legislatures and city councils and courts, have decided in the past. If some
body of that sort has decided that workmen can recover compensation for
injuries by fellow workmen, then that is law. So questions of law can always
be answered by looking in the books where the records of institutional
decisions are kept. Of course it takes special training to know where to look
and how to understand the arcane vocabulary in which the decisions are
written. The layman does not have this training or vocabulary, but lawyers
do, and it therefore cannot be controversial among them whether the law
allows compensation for fellow-servant injuries, for example, unless some of
them have made an empirical mistake about what actually was decided in the
past. ‘Law exists as a plain fact, in other words, and what the law is in no way
depends on what it should be. Why then do lawyers and judges sometimes
appear to be having a theoretical disagreement about the law? Because
when they appear to be disagreeing in the theoretical way about what the law
is, they are really disagreeing about what it should be. Their disagreement is
really over issues of morality and fidelity.”55

Dworkin then went on to provide counter-examples to this view in the form of actual judicial
cases which tended to show that the arguments in these cases seemed to be about law and
not about morality or fidelity or repair. According to him, the surprising response of some
legal philosophers, presumably positivists, to these counter-examples was to claim that
“theoretical disagreement about the grounds of law must be a pretense because the very
meaning of the word ‘law’ makes law depend on specific criteria, and that any lawyer who
rejected or challenged those criteria would be speaking self-contradictory nonsense.”56

These specific criteria are in the form of shared rules: “We follow shared rules, they say, in
using any word: these rules set out criteria that supply the word’s meaning. Our rules for
using ‘law’ tie law to plain historical fact. It does not follow that all lawyers are aware of
these rules in the sense of being able to state them in some crisp and comprehensive form.
For we all follow rules given by our common language of which we are fully aware.”57

In other words, these positivists subscribed to a semantic theory. “Semantic theories

suppose that lawyers and judges use mainly the same criteria (though these are hidden and
unrecognized) in deciding when propositions of law are true or false; they suppose that
lawyers actually agree about the grounds of law. These theories disagree about which
criteria lawyers do share and which grounds these criteria do stipulate.”58

Dworkin then went on to argue that the ‘pretense’ or ‘fingers-crossed’ argument does not
hold water. The pretense argument goes like this: “(J)udges pretend to be disagreeing
about what the law is because the public believes there is always law and that judges should
always follow it. On this view lawyers and judges systematically connive to keep the truth
from the people so as not to disillusion them or arouse their ignorant anger.”59
55
Id., p. 7.
56
Id., p. 31.
57
Id.
58
Id., p. 33.
59
Id., p. 37.

105
Then he proceeds with its refutation. If “lawyers all agree there is no decisive law in cases
like our sample cases, then why has this view not become part of our popular political
culture long ago? And if it has not—if most people still think there is always law for judges
to follow—why should the profession fear to correct their error in the interests of a more
honest judicial practice? In any case, how can the pretense work? Would it not be easy for
the disappointed party to demonstrate that there really was no law according to the grounds
everyone knows are the right grounds? And if the pretense is so easily exposed, why bother
with the charade? Nor is there any evidence in our sample cases that any of the lawyers or
judges actually believed what this defense attributes to them. Many of their arguments
would be entirely inappropriate as arguments for either the repair or the improvement of
law, they make sense only as arguments about what judges must do in virtue of their
responsibility to enforce the law as it is.”60

He then concludes: “In fact there is no positive evidence of any kind that when lawyers and
judges seem to be disagreeing about the law they are really keeping their fingers crossed.
There is no argument for that view of the matter except the question-begging argument that
if the plain-fact thesis is sound they just must be pretending.”61

The positivists have a stronger, more sophisticated argument:

“There is, however, a more sophisticated defense of positivism, which

concedes that lawyers and judges in our sample cases thought they were
disagreeing about the law but argues that for a somewhat different reason
this self-description should not be taken at face value. This new argument
stresses the importance of distinguishing between standard or core uses of
the word ‘law’ and borderline or penumbral uses of the word. It claims that
lawyers and judges all follow what is mainly the same rule for using ‘law’ and
therefore all agree about, for example, the legal speed limit in California and
the basic rate of tax in Britain. But because rules for using words are not
precise and exact, they permit penumbral or borderline cases in which people
speak somewhat differently from one another. So lawyers may use the word
‘law’ differently in marginal cases when some but not all of the grounds
specified in the main rule are satisfied. This explains, according to the
present argument, why they disagree in hard cases like our sample cases.
Each uses a slightly different version of the main rule, and the differences
become manifest in these special cases. In this respect, the argument
continues, our use of ‘law’ is no different from our use of many other words
we find unproblematical. We all agree about the standard meaning of ‘house,’
for example. Someone who denies that the detached one-family residences
on ordinary suburban streets are houses just does not understand the English
language. Nevertheless there are borderline cases. People do not all follow
exactly the same rule; some would say that Buckingham Palace is a house
while others would not.”62

The sophisticated positivist legal defense fails too, according to Dworkin.

“The new story is in one way like the fingers-crossed story, however: it leaves
wholly unexplained why the legal profession should have acted for so long in
the way the story claims it has. For sensible people do not quarrel over
whether Buckingham Palace is really a house; they understand at once that
this is not a genuine issue but only a matter of how one chooses to use a word
60
Id., pp. 37-38.
61
Id., p. 39.
62
Id., pp. 39-40.

106
 whose meaning is not fixed at its boundaries. If ‘law’ is really like ‘house,’
why should lawyers argue for so long about whether the law really gives the
secretary of the interior power to stop an almost finished dam to save a small
fish, or whether the law forbids racially segregated schools? How could they
think they had arguments for the essentially arbitrary decision to use the word
one way rather than another? How could they think that important decisions
about the use of state power should turn on a quibble? It does not help to say
that lawyers and judges are able to deceive themselves because they are
actually arguing about a different issue, the political issue whether the
secretary should have that power or whether states should be forbidden to
segregate their schools. We have already noticed that many of the
arguments judges make to support their controversial claims of law are not
appropriate to those directly political issues. So the new defense of positivism
is a more radical critique of professional practice than it might seem. The
crossed-fingers defense shows judges as well-meaning liars; the borderline-
case defense shows them as simpletons instead.

The borderline defense is worse than insulting, moreover, because it ignores

an important distinction between two kinds of disagreements, the distinction
between borderline cases and testing or pivotal cases. People sometimes do
speak at cross-purposes in the way the borderline defense describes. They
agree about the correct tests for applying some word in what they consider
normal cases but use the word somewhat differently in what they all
recognize to be marginal cases, like the case of a palace. Sometimes,
however, they argue about the appropriateness of some word or description
because they disagree about the correct tests for using the word or phrase on
any occasion.”63

It is an argument of the second type which lawyers and judges engage in in actual judicial
cases.

“You might think that the second argument I just described is silly, a
corruption of scholarship. But whatever you think, arguments of that character
occur, and they are different from arguments of the first kind. It would be a
serious misunderstanding to conflate the two or to say that one is only a
special case of the other. The ‘sophisticated’ defense of positivism
misunderstands judicial practice in just that way. The various judges and
lawyers who argued our sample cases did not think they were defending
marginal or borderline claims. Their disagreements about legislation and
precedent were fundamental; their arguments showed that they disagreed not
only about whether Elmer should have his inheritance, but about why any
legislative act, even traffic codes and rates of taxation, impose the rights and
obligations everyone agrees they do; not only about whether Mrs. McLoughlin
should have her damages, but about how and why past judicial decisions
change the law of the land. They disagreed about what makes a proposition
of law true not just at the margin but in the core as well. Our sample cases
were understood by those who argued about them in courtrooms and
classrooms and law reviews as pivotal cases testing fundamental principles,
not as borderline cases calling for some more or less arbitrary line to be
drawn.”64

Dworkin then summarizes his criticism of positivism and semantic theories of law.

63
Id., pp. 40-41; italics Dworkin’s.
64
Id., pp. 42-43.

107
 “If legal argument is mainly or even partly about pivotal cases, then lawyers
cannot all be using the same factual criteria for deciding when propositions of
law are true or false. Their arguments would be mainly or partly about which
criteria they should use. So the project of the semantic theories, the project
of digging out shared rules from a careful study of what lawyers say and do,
would be doomed to fail. . . .

...

. . . So our legal philosophers try to save what they can. They grasp at straws:
they say that judges in hard cases are only pretending to disagree about what
the law is, or that hard cases are only borderline disputes at the margin of
what is clear and shared. They think that they must otherwise settle into
some form of nihilism about law. The logic that wreaks this havoc is the logic
just described, the argument that unless lawyers and judges share factual
criteria about the grounds of law there can be no significant thought or debate
about what the law is. We have no choice but to confront that argument. It is
a philosophical argument, so the next stage of our project must be
philosophical as well.”65

This, Dworkin calls, the semantic sting. “I shall call the argument I have just described,
which has caused such great mischief in legal philosophy, the semantic sting.”66

To summarize Dworkin’s point, his conclusions are based on his criticism of semantic
theories of law. Semantic theories are committed to the view that law can be characterized
and the truth of legal propositions determined in terms of shared linguistic criteria. As such,
they all fall victim to the 'semantic sting', since they are unable to account for theoretical
disagreements involved in judging the truth or falsity of individual propositions of law.
Either they pretend that no disagreement whatsoever exists, these shared linguistic criteria
being adequate to determine the truth of legal propositions, whatever disagreement there is
being one outside law; or they insist that disagreement exists only in the borderline cases of
legal concepts, there being agreement at the core, which disagreement is to be resolved
purely by verbal convention, by choosing to extend the concept one way or another.

The semantic sting has limited impact. None of the jurisprudential theories of note are
semantic in the way described. Hence Dworkin's argument may be valid against semantic
theories, but not all jurisprudential theories are so crude. The more viable jurisprudential
theories, of which the jurisprudential theory of this thesis is one, are conceptual and not
semantic. The semantic sting has no effect on them, and indeed on other jurisprudential
theories.

Indeed Dworkin appears to suggest that there are only two types of jurisprudential theories,
semantic theories and his recommended interpretive theories, which is a jurisprudential
theory based on adjudication. Since semantic theories are not viable, then only interpretive
theories remain. This is a false dichotomy. Dworkin conveniently neglects conceptual and
other theories, or he falsely categorizes all these viable jurisprudential theories as semantic.

Dworkin's error therefore lies in assuming that since jurisprudential theories attempt to
characterize or define law, they must be, like semantic theories, purely verbal or linguistic, a
matter merely of reporting the shared linguistic criteria people employ in using a word or of
extending this shared or uncontroversial meaning to account for borderline cases. This
argument appears to have greater force when applied to conceptual theories, since they are
preoccupied with ordinary language and engage in linguistic analysis. But the point of the
65
Id., pp. 43-44.
66
Id, p. 45.

108
conceptual theorist's open concern with language and of his search for some sort of
definition is not purely linguistic, the point being "a sharpened awareness of words to
sharpen our perception of phenomena," an insight of Austin which Hart openly endorsed,67
or to understand our self-understanding of the world, which is Raz's view.68 Hence it is not
words or language per se, which conceptual theories are interested in, or even our thoughts,
but our concepts, how we understand the world, and what lies behind the concepts, the
world. For the key to understanding the world lies in understanding our own concepts.

Indeed, ordinary language's verdict on the use of our words cannot be the be-all and the
end-all of the matter. For ordinary language itself may be vague, ambiguous or
inconsistent. Moreover, even when ordinary language provides uncontroversial shared
truths about the phenomena being investigated, the puzzlement remains. It does not
disappear with improved reporting on actual usage, or by an agreement on a set of common
characteristics so as to categorize borderline cases. For the problems are deep and
substantial. This is precisely Hart's point in his introduction to The Concept of Law. The
book's purpose was "not to provide a definition of law, in the sense of a rule by reference to
which the correctness of the use of a word can be tested; it (was) to advance legal theory by
providing an improved analysis of the distinctive structure of a municipal legal system and a
better understanding of the resemblances and differences between law, coercion, and
morality, as types of social phenomena."69

Conceptual theories therefore are not linguistic. Hence they share with interpretive theories
an appreciation of the same problem, which is to arrive at a better understanding of the
phenomena under investigation, and in the inadequacy of purely linguistic enterprises to
provide this understanding, but disagree in the solution and the method for arriving at the
solution.

D. Inclusive Positivism

The third criticism against Hart is an internal one. Professor Raz argues that Hart subscribes
to a version of positivism which endorses a weak social thesis, which fails to comply with the
basic positivist insight that what is law or not law is purely a matter of social fact and not of
moral considerations. Raz, on the other hand, advocates the strong social thesis, which is
more precisely defined as follows: “A jurisprudential theory is acceptable only if its tests for
identifying the content of the law and determining its existence depend exclusively on facts
of human behaviour capable of being described in value-neutral terms without resort to
moral argument.”70

To elaborate, Raz maintains that the tests for the identity and existence of a legal system
contain three basic elements: efficacy, institutional character, and sources. The weak social
thesis subscribes only to the first two, while the strong social thesis advocates all three.

“Most positivists are ambiguous concerning one interesting point. While their
general terms suggest an endorsement of the strong social thesis, their actual
doctrines rest on efficacy and institutionality as the only conditions concerning
the social foundation of law. Let the combination of these two conditions be
called the weak social thesis. It is easy to show that the weak and strong
theses are not equivalent. Suppose that the law requires that unregulated
disputes (i.e. those with respect to which the law is unsettled) be determined
67
H. L. A. Hart, The Concept of Law, p. 14.
68
This was made clear by Raz in a set of lectures he delivered in the Michaelmas Term of 1992-93, entitled
"Coherence and Law".
69
Dworkin, supra., pp. 65-68.
70
Joseph Raz, “Legal Positivism and the Sources of Law,” The Authority of Law, Oxford: Clarendon Press, 1979,
pp. 41-42.

109
 on the basis of moral considerations (or a certain subclass of them, such as
considerations of justice or moral considerations fundamentally at odds with
social morality). Suppose further that it is argued that in virtue of this law
moral considerations have become part of the law of the land (and hence the
law is never unsettled unless morality is). This contention runs directly
counter to the strong thesis. If it is accepted, the determination of what is the
law in certain cases turns on moral considerations, since one has to resort to
moral arguments to identify the law. To conform to the strong thesis we will
have to say that while the rule referring to morality is indeed law (it is
determined by its sources) the morality to which it refers is not thereby
incorporated into law. The rule is analogous to a ‘conflict of law’ rule imposing
a duty to apply a foreign system which remains independent of and outside
the municipal law.”71

Raz’ proceeded to show the inadequacy or undesirability of the weak social thesis under
positivist principles. His argument proceeds as follows:

“The difference between the weak social thesis and the strong social thesis is
that the strong one insists, whereas the weak one does not, that the existence
and content of every law is fully determined by social sources. On the other
hand, the weak thesis, but not the strong one, builds into law the conditions of
efficacy and institutionality. The two theses are logically independent. The
weak thesis though true is insufficient to characterize legal positivism. It is
compatible with—

(a) Sometimes the identification of some laws turns on moral argument,

but also with—

(b) In all legal systems the identification of some laws turns on moral
argument.

The first view is on the borderline of positivism and may or may not be
thought consistent with it. But whereas the first view depends on the
contingent existence of source-based law making moral considerations of
validity in certain cases (as in the example above), the second view asserts a
conceptual necessity of testing law by moral argument and is clearly on the
natural law side of the historical positivist/natural law divide.”72

Unfortunately, this debate internal to positivism must await the next chapter, when I discuss
more fully the legal theory of Professor Joseph Raz. To Raz’s theory therefore, I now turn.

0–0–0–0–0

REFERENCES

Bix, Brian, Jurisprudence: Theory and Context, London: Sweet and Maxwell, 2003
Dworkin, Ronald, “The Model of Rules I,” Taking Rights Seriously, Cambridge: Harvard
University Press, 1977.
----------“The Model of Rules II,” Taking Rights Seriously, Cambridge: Harvard University
Press, 1977.
----------Law’s Empire, London: Fontana Press, 1986, Chs. 1-3.
71
Id., pp. 45-46.
72
Id., pp. 46-47.

110
----------“Legal Theory and the Problem of Sense,” Issues in Contemporary Legal Philosophy,
ed. by Ruth Gavison, Oxford: Clarendon Press, 1987.
Fernando, Emmanuel Q., Legal Theory, Legal Reasoning and Philippine Jurisprudence, to be
published by the U.P. Law Center.
Gavison, Ruth, “Comment,” Issues in Contemporary Legal Philosophy, ed. by Ruth Gavison,
Oxford: Clarendon Press, 1987, pp. 21-34.
Hart, H.L.A., The Concept of Law, Oxford: Clarendon Press, 1961.
----------Essays in Jurisprudence and Philosophy, Oxford: Clarendon Press, 1983.
----------“Comment,” Issues in Contemporary Legal Philosophy, ed. by Ruth Gavison, Oxford:
Clarendon Press, 1987, pp. 35-42.
Lucas, J.R., “The Phenomenon of Law,” Law, Morality and Society, ed. by PM.S. Hacker and
Joseph Raz, Oxford: Clarendon Press, 1977.
Raz, Joseph, “Legal Positivism and the Sources of Law,” The Authority of Law, Oxford:
Clarendon Press, 1979.
----------“Legal Principles and the Limits of Law,” Ronald Dworkin and Contemporary
Jurisprudence, New Jersey: Rowman and Allenheld, pp. 73-87.

111