H. L. A.

Hart, The Concept of Law (Oxford: Clarendon, 1961) 1

(Katharine Jane Schweitzer, 09/02/2008)
Chapter V:

Hart begins by arguing that John Austin’s command theory of law, which conceives of law as “the
sovereign’s coercive orders”, “fails to reproduce some of the salient features of a legal system” (77).
• Austin’s conception of law cannot account for the basic legal concepts of obligation and duty.
• Austin’s command theory of law misses “a whole dimension of the social life” of those who
live under a particular legal system (87). It “cannot properly understand the whole distinctive
style of human thought, speech, and action which is involved in the existence of rules and
which constitutes the normative structure of society” (86).

Question: Why, according to Hart, does Austin’s theory of law fail in these two accounts?
• Because Austin’s conception of law is based in the idea of a command rather than the idea of
a rule.
o Not all actions that take place within a legal system can be reduced to commands
given by a sovereign individual. There exist “voluntarily created structures of rights
and duties” such as “the making of wills, contracts, transfers of property” (94).
• Because Austin’s conception of law can only account for those who hold an external point of
view of the law and cannot account for those who hold an internal point of view of the law.
o “One of the difficulties facing any legal theory anxious to do justice to the complexity
of the facts is to remember the presence of both these points of view and not to define
one of them out of existence” (88).

In this chapter, Hart endeavors to introduce a new theory of law that describes a legal system as “the
combination of primary rules of obligation with the secondary rules of recognition, change, and
adjudication” (95). Such an account gets to “the heart of a legal system” (95).
• Summarized, and in different words, Hart’s goal is to build up “a new account of law in terms
of the interplay of primary and secondary rules” (80).

So… what is a primary rule, what is a secondary rule?

• Primary rules directly govern the conduct of individuals within the legal system. Under
primary rules, “human beings are required to do or abstain from certain actions, whether they
wish to or not” (78-79).
• Secondary rules “are all concerned with the primary rules themselves” (92). Secondary rules
“introduce new rules of the primary type, extinguish or modify old ones, or in various ways
determine their incidence or control their operations” (79).

Still… why should the idea of a rule (rather than the idea of a command) serve as the basis of our
understanding of a legal system?
• By comparing Austin’s command theory of law with the gunman situation, Hart demonstrates
that “we need something else for an understanding of the idea of obligation” (80). There is a
difference “between the assertion that someone was obliged to do something and the
assertion that he had an obligation to do it” (80).
• According to Hart, only rules can create and impose obligations. A sovereign’s coercive
orders may oblige an individual, but a command cannot establish that the individual has an
obligation.
H. L. A. Hart, The Concept of Law (Oxford: Clarendon, 1961) 2
(Katharine Jane Schweitzer, 09/02/2008)
Why do rules imply obligation?
• Because social rules involve “a combination of regular conduct with a distinctive attitude to
that conduct as a standard [of behavior]” (83).
o “Rules are conceived and spoken of as imposing obligations when the general
demand for conformity is insistent and the social pressure to bear upon those who
deviate or threaten to deviate is great” (84).
• Hart argues that rules are supported by social pressure because the majority of the members
of society “live by the rules seen from the internal point of view” (89).
o Assertions that individuals have obligations “are required only by those who see their
own and other persons’ conduct from the internal point of view”, Hart writes (88).

Okay, so what is the difference between the external and internal points of view of the law?
• Individuals who look at law from the external point of view either observe the rules of the
legal system as a disinterested outsider or, if the individual is actually a member of the legal
system, he or she will “reject the rules except where fear of social pressure induces them to
conform” (89).
• Individuals who look at law from the internal point of view “accept and voluntarily co-
operate in maintaining the rules, and so see their own and other persons’ behavior in terms of
the rules” (88). Those who take an internal perspective to the law use the rules as “guides to
conduct” (86).
o Again: Remember that in order “to do justice to the complexity of facts” within a
legal system, one must “remember the presence of both these points of view and not
to define one of them out of existence” (88). Hart claims that his theory improves on
all other theories of law by actually achieving this.

So… why does a legal system need to be comprised of both primary and secondary rules?
• Hart argues that only small, primitive communities could exist with a legal system comprised
only of primary rules, without any secondary rules. A modern legal system that consisted of
only primary rules would be inadequate because:
o It would be uncertain exactly what the primary rules are (90).
o The primary rules would be static; it would be impossible to change the system of
primary rules (90).
o The social pressure by which the primary rules would be maintained would be
inefficient. There would be no official adjudicating agency to authoritatively
determine when the primary rules had been broken, and if so, what the punishment
should be, and how such a punishment would be effectively administered (91).
• Hart’s conception of secondary rules remedies each of these three defects that arise when the
legal system consists only of primary rules of obligation.
o The rule of recognition eliminates the uncertainty associated with exactly what the
primary rules are. The rule of recognition “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 he group to be supported by the social pressure it exerts”
(92).
o Rules of change will empower “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” (93).
H. L. A. Hart, The Concept of Law (Oxford: Clarendon, 1961) 3
(Katharine Jane Schweitzer, 09/02/2008)
o Rules of adjudication will identify “the individuals who are to adjudicate” as well as
“the procedure to be followed” (94).