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DR. RAM MANOHAR LOHIYA NATIONAL LAW UNIVERSITY

LUCKNOW

H. L. A. Harts Theory of Law

FINAL DRAFT

SUBMITTED TO

Mr. Manvendra Kumar Tiwari

Assistant Prof. (Law)

SUBMITTED BY

Aditya Singh

Roll no. : - 13

Section A, Semester IV
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ACKNOWLEDGEMENT

During preparation for this project I was immensely helped by all the facilities of Dr. Ram
Manohar Lohiya National Law University.

I would also like to thank my teacher Mr. Manvendra Kumar Tiwari for giving me the
opportunity to choose this topic and for providing me the creative freedom to go upon this
project as I like.

Finally, Id like to thank my friends and batch mates for their valuable suggestions and
assistance.
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Contents
ACKNOWLEDGEMENT................................................................................................ 2

INTRODUCTION........................................................................................................ 4

H.L.A. HARTS THEORY OF LAW............................................................................ 6

LAW AND
MORALITY
11

POSITIVISM..

.11

LEGAL
POSITIVISM
.12

CONCLUSION

...13

BIBLIOGRAPHY.......................................................................................................... 14

Primary Sources-................................................................................................... 14

Secondary Sources ............................................................................................. 14


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INTRODUCTION

Full name of H. L. A. Hart was Herbert Lionel Adolphus Hart1. He was an


influential legal philosopher of the 20th century. It has been argued that Hart
had redefined the domain of jurisprudence and moreover established it as a
philosophical inquiry of the "nature" or "concept" of law.2

Hart brought the tools of analytic, and especially linguistic, philosophy to


bear on the central problems of legal theory. Hart's theory of legal
positivism (the view that laws are rules made by human beings and that
there is no inherent or necessary connection between law and morality)
within the framework of analytic philosophy.

Hart provides an explanation to a number of traditional jurisprudential


questions such as "what is law?", "must laws be rules?", and "what is the
relation between law and morality?. Hart answers these by placing law into
a social context while at the same time leaving the capability for rigorous
analysis of legal terms, which in effect "awakened English jurisprudence from
its comfortable slumbers".

Legal positivism, of which Hart was the major proponent, has been variously
evolved and significantly refined in many respects and by many followers.
But at the same time legal positivism demonstrates signs of an excessive
pluralism and a theoretical fragmentation of detailed analyses, so much that
nothing we can say about legal positivism in general can be agreed to by all
positivists. Inclusive positivists differ with the exclusives, and within each
1 HLA Hart was formerly Professor of Jurisprudence at Oxford University, Principal of
Brasenose College, and Fellow of University College.

2 Priel, Dan (2011). H.L.A. Hart and the Invention of Legal Philosophy. Problema 7
(5): 301-323
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camp they differ with each other on the reasons why the opposite camp is
wrong3. However, Harts shadow hovers over these disagreements and his
theory remains by far the most interesting and internally consistent version
of legal positivism. This is why we need to go back at Harts writings and
explore his insights about law, legal theory and the concept of justice. What
follows is a critical examination of Harts methodological premises in an
attempt to bring to light the conceptions underneath his concept of law and
justice.

3 Proponents of the so-called soft or inclusive or incorporationist or positive positivism argue


that morality could, but need not, be a criterion of validity for the rule of recognition; there
is, namely, no necessary connection between law and morality. To the contrary proponents
of hard or exclusive or negative positivism deny the possibility of morality being a criterion
for identifying valid law.
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H.L.A. HARTS THEORY OF LAW

Hart has criticized theory of John Austin (who says that only law strictly so
called is the IS LAW and the proper law while others such as Laws of
Physical Nature, Laws of Analogy, Laws set by man not acting as a
political superior or Devine Laws are not proper law and are Ought
Law) and has compared Austins theory to that of the Gunmans theory.
According to him, when Law comes to conformist conduct (which conforms to
law), it is about habit and not Rule. This conformist conduct is only an
external aspect of Law. There is ignorance of internal aspect, thus making
him a soft Positivist.

Legal positivism, of which Hart was the major proponent, has been variously
evolved and significantly refined in many respects and by many followers.
But at the same time legal positivism demonstrates signs of an excessive
pluralism and a theoretical fragmentation of detailed analyses, so much that
nothing we can say about legal positivism in general can be agreed to by all
positivists. Inclusive positivists differ with the exclusives, and within each
camp they differ with each other on the reasons why the opposite camp is
wrong4. However, Harts shadow hovers over these disagreements and his
theory remains by far the most interesting and internally consistent version
of legal positivism. This is why we need to go back at Harts writings and
explore his insights about law, legal theory and the concept of justice. What
follows is a critical examination of Harts methodological premises in an
attempt to bring to light the conceptions underneath his concept of law and
justice.

4 Proponents of the so-called soft or inclusive or incorporationist or positive positivism argue


that morality could, but need not, be a criterion of validity for the rule of recognition; there
is, namely, no necessary connection between law and morality. To the contrary proponents
of hard or exclusive or negative positivism deny the possibility of morality being a criterion
for identifying valid law. The debate between the two currents is owed to different
interpretations of the separability thesis.
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Hart disapproves of the concept of law which was formulated by John


Austin. Hart commences explaining his concept of law by first taking Austins
command theory to task. According to Austin, all laws are commands of a
legally unlimited sovereign, and he asserts that, all laws are coercive orders
that impose duties or obligations on individuals. Hart, on the other hand,
says that laws may be at variance from the commands of a sovereign in as
much as they may apply to those individuals who enact them and not merely
to other individuals. Secondly, laws may also be different from coercive
orders in as much as they may not necessarily impose duties or obligations
but may instead confer powers or privileges without imposing duties or
obligations on individuals. Thirdly, the continuance of pre-existing laws
cannot be explained on the basis of command; as pointed out, he was able to
demolish completely the tacit command myth5. Fourthly, Austins habit of
obedience fails to elucidate succession to sovereignty because it fails to
take account of improvement difference between habit and rule. Habits
only require common behaviour, which is not sufficient for a rule. A rule has
an internal aspect, i.e. people use it as a standard by which to judge and
condemn deviations; habits do not function in this manner. Succession to
sovereignty occurs by virtue of the acceptance of a rule entitling the
successor to succeed, not on account of a habit of obedience. Fifthly, Hart
also uses rule to differentiate between being obliged and having an
obligation. Austins command-duty-sanction thesis fails to explain why, if a
gunman threatens X with Your money or your life, X may be obliged to hand
over his purse, but has no obligation to do so 6. The reason is that people
have an obligation only by virtue of a rule.

Harts thesis that a rule of recognition exists in every legal system is the
central feature of his positivistic theory of law, for it is that feature which
distinguishes which things are law and which are not and also provides a
means for identifying the law in a morally neutral approach. It also affords an
answer to the question of when a legal system exists. The master rule of
recognition is the ultimate source of a legal system like the Austins
sovereign7. According to Hart, a simplest version of the rule of recognition in

5 Dias, RWM (1994) Jurisprudence New Delhi: Aditya Books Private Ltd, p352.

6 Dias, RWM (1994) Jurisprudence New Delhi: Aditya Books Private Ltd, p352.

7 Dhyani, SN (2004) Fundamental of Jurisprudence Allahabad: Central Law Agency,


p207.
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the English system is whatever the Queen in the Parliament enacts is law.
Where there is an accepted constitution that accepted constitution is the rule
of recognition. The question of the validity of law is to be answered with
reference to the rule of recognition. To say that a given rule is valid Hart
states, is to recognize it as passing all the tests provided by the rules of
recognition. The rule of recognition is ultimate in the sense that while the
validity of other rules is determined by their conformity to the criteria
specified in the rule of recognition, there can be no question concerning the
validity of the rule of recognition itself 8. Its existence is a matter of fact and
not a question of compliance with any other higher order rule. Just as
Austinian sovereign does not stand in relation of habitual obedience to any
other persons, so is Harts sovereign rule of recognition. That is to say, Harts
sovereign rule of recognition also does not stand in relation of the rule
accordance to any other legal rule. Just as, the legal validity of the Austinian
sovereign is not questioned, so is the legal validity of the Harts rule of
recognition not questioned. But, Austinian sovereign may die, whereas
Harts rule of recognition only fades away (into disuse). Unlike Kelsons basic
grundnorm, Harts rule of recognition is not an extra-legal juristic hypothesis.
Rather, it is a rule of positive law. It seems, he follows Kelsen in some
aspects.

Hart describes the introduction of secondary rules as a step from the pre-
legal to legal world9. Hart says that the primary rules of obligation are not in
themselves adequate to establish a system of laws that can be formally
recognized, changed, or adjudicated. Thus, secondary rules are necessary in
order to provide an authoritative statement of all the primary rules; in order
to allow legislators to make changes in the primary rules if the primary rules
are found to be defective or inadequate; in order to enable courts to resolve
disputes over the interpretation and application of the primary rules. The
secondary rules of a legal system, therefore, includes-

Rules of recognition
Rules of change, and
Rules of adjudication.

8 Ibid, pp207-8.

9 Hart op cit, p 91.


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The primary rules, therefore, acquire the character of a legal system through
their union with the secondary rules.

According to Hart, the primary rules must be combined with secondary rules
so as to advance from the pre-legal to the legal stage of determination. Hart
says that the foundations of a legal system do not consist, as Austin claims,
of habits of obedience to a legally unlimited sovereign, but, instead, consist
of adherence to, or acceptance of, an ultimate rule of recognition by which
the validity of any primary or secondary rule may be assessed. If a primary
or secondary rule satisfies the criteria which are provided by the ultimate
rule of recognition, then that rule is legally valid.

There are two fundamental essentials which must be satisfied in order for a
legal system to exist:

Private citizens must generally obey the primary rules of obligation, i.e.
those rules of behaviour are valid according to the systems ultimate
criteria of validity must be generally obeyed and
Public officials must accept the secondary rules of recognition, change,
and adjudication as standards of official conduct.

If both of these essentials are not satisfied, then primary rules may only be
adequate to establish a pre-legal form of government.

Hart says that there is no indispensable logical connection between the


content of law and morality, and that the existence of legal rights and duties
may be devoid of any moral justification. Thus, his interpretation of the
relation between law and morality is different from that of Ronald Dworkin,
who in Laws Empire suggests that every legal action has a moral dimension.
Dworkin discards the concept of law as acceptance of conventional patterns
of recognition, and describes law not merely as a descriptive concept but as
an interpretive concept which combines jurisprudence and adjudication.
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Unlike Austin and Kelson who rejected and ridiculed natural law, Harts
positivism contains within it a minimum content of natural law. He has
structured the concept of natural law explicitly with positivism what he calls
simple version of natural law. Morality is also couched in Harts concept of
law. This has made Hart a positivist as well as naturalist. There are some
conjunctions in the Harts system of law where law and morality overlap and
coexist, and are even complimentary and supplementary in nature. Further,
his refutation of law as a gunman situation further implies the inseparable
character of the relationship between law and morality. Moral and legal rules
may overlap, because moral and legal obligation may be analogous in some
situations. However, moral and legal obligation may also be different in some
situations. Moral and legal rules may be appropriate and valid in similar
aspects of conduct, such as the obligation to be honest and truthful or the
obligation to respect the rights of other individuals. However, moral rules
cannot always be changed in the way in which the legal rules can be
changed. Hart does not say that there is necessary conceptual or definitional
connection between the legal and the moral, but he does, however,
acknowledge that the ultimate basis for preferring the positive thesis, which
insists on a clear differentiation of law and morals, is itself a moral one.

But, Hart distinguishes law from morality, custom, etiquette, and other kinds
of social rules. According to Hart, four features of morality are necessary for
a clear picture of his concept of law. They are

1. Importance
2. Immunity from deliberate change
3. Voluntary character of moral offence and
4. Forms of moral pressure.

An indispensable feature of a moral rule is that it is regarded as something of


great importance. Hence, individuals cannot omit it. It is an attribute of a
legal system that new legal rules can be introduced and the old ones can be
changed or replaced by deliberate enactment. On the contrary, moral rules
cannot be brought into being or eliminated in this manner. Moral
responsibility is a matter of internal behaviour while law is generally
concerned with external behaviour. If a person after committing an offence
establishes that he did that act involuntarily, then, he is excused from the
moral responsibility, and blaming him, in such a situation, would itself be
considered morally wrong. Whereas, there are certain exceptions in so far as
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fixing legal responsibility of a lawbreaker is concerned. Lastly, in case of law,


the typical form of legal pressure may consist in physical punishment or
unpleasant consequences. Whereas, the characteristic feature of morality, on
the other hand, is the distinguishing form of moral pressure (appeals to
respect the rules and the appeals to conscience) which is wielded in its
support.

Hart has criticized theory of John Austin (who says that only law strictly so
called is the IS LAW and the proper law while others such as Laws of
Physical Nature, Laws of Analogy, Laws set by man not acting as a
political superior or Devine Laws are not proper law and are Ought
Law) and has compared Austins theory to that of the Gunmans theory.
According to him, when Law comes to conformist conduct (which conforms to
law), it is about habit and not Rule. This conformist conduct is only an
external aspect of Law. There is ignorance of internal aspect, thus making
him a soft Positivist.

Harts Gunman Theory -

Hart commences from a very simple instance of a coercive order, that made
an armed bank robber, the gunman, to a bank clerk to hand over money
upon immediate pain of being shot. In a very different context, to a captured
pirate brought before Alexander the Great. When asked how he dared to rob
ships at sea, the pirate replied that he had only one ship and was
condemned as a pirate whereas Alexander had many and was acclaimed as
an Emperor, making the point that power as such does not confer legitimacy.
Harts point is narrower and is simply that the bank robber has no authority
over the clerk. Upon this basis Hart makes a clear distinction between the
situations of being obliged and being under obliged, the former involving
the actual or predictable application of compulsion, the latter involving the
concept of duty whether or not any sanction can reasonably be expected to
be applied. Hart emphasizes the obligation element and he argues that the
command model, however it maybe elaborated or distorted, cannot
adequately account for this in the complex structures of a real society.

LAW AND MORALITY


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In his book The Concept of Law, Hart has analyzed the relation between law
and morality, and has also attempted to clarify the question of whether all
laws may be properly conceptualized as moral commands. Hart says that
there is no rationally necessary correlation between law and morality.
According to him, classifying all laws as moral commands is oversimplifying
the relation between law and morality. He also explicates that to
conceptualize all laws as moral commands is to impose a deceptive
appearance of uniformity on different kinds of laws and on different kinds of
social functions which laws may perform. Hence, it will be
mischaracterization of the purpose, function, content, mode of origin, and
range of application of some laws.

Indeed, there are laws which forbid individuals to perform various kinds of
actions and impose an assortment of obligations on individuals. Sometimes,
some laws impose punishment or penalties for injuring other individuals or
for not complying with various kinds of duties or obligations.

POSITIVISM

Positivism is a philosophy of science based on the view that information


derived from logical and mathematical treatments and reports of sensory
experience is the exclusive source of all authoritative knowledge, and that
there is valid knowledge (truth) only in scientific knowledge. Verified data
received from the senses are known as empirical evidence. This view holds
that society, like the physical world, operates according to
general laws, Introspective and intuitive knowledge is rejected. Much as the
physical world operates according to gravity and other absolute laws, so also
does society.

Professor H.L.A. HART has identified 5 central claims of Positivism

1. Laws are commands and commands originating from Human Beings,


which contradicts Positivism theory which talks about Natural Law.

2. There is no necessary connection between Law and Morality. Law as to


be ought to be. According to him, IS LAW is Law and OUGHT LAW
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is not Law, i.e. IS LAW is made up of OUGHT LAW but one cannot
deduce that IS LAW is same as OUGHT LAW or vice versa.

3. Law is a closed system, wherein correct Legal Decisions can be


deduced from pre-determined legal rules.

4. Moral Judgments cannot be proved by Evidence or facts.

5. Analysis of Law is worth pursuing but same must be distinguished


from historical enquiry into the origins of Law, sociological enquiry into
the relationship of law with other social factors and a criticism or
appraisal of law from the point of view of Morality, Social aims and
functions. This also tells the nature of Analysis of Law.

LEGAL POSITIVISM

Legal positivism is a philosophy of law that emphasizes the conventional


nature of lawthat it is socially constructed. According to legal positivism,
law is synonymous with positive norms, that is, norms made by the legislator
or considered as common law or case law. Formal criteria of laws origin, law
enforcement and legal effectiveness are all sufficient for social norms to be
considered law. Legal positivism does not base law on divine
commandments, reason, or human rights. As an historical matter, positivism
arose in opposition to classical natural law theory, according to which there
are necessary moral constraints on the content of law.

Legal positivism does not imply an ethical justification for the content of the
law, nor a decision for or against the obedience to law. Positivists do not
judge laws by questions of justice or humanity, but merely by the ways in
which the laws have been created. This includes the view that judges make
new law in deciding cases not falling clearly under a legal rule. Practicing,
deciding or tolerating certain practices of law can each be considered a way
of creating law.

Within legal doctrine, legal positivism would be opposed to sociological


jurisprudence and hermeneutics of law, which study the concrete prevailing
circumstances of statutory interpretation in society.
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The word positivism was probably first used to draw attention to the idea
that law is positive or posited, as opposed to being natural in the sense
of being derived from natural law or morality.

CONCLUSION

To conclude I would like to say that most of the aspects have been dealt by me in the current
Draft. I have tried to explain each heading as under them only.

Although the relation is not always direct, Hart considered that all justice can
be covered by the precept of treating like cases alike. Administrative justice,
one of the aspects of justice, is essentially related to the concept of law as a
system of rules. But, a legal system might still engross great distributive and
compensatory injustice. Further, it must be remembered that justice is only
one of the elements of morality and may be overridden by other elements.
However, if one decides to override justice to the common good, Hart
believes that one may be required to consider impartially all the competing
claims of persons10. In short, even if some injustice is inflicted for the
common good, all persons should be treated alike by being given equal
considerations.

According to H.L.A. Harts theory of Law, ideally, the obligation has to be a


moral one if it has to be internal but for such a system to have, you must
have moral uniformity i.e. no moral opposition. One can say that it is a very
pragmatic approach.

Therefore to conclude one can say that according to Hart, One abides by Law not because of the
sanction but because everyone has sanctioned for it to be abided, BY MORAL CONSENSUS.

10 Hart, Concept of Law, p163.


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BIBLIOGRAPHY
Primary Sources-

Concept of Law by H.L.A. Hart

Secondary Sources

1. Jurisprudence Module Compiled and Edited by Manwendra Kumar


Tiwari
2. http://en.wikipedia.org/wiki/H._L._A._Hart#cite_note-1
3. http://en.wikipedia.org/wiki/The_Concept_of_Law
4. http://en.wikipedia.org/wiki/Positivism
5. http://www.iep.utm.edu/legalpos/
6. http://en.wikipedia.org/wiki/Legal_positivism

7. Dias, RWM (1994) Jurisprudence New Delhi: Aditya Books Private Ltd.
8. Hart, HLA (1983) Essays in Jurisprudence and Philosophy.
9. Harts concept of Law and Justice Ravindra Kumar Singh

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