Hart’s Theory of Law

Don Hubin

Copyright © 2003 by Donald C. Hubin

 H.L.A. Hart
• Staunch critic of
Austin’s Positivism
• Presents and
defends a form of
positivism that
incorporates
insights of natural
law legal theory
and legal realism.

H.L.A. Hart (1907-1992)

 Law: the Slogan

• Jurisprudential Slogans
– NLLT: “Law is an ordinance of reason
promulgated for the common good by him
who has care of the community.”
– Austin: “Law is the commands of the
sovereign.”
– Legal Realism: “Law is (a prediction of)
what courts do.”
– Hart: “Law is a union of primary and
secondary rules.”
 Rules
• Partial Analysis:
– Distinguishing:
• “As a rule…”
• “It is a rule that…”

“As a rule…” “It is a rule that…”

Descriptive of a regularity Normative (prescribes behavior)

Contrary behavior is a mere Contrary behavior is a violation

exception
Excessive contrary behavior Excessive contrary behavior
makes it not true that “as a does not falsify the claim that “it
rule…” is a rule that…”
 Rules

• On Hart’s view:
– Rules are essentially normative
– They are irreducible to mere descriptions
of behavior that comports with the rule
Primary and Secondary Rules

• Primary rules are rules directly

regulating behavior
– Examples include: many elements of the
criminal law
• Secondary rules are “rules about rules”;
They regulate how other rules are
made, changed, applied and enforced.
– Examples include: rules in a constitution
about how to change the constitution or
what body is to interpret the other rules
The Need for Secondary Rules
• Hart illustrates the need for secondary
rules in a complex legal system by
imagining a society run only with
primary rules. He calls these ‘primitive
legal systems’ and thinks they constitute
a borderline legal system.
• Such a society suffers from three
defects:
– Uncertainty
– Static Nature
– Inefficiency
 Primitive Legal Systems

• In a primitive legal system, there are

few or no secondary legal rules.
• Undesirable behavior is controlled
through custom with no formal
provisions for:
– Making law
– Changing law
– Adjudicating disputes about law
– Enforcing law
Uncertainty of Primitive Legal Systems

• There is unclarity about the content of

law.
• Customs are not explicitly stated and
different people can have different
understandings of what the prevailing
customs are.
• This is especially true in borderline
cases.
Static Nature of Primitive Legal Systems

• Without formal rules for changing the

primary rules of a legal system, the
legal system can change only slowly
through widespread changes in the
customs.
• This inhibits the legal system’s ability to
respond to new situations
– Example: Paternity Fraud
Inefficiency of Primitive Legal Systems

• Without courts or police, a primitive

legal system has no effective and
efficient process for adjudicating legal
disputes and enforcing the law.
 Solving the Problems of Primitive
Legal Systems
• Uncertainty: Solved by instituting “rules
of recognition”. These delineate what is
and what is not a legal rule.
• Static Nature: Solved by instituting “rules
of change”. These specify how legal
rules can be amended or repealed.
• Inefficiency: Solved by instituting “rules
of adjudication”. These say how
disputes are resolved and legal rules
enforced.
 Interim Summary

• “Law is a union of primary and

secondary rules”
– Now we know what Hart thinks rules are.
– We know how he distinguishes primary
from secondary rules
– We know why he thinks secondary rules
are required in a complex legal system.
• What is this stuff about a “union”
 The Union of Primary and
Secondary Rules
• Law isn’t just a set of primary and
secondary rules.
• It is a structured hierarchy.
• Lower order rules are rules of law
because of the relation they bear to the
higher order rules.
– Higher order rules determine the legal
validity of lower order rules.
 The Hierarchy of Legal Rules

• The picture is something like this:

U.S. Constitution

Secondary Rule: States

have the power to create
laws not in conflict with the
Constitution.

Secondary Rule:
What the state legislature
passes and the Governor
signs is law.

Primary Rule:
Don’t kill.
Avoiding Regress in the Hierarchy

• Obviously, the hierarchy must end

somewhere or there will be an infinite
regress in explaining the legal validity of
rules.
• For Hart, the hierarchy ends in what he
calls ‘The Ultimate Rule of Recognition”
(or ‘URR’, for short).
The Ultimate Rule of Recognition

• The Ultimate Rule of Recognition

(URR) is:
– Supreme: Rules identified by the URR
are valid even if they conflict with rules
identified by other criteria, but not vice
versa.
– Ultimate: The URR determines the
validity of all other rules in the system
but no other rule determines the legal
validity of the URR.
 Validity of the URR
• Hart thinks questions about the legal validity of
the URR are confused. The URR is neither
valid nor invalid.
– Legal validity is a property of the subordinate legal
rules of a legal system.
• But, Hart thinks that the URR exists as a
complex social fact of the behavior and
attitudes of legal officials.
– This is a concession to the legal realist. How courts
and other legal entities behave and what attitudes
they have is crucial to understanding the core of a
legal system.
 Hart’s Concession to NLLT
• The sort of union of primary and
secondary rules Hart has described so
far could describe the rules of the
National Football League as much as of
a state legal system.
• To identify what is special about law in
the sense jurists are interested in it,
Hard makes a concession to the Natural
Law Legal Theorist.
Hart’s Minimal Natural Law Content

• Legal systems must address

themselves to fundamental problems of
“the human predicament”
– Human vulnerability
– Approximate equality of abilities and
aptitudes
– Limited altruism
– Limited resources
– Limited understanding and strength of will
 The Human Predicament

• These “mundane features of human

existence” create problems that social
institutions attempt to solve.
• Law, as it is understood by jurists, is an
attempt to “ameliorate the human
predicament”.
• This is a part of the “concept of law”.
 Law, Morality and the
Human Predicament
• Social morality addresses these same
problems of the human predicament.
• Therefore, there is a necessary content
to law and it is the same content that
moral institutions address.
• This constitutes a necessary connection
between law and morality.
 The Connection Between
Law and Morality

• Unlike the classical natural law legal theory,

this view does not see morality as a filter on
what can be a law.
– It applies only at the level of the entire legal
system—i.e., it is holistic rather than atomistic.
– It only requires a “content overlap”—i.e., that law
focus on the same problems that generate the
need for social morality.
• But it does concede that law cannot be
understood purely formally. We must attend
to the content of a system of rules to know if it
constitutes a legal system.
Minimal Nature of Hart’s Concession

• This connection between law and

morality is minimal because:
– It is compatible with gross immorality. The
requirement that the system of rules
“address the amelioration of the human
predicament” does not entail that it
addresses these matters justly.
– Even this minimal “content overlap”
requirement only applies at the level of the
entire system.
Hart’s Concession to Legal Realism

• Hart concedes that in determining the

content of the URR, the actual behavior
and attitudes of legal officials is crucial.
• Moreover, Hart rejects “mechanical
jurisprudence” and holds that legal rules
inevitably involve vagueness. In these
“penumbral areas” of legal rules, the
realist is right that law is whatever the
courts say it is.