H. L. A. Hart’s The Concept of Law is a systematic treatment of central issues in legal philosophy and jurisprudence that enlivens these areas of inquiry with fresh perspectives and new ideas. Hart suggests that the work may be viewed in a number of ways. From the lawyer’s perspective, it can be regarded as an essay in analytical jurisprudence, that is, an effort to provide a general analysis of law and major legal concepts. Philosophically, Hart employs the method and style sometimes called linguistic analysis, with close attention to the definitions of and distinctions among key terms and expressions. Further, the work constitutes an essay in descriptive sociology in the sense that its task is to elucidate law as a social phenomenon. One of Hart’s major theses is that law is best understood as a method of social control related to, but distinct from, coercion and morality. Other traditional theories of law failed to pay sufficient attention to the differences, assimilating law too closely to coercion (command theories) or to morality (natural law theories).

The Command Theory of Law

Hart begins the substantive portion of the book with an extended critique of nineteenth century jurist John Austin’s command theory of law. Austin sought to analyze law in terms of the behavioral elements of commands, habits, and obedience. Law is the command of the superior (sovereign) to those who have acquired a habit of obedience (subjects). Commands are expressions of a wish that others do or refrain from some action, accompanied by a threat of sanctions for noncompliance. The sovereign is a person or group who issues commands that are obeyed and who does not habitually obey another person. This model of law as orders backed by threats, despite its power, fails to capture some salient and familiar features of modern legal systems and cannot provide a sound basis for understanding central legal notions such as authority and obligation.

Hart presents several objections to Austin’s model. First, Austin’s account is at variance with the content of laws found in developed legal systems. Many laws do not impose duties and are not enforced by sanctions but instead confer powers on individuals and groups. Examples include legal rules defining how to make a valid will or contract. Second, the plausible idea that the lawmaker may be bound by laws is absent in the command theory. Laws, unlike most commands, possess a general character, applying to legislators and ordinary citizens alike. Third, in many legal systems, customs come to have the force of law...

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The Idea of a Rule

After diagnosing the problems with the command theory, Hart proposes a “fresh start,” one giving a prominent role to the idea of a rule. He begins by making several distinctions. The first is between primary and secondary rules, invoked earlier in his attack on the command theory. He puts this idea to constructive use, with the claim that law is best understood as a union of primary and secondary rules. It is possible, Hart grants, to imagine a small, stable society that is a regime of only primary rules (rules imposing duties on the community’s members). However, for most human societies, such an arrangement would be highly inefficient. Among its defects would be uncertainty about what the rules are and how they apply, the inability to adjust to changing situations because of the static character of such rules, and the difficulties of enforcing such rules without mechanisms and procedures to detect and deal with violations. Hart argues that secondary rules (rules about primary rules) are needed to remedy these defects. They include a rule of recognition (to identify authoritatively primary rules), rules of change (to specify how to enact new rules and to repeal or modify old ones), and rules of adjudication (to establish procedures and to authorize individuals and agencies to ascertain violations of primary rules and to provide enforcement mechanisms). Although Hart characterizes the addition of these secondary rules to a regime of primary rules as a change from the prelegal to the legal, his point is conceptual rather than historical.

Another distinction emphasized by Hart is between “being obliged” and “being under an obligation.” The command theory, focusing on the coercive aspects of law, misleadingly portrays an obligation imposed by a legal rule as if it were identical to being obliged by a threat of force. In this account, legal authority is really no different from the armed person forcing individuals to hand over their money. Missing from this picture is the point of being under an obligation: Rules...

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The Role of Judges

A final major issue considered in The Concept of Law concerns the nature of adjudication. Hart attempts to steer a middle course between the formalism or “mechanical jurisprudence” often associated with British judicial practice and the “rule skepticism” defended by American legal realists in the 1920’s and 1930’s. The former sees the role of judges as finding relevant legal rules and strictly applying them to particular cases. Hart agrees with the legal realists that such a view of judicial practice is misleading, for legal rules are seldom applied in such a mechanical way nor can they be, because they are framed in general terms that are vague and “open textured.” Hart cites as an example the term “vehicle” in an ordinance prohibiting vehicles from a public park. This rule may be readily interpreted as banning cars and trucks, but it is not clear whether it excludes tricycles and skateboards. Judges must employ discretion in applying rules to such indeterminate or hard cases. Hart thinks that legal realists who regard judges as unbound by rules (“rule skeptics”) overlook how rules guide judges in clear cases. In the hard cases, Hart submits that judges do appeal to factors such as legislative purpose, consistency, and even equity and other moral and political principles. He concedes that in some hard cases, the law is so indeterminate and the other guiding factors so uncertain that judges in fact make law rather than find it.

This view of adjudication developed by Hart has been a source of...

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Additional Reading

Bayles, Michael. Hart’s Legal Philosophy. Dordrecht, Netherlands: Kluwer Academic Publishers, 1992. This careful and thorough analysis of H. L. A. Hart’s legal philosophy places Hart’s contributions in a wider context. The author is sympathetic to most of Hart’s positions, defending them against various criticisms.

Boos, Eric J. Perspectives in Jurispurdence: An Analysis of H. L. A. Hart’s Legal Theory. New York: Peter Lang, 1998. This book examines the perpetual controversy between legal positivism and natural law and explores Hart’s approach to the link between law and morality.

Devlin, Patrick. The Enforcement of Morals. London: Oxford University Press, 1965. This collection of Patrick Devlin’s papers and lectures contains a well-developed defense of legal moralism and an interesting appraisal of the complex role of criminal law.

Dworkin, Ronald. Law’s Empire. Cambridge, Mass.: Belknap Press, 1986. This work is the most comprehensive and systematic development of Dworkin’s views about the nature of law and adjudication. He continues his critique of Hart and legal positivism, and emphasizes the importance of interpretation in trying to understand law and adjudication.

Dworkin, Ronald. Taking Rights Seriously....

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