Hart's Theory of Law

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Copyright 2003 by Donald C. Hubin

Harts Theory of Law

Don Hubin


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H.L.A. Hart

Staunch critic ofAustins Positivism

Presents and

defends a form ofpositivism thatincorporatesinsights of naturallaw legal theoryand legal realism.

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


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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.


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Rules

Partial Analysis: Distinguishing:

As a rule

It is a rule that

Excessive contrary behavior

does not falsify the claim that it

is a rule that

Excessive contrary behavior

makes it not true that as a

rule

Contrary behavior is a violationContrary behavior is a mereexception

Normative (prescribes behavior)Descriptive of a regularity

It is a rule thatAs a rule


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Rules

On Harts view:

Rules are essentially normative

They are irreducible to mere descriptions

of behavior that comports with the rule


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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


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The Need for Secondary Rules

Hart illustrates the need for secondaryrules in a complex legal system byimagining a society run only withprimary rules. He calls these primitive

legal systems and thinks they constitutea borderline legal system.

Such a society suffers from three

defects: Uncertainty

Static Nature

Inefficiency


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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


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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 borderlinecases.


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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 thecustoms.

This inhibits the legal systems ability to

respond to new situations Example: Paternity Fraud


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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.


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Solving the Problems of Primitive

Legal Systems

Uncertainty: Solved by instituting rulesof recognition. These delineate what isand what is not a legal rule.

Static Nature: Solved by instituting rulesof change. These specify how legalrules can be amended or repealed.

Inefficiency: Solved by instituting rulesof adjudication. These say howdisputes are resolved and legal rulesenforced.


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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


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The Union of Primary and

Secondary Rules

Law isnt 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.


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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:

Dont kill.


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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).


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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 rulesidentified 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.


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Validity of the URR

Hart thinks questions about the legal validity ofthe URR are confused. The URR is neithervalid nor invalid. Legal validity is a property of the subordinate legal

rules of a legal system.

But, Hart thinks that the URR exists as acomplex social fact of the behavior andattitudes of legal officials.

This is a concession to the legal realist. How courtsand other legal entities behave and what attitudesthey have is crucial to understanding the core of alegal system.


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Harts Concession to NLLT

The sort of union of primary andsecondary rules Hart has described sofar could describe the rules of the

National Football League as much as ofa state legal system.

To identify what is special about lawinthe sense jurists are interested in it,

Hard makes a concession to the NaturalLaw Legal Theorist.


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Harts 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


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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 anattempt to ameliorate the human

predicament.

This is a part of the concept of law.


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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 thatmoral institutions address.

This constitutes a necessary connection

between law and morality.


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The Connection Between

Law and Morality

Unlike the classical natural law legal theory,

this view does not see morality as a filteron

what can be a law.

It applies only at the level of the entire legalsystemi.e., it is holistic rather than atomistic.

It only requires a content overlapi.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 legalsystem.


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Minimal Nature of Harts Concession

This connection between law and

morality is minimal because:

It is compatible with gross immorality. The

requirement that the system of rulesaddress 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.


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Harts 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 mechanicaljurisprudence and holds that legal rules

inevitably involve vagueness. In these

penumbral areas of legal rules, therealist is right that law is whatever the

courts say it is.

Hart's Theory of Law

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