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HART’S “MODIFIED POSITIVISM”:A CRITIQUE OF THE COMMAND THESIS

JURISPRUDENCELAW4420

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Herbert Lionel Adolphus Hart (1907-92) was Professor of Jurisprudence at the University of Oxford from 1952 to 1969.

Hart’s aim - to rescue legal positivism from the factual and conceptual traps into which Bentham and Austin had led it.

Hart was a utilitarian in philosophical outlook, and like Bentham and Austin, he saw public benefit in separating law from rules of other kinds.

But unlike them he realised that this cannot be done by identifying law exclusively with the commands of a sovereign. To do so is seriously to misunderstand the nature of law and the legal system.

The command theory does not account for all the different kinds of rules that we justifiably call law.

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Hart's basic view of the nature of a legal system was, therefore, developed as a result of his critique of Austin's command theory.

The weaknesses of Austin’ theory of law:

• He aspired to provide a scientific theory of law, hoping to explain law from the outside, in terms of regularities in observable behaviour. All the elements of his theory refer to such external, observable patterns.

• In general, he makes no reference to individuals' attitudes and beliefs, nor to the way in which participants in legal institutions understand their own conduct.

• Austin provides a behaviourist account of law which avoids all reference to mental states and attitudes.

• Austin is a naïve empiricist - he conceives laws in a pragmatic or behavioral rather than a conceptual manner.

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“Internal Point of View of Law”

This, according to Hart, is the basis of all of Austin's mistakes. It is impossible to define concepts like legal obligation and legal authority in `flatly descriptive' terms, i.e. purely based external observable conduct.

Hart - we cannot understand law unless we take into account the fact that those who participate in legal institutions take an internal view of the practice.

Hart was here influenced by hermeneutics and linguistic philosophy – interpretation.

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There is a difference between understanding human behaviour and understanding the physical world.

We cannot explain and understand social phenomena such as law by using modes of explanation modeled on the natural sciences, which view human behaviour purely 'in terms of observable regularities of conduct, predictions, probabilities and signs'.

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“Verstehen” or empathy

We need instead to attend to the view/perspective of those who participate in the relevant institutions. We need to adopt or share their internal perspective. We do need to understand the meaning and significance of their regular behaviour to them.

(Verstehen entails subjectively reliving the experience of the social actor or at least rethinking his or her thoughts – Max Weber)

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Hart’s central project

Hart says that he is not concerned to define law, i.e., to provide a rule for the correct use of the word. Rather, he wishes to 'advance legal theory by providing an improved analysis of the distinctive structure of a municipal legal system‘. This is the 'central case' of law and Hart is more interested in analysing the central case — the legal system of a modern state — than in debating whether borderline cases such as international law and customary law should or should not be described as 'law'.

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Hart’s criticisms of Austin’s command theory of law

• Austin's account of law is too simple. o It imposes on law a ‘spurious [false] uniformity', for it

is not the case that all laws order people to do or not to do certain things on pain of a sanction.

o there are many laws which are even more difficult to force into Austin's model. Hart points in this connection to laws which confer powers, whether on private individuals or officials – contracts; wills.

• There are certain typical features of legal systems that Austin's concept of sovereignty cannot explain.

o legal systems make provision for the uninterrupted continuity of law-making power when one law-giver succeeds another.

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o laws made by an earlier legislator, now dead or now defunct, can still be valid law even though that legislator is no longer habitually obeyed.

o of sovereign’s legally illimitable status: there are many legal systems in which we do not find a sovereign which is legally illimitable.

• Austin's theory of law as the will of a sovereign ruler is crude.

oThe concept of law as sovereign command backed by a threat overlooks the essential] element of obligation that characterises law.

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oIn normal society there are a vast number of rules that people observe, not because they fear retribution but because they think that it is right to do so. These rules are used by individuals to:

justify their actions, make claims of right, and criticise the conduct of others.

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Austin’s Law - the 'gunman situation writ large‘?

On Austin's picture, as HLA Hart points out, law is to be found in the 'gunman situation writ large‘. A gunman who accosts you, saying 'your money or your life', achieves what he wants by threatening to kill you. We say that you have been coerced or forced into handing over your money. Law, for Austin, is coercive in the same way. The only points of difference are that the gunman's orders are directed temporarily at a particular individual and the gunman is not the supreme source of commands in the society, whereas, for Austin, laws are general, are obeyed over time and issue from the sovereign. The key notion of a command backed up by a threat of evil is nevertheless shared by both the gunman's orders and the law's dictates. For Austin, force or coercion is the essence of law: the state is a gunman on a large scale.

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Law as a System of Rules

Hart conceives law as a social phenomenon: it can only be understood and explained by reference to the actual social practices of a community.

Why?

It is a fact that in order for a human society to survive as a collectivity or group, certain rules must exist.

Otherwise, we are all members “of a suicide club.”

They are a result of our human limitations - ‘Human vulnerability; ‘Approximate equality’: ‘Limited altruism’: ‘Limited resources’: ‘Limited understanding and strength of will’.

Hence, there is a necessity for rules to protect persons and property, and which ensure that promises are kept.

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Social rules must be distinguished from habits

A habit, even one which is common to many people, is merely a matter of convergent behaviour.

Example: most people drive to work rather than take public transport as a matter of habit. This is a fact about their observable behaviour and the statement which describes their habit is an 'is'-statement. There is no reason for their habit. The habit may explain why they drive to work but it does not justify their behaviour.

Social rules — the behaviour in question is not merely general; it is in addition perceived in a certain way.

It is treated by the members of a group 'as a general standard to be followed by the group as a whole': they see the rule as justifying a certain mode of behaviour and serving as a basis for criticizing those who disobey it.

Expressed in 'the normative terminology of "ought," "must," and "should," "right" and "wrong": you ought to drive on the left; it is wrong to drive on the right.

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Social rules therefore involve not only external conformity or regular conduct. They combine REGULAR CONDUCT with a 'DISTINCTIVE ATTITUDE‘. Hart calls this distinctive attitude a `critical reflective attitude‘. It consists in taking up what he calls the 'internal point of view' — 'the view of those who do not merely record and predict behaviour conforming to rules, but use the rules as standards for the appraisal of their own and others' behaviour'.

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HART’S SOCIAL RULES:

They constituted by

a form of social practice which comprises the regular following of a certain pattern of conduct by most members of the group

+a normative attitude (though not necessarily moral) to the regular pattern

of conduct.

This normative attitude — 'acceptance', in Hart's terminology — consists in taking the regular pattern of conduct as • a guide to behaviour, • a standard for evaluating of one’s own behaviour, and • a standard for assessing/criticising behaviour of others.

In short: social rules exist when the members of a group behave in a certain way as a rule.

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“Accepting” the rule is not the same as morally endorsing rules

Hart describes those who take the internal point of view towards a rule as `accepting' the rule.

But he makes clear that by this he does not mean that they must treat the rule as a legitimate standard of conduct, where legitimacy is understood as moral legitimacy or legitimacy from the perspective of ‘right reason’.

As Shapiro points out, Hart is clear that one does not have to believe in the moral legitimacy or ‘rightness’ of the law in order to accept its authority. In other words, people can accept rules without morally endorsing them.

To say that someone ought to do something is not necessarily to say that they are under a moral obligation to act in that way.

Consider: “Burglars ought to wear gloves”. This implies merely that from the perspective of self-interest — if they do not wish to be caught — burglars should wear gloves. It is clearly not to say that burglars are morally obliged to wear gloves.

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Rules and ObligationsFor Hart, the idea of a rule implies an obligation, although not all rules are thought to be obligatory.

Examples: Rules of social etiquette and rules of grammar. Although they are not just convergent habits but expected ways of doing things in a given society, there may not be a sense of obligation attached to them.

The sense of obligation arises from social pressure.

There are degrees of social pressure. • Pressure generated by common hostility producing feelings of guilt or shame -

moral rules imposing moral obligations.• Pressure by application of physical sanctions - a primitive or rudimentary kind

of law imposing legal obligations. Obligation rules arise out of the common belief that they are necessary to maintain social life or a prized feature of it – (remember the suicide club) Generally take the form of negative injunctions limiting freedom of individuals for the common good: Example: thou shall not kill; thou shall not steal; thou shall not dishonour thy promises.

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Hart’s conception of Law: The union of Primary and Secondary Rules

Hart - threats and force in Austin's theory of law may oblige us to act in certain ways but do not tell us why we ought to comply or why those who demand our obedience have a right to it. {Note Austin’s people’s habitual obedience to Sovereign as basis of law’s validity)

For Hart, a normative statement can be understood only in terms of RULES.

For rules have an internal aspect which consists in regarding a certain pattern of behaviour as a standard which ought to be followed.

Rules furnish reasons to comply.

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Hart - legal rules are divisible into: PRIMARY and SECONDARY

RULES.

And "the key to the science of jurisprudence" is to be found in the union of primary and secondary rules.

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Primary rules: Those rules that impose obligations or duties. They directly govern our behaviour by telling us what we ought and ought not to do — E.g. refrain from violence or keep our promises.

Every society, even the most primitive, displays obligation rules.

Function: to preserve a social order.

Some primary rules are universal; others are local/indigenous.

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Local primary rules of obligation arose spontaneously and predated establishment of formal legislatures, courts, and governments.

Primary rules of obligation in primitive society are not simply regularities of habits or convergent practices of individuals. They are rules considered by members to be binding and enforced by social sanctions.

Unlike the early positivists (Bentham and Austin) Hart had no doubt that these may properly be called laws.

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SECONDARY RULES

Small social groups bonded by kinship and shared beliefs living in a stable environment may survive by primary rules alone. But as society gets larger and more complex, primary rules prove insufficient and defective.

Hence, the serious need for a different type of rules - these are 'secondary rules of obligation'.

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Three chief defects in a primitive system of laws•First, no authoritative means of resolving doubts about the meaning and application of laws. This problem of legal uncertainties becomes a serious problem in larger societies, where most members are strangers and life is complex.

•Second, primary rules of obligation in primitive societies are static. New rules crystallise slowly. But old rules continue – outliving their value and functions; the pressure to conform dissipates slowly. Absence of legislative body prevents society from deliberately adapting laws to changing conditions.

(Is Hart closer to Bentham here on the view of customary rules?)

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•Third, primitive society has no organized courts system to authoritatively resolve disputes arising from the violation of laws, and no specialised agency to enforce judgments and mete out punishments.

Developed societies have secondary obligation rules that address these defects.

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The secondary rules provide for• the authoritative recognition of legal

rules, • changing legal rules and • adjudicating disputes concerning the

observance of legal rules.

These rules typically establish • courts, • legislatures and • executive governments.

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They define • the powers of these bodies, • lay down procedures for the exercise of powers

and • prescribe criteria for the recognition of primary legal rules.

Rules of this type, by their union with primary legal rules, bring about a legal system. Primary Rules + Secondary Rules = Legal System

Hart: Whereas primitive society has a ‘set’ of laws, modern society has a ‘system’ of laws.

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In most countries the secondary rules of obligation are set out in a written constitution. In the United Kingdom they are part of the customary constitution.

Written or unwritten, their existence depends on acceptance by legislators, courts, executive government, public service and other officials on whose conduct the legal system depends.

Whereas primary rules of obligation apply to all people, secondary rules have particular application to officials.

Official acceptance is the critical internal aspect that makes these rules possible.

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THE RULE OF RECOGNITION

Secondary obligation rules typically stand in a hierarchical relation to each other. This relation is determined by a superior rule that Hart called the rule of recognition. In most countries the rule of recognition is stated in the constitution.

Hart also rejected Austin's view that common-law is tacit sovereign commands, or that legislation is the ultimate source of all law. The common law is law, however precarious its existence.

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The rule of recognition provides the ultimate criterion for verifying the validity of laws. When parliament enacts laws and when judges find rules to be valid according to the rule of recognition, they are not obeying anyone's command.

It is possible to say that they are obeying the rule of recognition.

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Changes in the rule of recognition: • through peaceful transition, as when Britain granted its colonies degrees of self-government and finally independence. • through foreign conquest or • by violent domestic revolutionThe primary rules of obligation may remain largely unaffected while the struggle over the rule of recognition goes on.

Note: This was not the case, though, in Russia and China. Communist revolutions simultaneously overthrew existing regimes and fundamentally changed the country's primary legal rules.

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The existence conditions for a Legal System

On Hart’s view, it would be too much to require that the bulk of the population accept the rule of recognition as the ultimate criteria for legal validity:

Instead, Hart argues that what is necessary to the existence of a legal system is that the majority of officials take the internal point of view towards the rule of recognition and its criteria of validity.

All that is required of citizens is that they generally obey the primary rules that are legally valid according to the rule of recognition.

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Hart’s two minimum conditions sufficient and necessary for the existence of a legal system: • First, those rules of behavior which are valid

according to the system’s ultimate criteria of validity (i.e. the rules of recognition) must be generally obeyed, and• Second, its rules of recognition specifying the

criteria of legal validity and its rules of change and adjudication must be effectively accepted as common public standards of official behavior by its officials.

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International law

International law does not qualify as a legal system even by Hart's own theory, as it lacks an authoritative rule of recognition. Yet Hart had no difficulty in treating international law as law properly so called because he believed that there can be law without a legal system.

International law rules resemble the primary rules of obligation in a primitive society. They are law because sovereign states consider them as obligatory and use them to press their claims and to evaluate and criticise the conduct of other states.

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Hart took more seriously the practical observation that there can be no law where there is free use of violence. A society of individuals who possess nearly equal strength can descend to lawlessness unless individual use of force is restrained. International law leaves room for self-help and war. Often, even collective actions fail to stop aggression.

So what sustains international law? Hart argued that the high risks that war carries even for the most powerful aggressors provide a natural deterrent against international anarchy.

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Hart on Law and MoralityHart, like other positivists, denied any necessary connection between law and morality. Legal positivists appreciate the many ways in which the law is connected to morality. But they argue that validity of a law does not depend on such a connection.

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Positivists’ scientific and moral reasons for keeping the morality and the validity of law separate. Scientific thesis - it is simply not true that all rules

regarded as law satisfy a moral test. There are many laws in the law books that we may condemn as immoral. Yet we recognise them to be laws and in many cases we observe them willingly.

Moral case - we can make the law better if we clear up the confusion between the legality and the morality of laws. If we recognise that a morally bad enactment is a law, we can do something about it. If we deny that it is a law, it may never get corrected.

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Hart's position

Bear in mind the important distinction between 'law' and 'legal system'.

Hart distinguishes the question of the validity of particular laws from the question of the efficacy of whole legal systems.

Legal system exists when citizens generally accept and observe the primary legal rules of obligation and officials similarly accept secondary rules of recognition, change and enforcement of laws.

Acceptance is the basis of a legal system. Legal system that does not provide the most basic conditions for the survival of individuals may lose the fidelity of the people that sustains it. These are conditions that secure life, liberty, property and the performance of contracts.

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Hart agreed that a legal system requires a minimum content of natural law. The legality of particular laws that offend the morals of the community is a different question. A society may have law with or without a legal system. A legal system that is effective may produce laws that many consider to be morally repugnant. Yet they will be valid laws if they satisfy the criteria set by the rule of recognition.

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There is an internal aspect to both primary and secondary rules of obligation. An important question is whether the internal aspect of a legal rule necessarily adds a moral dimension to the rule. The internal aspect reflects the sense of having an obligation, as opposed to 'being obliged' by fear of sanction.