HLA Hart (1907–1992), was a Professor of Jurisprudence at Oxford University (1952–1968). He was a leading figure who revived interest in the philosophy of law. In his leading work ‘The Concept of Law’ (1961) Hart sets out his positivist approach to investigating the phenomenon of law.
In ‘The Concept of Law’ Hart analyses the relation between law, coercion, and morality. Further, it is an attempt to clarify the question that whether all laws can be properly conceptualized as coercive orders or as moral commands. In Hart’s opinion there is no connection between law and coercion or between law and morality. He explains that law is of complex nature and classifying it as coercive orders or as moral commands will lead to oversimplifying the relation between law, coercion, and morality. According to him different kind of laws perform different kinds of social functions and if they are considered as merely coercive orders or moral commands it will lead to a false appearance of uniformity.
Hart has criticized the ‘Command Theory of Law’ formulated by John Austin in ‘The Province of Jurisprudence Determined’ (1832) which proposes that all laws are commands of a legally unlimited sovereign.
Criticisms of Austin’s Theory-
- Hart believes that Austin’s theory is not sufficient to distinguish between a good ruler and bad ruler, and a good law and bad law. This will in turn lead to state of nature. He explains that Austin’s model reinforces state of nature by providing that under Command Theory more powerful will become the sovereign and others will have no option but to follow the laws.
- Austin’s Theory is a descriptive theory of law. It does not adequately describe the reality of law. For e.g.- Limitation to law making powers due to constitution.
- Austin believes that every law is backed by a sanction but there are some laws which do not provide sanctions. For e.g. repealing law, declaratory law, definition clause, etc.
- Austin does not provide any rule for transition of power. In such a case, it is impossible to ensure legitimacy of the derivation of power by a new ruler. The only condition provided is that the new ruler should possess power to be a sovereign.
- External/Internal aspects of law are completely overruled which makes it hard to determine whether people actually believe in the law. In cases where people do not have conviction in the law, its violators become hero for the society.
Hart’s Concept of Law:
To understand Hart’s concept of law it is important to understand the concept of External Aspect of Law and Internal Aspect of law, as explained by Hart.
- External Aspect of Law: The external point of view is that of an observer who does not necessarily have to accept the rules of the legal system and will be able to analyze whether the rules of the legal system produce a pattern of conduct on the part of individuals to whom the rules apply. The external aspect enables us to predict the conduct of individuals.
- Internal Aspect of Law: The internal point of view, is that of individuals who are governed by the rules of the legal system. These individuals accept these rules as general standard of conduct. The internal aspect of rules creates a distinction between rules and habits. Habits may be viewed as regular patterns of conduct but are not as standards of conduct. Internal aspect helps in interpreting or explaining the conduct of individuals.
Hart in his theory of law propounds that there is a difference between “being obliged to follow” and “having an obligation to follow” a law. To reaffirm his theory, he gives an example of a Gunman. He says that suppose a man with a gun asks another individual to give his wallet to him otherwise he will shoot him. The individual will comply out of fear of sanction i.e. being shot. Here, he is following the order of the gunman because he was obliged to follow not because he felt he has an obligation to follow.
According to Hart, ‘being under an obligation’ and ‘being obliged’ are inherently two different things. Hart feels that being obliged/ forced to something is a psychological state dependent upon various external circumstances, on the other hand, having an obligation/ being under a duty does not require intervention of external circumstances. The obligation would remain because it is a norm NOT dependent on facts for its validity.
Hart focuses more on the internal aspect of law and thus believes more in concept of rule than command. He observes that command comes from political superior (powerful) to political inferior, on the other hand, Rule is bottom to up model and it is derived from the people itself as everyone is consenting by participation in its formation. Such formation of rule will reflect the internal aspect and people will have an obligation to follow law rather than being obliged to follow a law. He also believes that if everyone participates in rule making it will lead to optimal distribution of resources.
As rules would be emerging from the society, they would be customary rules and there may be many rules. Here two customary rules on a same subject matter may conflict with each other. Which one should be adopted as a uniform method for the whole society?
Since the rules would be emerging from the society it might so happen that multiple conflicting customary rules may emerge at the same time. This leads us to a question that which one of those conflicting rules should be adopted as a uniform method for the whole society?
Moreover, rules need to be changed from time to time. This need arises because rules are being derived from society, and society is dynamic. Who will change such rules? What will decide the validity of such rules? If somebody have broken a rule, who will pass the legal judgment? Whether merely having these rules is enough to decide legal issues?
To address these problems Hart propounded the concept of ‘Law as the union of Primary rules and Secondary rules’.
In the next article, we are going to discuss what are Primary rules and Secondary rules and also ‘Law as a union of Primary and Secondary Rules’.
[This blog is authored by Abhinav Gupta, III year student at National Law University, Jodhpur under the guidance of Professor S.K. Kaushik].