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PROFESSOR H. L. A. HART'S
CONCEPT OF LAW
ROBERT S. SUMMERS*
I INTRODUCTION
T HIS ARTICLE is a critical exposition of The Concept of Law,'
a book by H. L. A. Hart, Professor of Jurisprudence at the Uni- versity of Oxford. Published in 1961, The Concept of Law is surely the most important book in the field of analytical jurisprudence to appear for many years. In this book, Professor Hart for the first time attempts to state his views on many of the traditional problems of legal philosophy in a comprehensive and systematic way. In pre- paring this article, I have drawn on writings of Professor Hart that antedate publication of The Concept of Law,^2 and have also drawn ***** B.S. 1955, University of Oregon; Fulbright Scholar, University of Southhampton, England, 1955-56; LL.B. 1959, Harvard University. Associate Professor of Law, Uni- versity of Oregon; Visiting Associate Professor of Law, Stanford University, 1963-64; Member, Oregon Bar. While preparing this article, the author profited from conversations and cor- respondence with several philosophers, including Frank Ebersole, University of Oregon, and Herbert Morris, University of California at Los Angeles. Responsibility for error or misjudgment, however, (^) remains solely the author's. 1 (1961). Oxford University Press, 261 pp. All page references in the text of this article are to THE CONCEPT OF LAW. The (^) notes to each chapter, pp. 232-257, are an important feature of the book. For criticisms of Professor Harts use of the "notes" device, see Blachshield, Hart's Concept (^) of Law, 68 ARcHrv FDr REcarrs UND SOZIAL- PHmOSOPHIE 329, 331 (1962). 2 In addition to Tim CONCEPT OF LAw, Professor Hart's writings in legal philosophy include the following: On philosophy of law generally, Introduction to JOHN AUSTIN, THm PROVINCE OF JURISPRUDENCE D'sxRamINE AND THE USeS OF THE STUDY OF JURISPRU- DENCE (1954); Analytical Jurisprudence in Mid-Twentieth Century: A Reply to Pro- fessor Bodenheimer, 105 U. PA. L. REv. 953 (1957); Definition and Theory in Jurispru- dence, 70 L.Q. REV. 37 (1954); Dias and Hughes on Jurisprudence, 4 J. Soc. PUB. T.L. 142 (1957); Legal and Moral Obligation, EssAYs IN MORAL (^) PHLOSOPHY 82 (Melden ed. 1958); Philosophy (^) of Law and Jurisprudence in Britain (1945-1952), 2 AM. J. CoMP. L. 355 (1953); Positivism and the Separation of Laws and Morals, 71 HARV. L. REV. 593 (1958); ScandinavianRealism, 1959 CAMB. L.J. 233; Theory and Definition in Jurispru- dence, Supp. Vol. 29 PROCEEDINGS Or THE ARISTOTELIAN SOCIETY [hereinafter cited as P.A.S.] 213 (1955). On the subject of causation in the law, HART & HONORA, CAUSATION IN THE LAW (1959); Causation in the Law, 72 L.Q. REv. 58, 260, 398 (1956). On the jurisprudence of criminal law, PUNISHMENT AND THE ELIMINATION OF REsPONSIBILITY (1961); Acts of Will and Responsibility, JUBILEE LECTURm OF THE FACULTY OF LAW, UNIVERSITY OF SHEFFIELD 115 (Marshall ed. 1960); Immorality and Treason, 62 THE LIsTENER 162 (1959); Legal Responsibility and Excuses, DETRMxINISM (^) AND FREEDOM 81 (Hook ed. 1958); Murder and the Principles of Punishment: England and the
DUKE LAW JOURNAL on some of the reviews of the book that have appeared in law and philosophy journals. Unlike many legal philosophers, Professor Hart is a professional philosopher as^ well^ as^ a lawyer.^3 After^ receiving^ a^ B.A.^ degree^ in philosophy from Oxford, he studied law, and in 1932, was admitted to the bar. Thereafter he practiced law for^ nine^ years^ as^ a^ chancery barrister before becoming associated with the British War Office where he^ remained^ during^ World^ War^ II.^ Following^ the^ war, he taught philosophy at New College, Oxford until 1952 when he was appointed Professor of Jurisprudence in the University of Oxford.^4 Many scholars would agree that during the past decade no one has done more original and illuminating work in the field of Anglo-American jurisprudence than Professor Hart. During this period, he adumbrated the central ideas of The Concept of Law in a number of articles and essays. With A. M. Honor6, he wrote Causation in the Law, 5 a book that appeared in 1959 and was very well received by both lawyers and philosophers. He also, during this period, visited the United States twice,^ lecturing^ widely^ while here. 6
United States, 52 Nw. U.L. REV. 433 (1957); Negligence, Mens^ Rea^ and^ Criminal^ Re. sponsibility, OXFORD^ ESSAYS^ IN^ JURISPRUDENCE^^29 (Guest^ ed.^ 1961);^ Prolegomenon^ to the Principles of Punishment, 60 P.A.S. 1 (1960); Should The Death Penalty Be Abolished?, 55 THE LISTENER 87 (1956); The Use and Abuse of the Criminal Law, 4 OXFoRD LAWYER 7 (1961). For his book reviews, see DEL VECCHIO, JUsTICE (1952), 28 PHILOSOPHY 348 (1953); FRANK, LAW AND THE MODERN MIND^ (1949),^60 MIND^^268 (1951);^ HAGERSTROM,^ IN- QUIRIES INTO THE NATURE OF LAW AND MORALS (1953), 30 PHILOSOPHY 369 (1955); KANTOROWiZ, THE DEFINITION OF LAW (1958), 69 PHIL. REv. 270 (1960); KELSEN, THE COMMUNIST THEORY OF LAW (1955), 69 HARD. L. REv. 772 (1956); LLOYD, INTRODUCTION TO JURISPRUDENCE (1959), 77 L.Q. REV.^^122 (1961);^ WASSERSTROM,^ THE^ JUDICIAL^ DE- CISION (1961), 14 STAN. L. REV. 919 (1962). 3 His technical philosophical writings include the following: A Logician's Fairy Tale, 60 PmL. REV. 198 (1951); Are There Any Natural Rights?, 64 PHIL. REV. 175 (1955); Decision, Intention and Certainty, 67 MIND 1 (1958); Is There Knowledge by Acquaintance?, Supp. Vol. 23 P.A.S. 69 (1949); Signs and Words, 2 PHIL. Q. 59 (1952); The Ascription of Responsibility and Rights, 49 P.A.S. 171 (1949). Acknowledgments of indebtedness to Professor Hart appear in the prefaces of several recent books of im- portance in philosophy. See HANIPSHIRE, THOUGHT AND ACTION (1959); HARE, THE LANGUAGE OF MORALS (1952); and STRAWSON, INDIVIDUALS: AN ESSAY IN DESCRIPTIVE METAPHYSIcS (1959). It is also a tribute to Professor Hart's standing as a professional philosopher that during 1959-60 he was President of the Aristotelian Society,^ a^ leading organization of professional philosophers in England. ' Over the past one hundred years, the chair of jurisprudence now held by Profes- sor Hart has been held by six other men, including Sir Henry Maine, Sir Paul Vino- gradoff, and Sir Frederick Pollock. r (1959). Oxford University Press, 454 pp. For an exceptionally fine review of this book, see Hancock, Book Review, 6 NATURAL L.F. 143 (1961). 6 In 1956-57, he was a visiting professor at Harvard Law School, and during the fall
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DUKE LAW JOURNAL Professor Hart thinks of The Concept of Law as a synthesis of his answers to three basic questions:^ "How^ does^ law^ differ^ from and how is it related to orders backed by threats? How^ does^ legal^ obliga- tion differ^ from^ and^ how^ is^ it^ related^ to,^ moral^ obligation?^ What are rules and to what extent is law an affair of rules?" (13) I^ have divided my presentation and criticism of Professor Hart's^ answers^ to these questions into four parts: Nature of a Legal System, Existence of a Legal System, Law and Morals, and Justice. In^ a^ further^ and final part of this article,^ I^ have described^ and illustrated^ some^ of Professor Hart's methods of analysis.
II NATURE OF A LEGAL SYSTEM Professor Hart claims to have found the key to the science of jurisprudence in what he calls the "combination^ of^ primary^ and secondary rules." (79) His view^ that^ law^ consists^ largely^ of^ rules has also been held by those who have claimed to have found the key to the^ understanding^ of^ law^ in^ coercive^ commands^ and^ by^ those^ who have claimed to have found it in the relation of law to morality and justice. 13 Thus the revelation that law is largely an affair of rules should startle no one. It is one thing, however, to see^ that rules are central; it is quite another thing to make use of this fact, as Professor Hart does^ in^ The^ Concept^ of Law,^ to^ illuminate^ the^ dis- tinctive structure of law and to elucidate such basic legal concepts as sovereignty, legal validity, and obligation. In The Concept of Law, Professor Hart carefully analyzes the notion of a social rule. He distinguishes rule-governed behavior from habitual behavior, and distinguishes legal rules from standards and from orders backed by threats. He also illuminatingly^ compares legal rules^ and^ moral^ rules,^ a^ topic^ to^ be^ considered^ in^ Part^ IV^ of this article. An important feature of social rules can be brought out by com- paring behavior according to rules with habitual behavior. To the "external" (^) observer, these (^) types of behavior (^) are indistinguishable, for to^ him^ each^ appears^ to^ be^ regular^ and^ uniform.^ Professor^ Hart stresses, however, that rules, unlike habits, also have an "internal aspect"; from the "internal point^ of^ view"^ of^ those^ who^ abide^ by them, rules are generally regarded^ as^ reasons^ or^ justifications^ for 13 What follows in the remainder of this part of the paper is set forth in detail in chs. 2-6 of Tnm CONCEPT OF LAW.
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action, and violations thereof are generally open to criticism. Thus, for Professor Hart, rules are "normative"; habits are not. This means, among^ other^ things,^ that^ rules^ can^ confer^ rights^ or^ authority; mere habits cannot. A legal rule may be thought of, therefore, as a "standard" of behavior to which people^ are^ supposed^ to^ conform.^14 There^ is^ an- other use of the word "standard" known to legal thinkers. Thus we sometimes speak of "due care" and "commercial reasonableness" as standards. Such standards are typically vague and may be applied to highly variable states of fact. Professor Hart says standards are necessary in our law because, in view of the highly variable nature of possible combinations of circumstances, it is not always possible to identify in advance the relevant features of^ cases^ to^ which^ rules might be^ applied.^ A^ formulation^ incorporating^ a highly^ vague standard applicable to unique states of fact is not, in Professor Hart's terms, a rule but is, instead, a standard. Others might^ say^ that^ such a formulation is, nonetheless, a rule, though a very indeterminate one. According to one tradition of jurisprudence, legal rules are essen- tially orders backed by threats. And there is an analogy here. One who threateningly orders another to do something renders the latter's conduct in some sense "non-optional" or "obligatory," and, where there is law, human conduct is similarly made in some sense non- optional or obligatory. But^ Professor^ Hart^ takes^ pains^ to^ distin- guish legal^ rules^ from^ orders^ backed^ by^ threats.^ Rules,^ he^ tells us, apply to classes of persons and to^ general^ courses^ of^ conduct.^ Orders are ordinarily individuated, face-to-face directives enjoining particu- lar courses of conduct. Orders are also ordinarily temporary in duration-their point is gone once they have been executed. But rules of law are of a more enduring character-continued adherence to them^ is^ the^ very^ point^ of^ their^ existence.^ Orders^ customarily apply only to the "orderee," whereas legal rules usually apply to the lawmaker as well. Orders are deliberate acts.^ Some^ legal^ rules, e.g., those consisting of or based^ on^ custom,^ do^ not^ always^ come^ into existence as^ a^ result^ of a^ single,^ deliberate^ act. For Professor^ Hart,^ perhaps^ the^ most^ significant^ differences^ be- tween legal rules and orders are these: (1) orders direct people to do or refrain from action, but many legal rules do^ not^ do this- 2" For an illuminating discussion of Professor Hart's views on standards, see Morris, Book Review, 75 HARV. L. Rav. 1452 (1962).
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CONCEPT OF LAW obliged and to have an obligation are^ different^ though^ frequently concomitant things." (86) The legal realists' predictive theory of obligation,^ according^ to
which a person has an obligation if^ and^ only^ if^ "hostile^ reaction"
to deviation is predictable, distorts the characteristic "internal"^ use of statements of obligation which^ is^ not^ to^ predict^ but^ to^ say^ that a person's case falls under a rule.^ The^ predictive theory^ limits^ itself to the "external" point of view towards rules^ which^ is,^ in^ turn, limited to the outward, observable regularities^ of^ social^ behavior. According to Professor Hart, this view simply cannot reproduce^ the way rules of obligation function in the lives of^ those^ who^ live^ under the rules and^ use^ them^ as^ guides^ to^ conduct^ and^ as^ the^ bases^ for claims, demands,^ admissions,^ criticism,^ or^ punishment. I have explained the^ substance^ of^ Professor^ Hart's^ analysis^ of obligation and have explained that his "primary" rules are^ rules^ of obligation which impose duties, i.e., require people to^ do^ or^ abstain from certain actions, whether they wish to or not. Such rules are^ to be contrasted with secondary rules under which human beings "may by doing or saying certain things introduce new rules of the^ primary type, extinguish or modify old ones, or in various^ ways^ determine their incidence or control their operations." (79) There are several types of secondary rules in Professor Hart's scheme: rules^ specifying criteria for identification^ of^ valid^ rules^ of^ the^ legal^ system,^ rules empowering legislators and^ courts^ to^ legislate^ and^ adjudicate, and rules specifying sanctions.^ In^ essence,^ primary^ rules^ impose^ duties while secondary rules "confer^ powers,^ public^ or^ private."^ (79) Conceivably, a society could have primary rules of obligation but no secondary, "power conferring" rules. This appears to^ be true of^ some^ primitive^ societies.^ Such^ a society^ is^ held^ together only by that general attitude of the group toward its own standard modes of behavior (the inner point of view) in terms of which^ Professor Hart has characterized rules of obligation. Because of^ the^ nature of human beings^ and^ because^ of^ the^ nature^ of^ the^ human^ condition, we would expect to^ find^ that^ in^ such^ a^ society^ its^ rules^ of^ obligation consist largely^ of^ rules^ restricting the^ free^ use^ of^ violence,^ theft,^ and deception. Humans^ are^ tempted^ to such^ conduct,^ and^ these^ temp- tations must be^ repressed^ if^ they^ are^ to^ live^ together^ in^ society.^ But even if such rules were adhered^ to, such^ a^ society^ would,^ says^ Pro- fessor Hart, have to^ be^ small^ and^ closely^ knit.^ Under^ any^ other conditions, such a simple form of social^ control^ would^ prove^ defec-
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tive in^ several^ important^ ways.^ In^ what^ might^ be^ viewed^ as^ the^ most original part of The Concept of Law, a part that extends over only seven pages, (89-96) Professor Hart identifies the ways in which such a simple form of social control would be defective and advances his thesis that these defects^ are^ to^ be^ remedied^ by^ the^ introduction^ of what he calls secondary rules. The introduction of such rules is, in his^ words,^ to^ "be^ considered^ a^ step^ from^ the^ pre-legal^ into^ the legal world." (91) In the first place, in a regime of primary rules doubt might arise as to whether a rule is a rule of the regime. In modem systems, such doubts are resolved by reference to what Professor Hart calls a "rule of recognition." This rule specifies criteria^ for^ identifying^ which rules are to count as rules of the^ system.^ But^ since^ such^ a^ rule^ is not a duty-imposing rule, not^ a^ primary^ rule^ of^ obligation,^ it^ can- not, by hypothesis, exist in the simple regime of primary rules. The effect of this is that in such a regime there may be persistent uncer- tainty as to what the rules are. By introducing a rule of recognition, this defect is remedied; moreover, the primary rules of obligation are given a common or identifying mark and thus come to form a system. Professor Hart stresses that the puzzling concept of legal validity is to be analyzed in terms of the use by officials of the system of a rule of recognition specifying criteria by which the rules of the sys- tem are to be identified. Others have sought to analyze this concept in terms of whether the rules in question constitute commands of a sovereign habitually obeyed. Professor Hart shows that the simple notion of a habit cannot yield the concept of legal validity. It can- not account for the persistent validity of laws long after their sover- eign creator has died. Nor can it account for the continuous validity of laws following the onset of a^ new^ sovereign^ who^ has^ not^ been sovereign long enough for^ habits^ of obeying^ him^ to^ develop.^ The persistent and continued validity of laws can only be explained in terms of the acceptance and^ use^ of^ a^ rule^ identifying^ the^ criteria^ of valid laws. Professor Hart acknowledges that in modem systems the rule of recognition is highly complex,^ and^ is^ seldom^ formulated^ as^ such. He shows, too, how the "sources of law" idea is to be^ explained. The criteria of^ legal^ validity^ may^ take^ one^ or^ more^ of^ a^ variety^ of forms such as^ reference^ to^ an^ authoritative^ text,^ to^ legislative^ enact- ment, to^ past^ decision,^ to^ customary^ practice,^ or^ to^ general^ declara-
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DUKE LAW JOURNAL adjudication specifying qualifications for judges, conferring^ juris- diction, prescribing procedure, etc. (94, 29) We can now see what Professor Hart means when he speaks of a union of primary and secondary rules. By introducing^ into^ a regime of primary rules such secondary rules as rules of change, rules of adjudication, rules relating to sanctions, and a rule of recognition, a "union" of primary and secondary rules is formed in two ways. First, the sheer introduction of such rules into the regime is a com- bination or "union" of these rules with primary rules. Secondly, the secondary rule of recognition "unites" all the rules of the regime in that all satisfy the criteria of validity specified^ by^ this^ rule. For Professor Hart, this "union" of primary and secondary rules is at the "centre" of a legal system. He admits, however, that it is not the whole, and says that "as we move away from the centre we shall have to accommodate.^.^.^ elements^ of^ a^ different^ character." (96) Though Professor Hart is not entirely clear about this, it ap- pears that the other "elements" to which he refers include (1) the "open (^) texture" of legal rules and (^) (2) the distinctive (^) relationships of law to morality and justice. The latter topic will be considered in Part IV of this article. Professor Hart recognizes the open texture of legal rules as an additional element in a system of law apparently because he is aware that rules alone do^ not^ solve^ all^ legal^ problems. Rules are "open textured"; they have a penumbra of uncertainty. At the borderlines, officials must take into^ account^ a^ variety^ of^ fac- tors to determine what should be done. This is a fact that has led some legal realists to become highly skeptical of the very existence of rules, a view which Professor Hart ably criticizes.'^5 So much for Professor^ Hart's^ picture^ of^ a^ legal^ system.^ In^ an article such as this it is of course not possible to do justice to the richness and^ complexity^ of^ Professor^ Hart's^ analysis.^ I^ believe, however, that I have fairly summarized his^ view^ of^ the^ nature^ of a legal system. Now for criticism. Criticism of a work such^ as^ The^ Concept^ of^ Law^ is^ difficult^ for two reasons. First, the work is on the whole very well done; thus the critic must often be reduced to comments that to some may seem insignificant. Secondly, there is difficulty in^ identifying^ relevant and fair standards of criticism. I have sought to solve this second difficulty by focusing on Professor Hart's own statements of purpose and claims for his analysis and also by analyzing his criticisms^ of 15 See^ especially^ ch.^ 7.
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CONCEPT OF LAW others to determine what standards he considers appropriate. In this section^ of^ this^ article,^ my criticisms^ consist^ first^ of^ an^ effort^ to show that Professor Hart has^ claimed^ too^ much^ for^ his^ union^ of primary and secondary rules, and secondly, of^ an^ effort^ to^ show^ that Professor Hart is himself guilty of^ some of^ the^ same^ "reductionist" tendencies for which he^ sometimes^ criticizes^ others. Professor Hart does not claim that his union of primary and secondary rules is to be found wherever there is a regime called law. He does, however, claim^ that: If we stand back and consider the structure which has^ resulted^ from the combination of primary rules of^ obligation^ with^ the^ secondary^ rules of recognition, change and adjudication, it is plain that we have here not only the heart of a legal system, but a most powerful^ tool^ for^ the analysis of much that has puzzled both the jurist and the political theorist. Not only are the specifically legal concepts with which the lawyer is professionally concerned, such^ as^ those^ of^ obligation^ and^ rights,^ validity and source^ of^ law,^ legislation^ and jurisdiction,^ and^ sanction,^ best eluci- dated in terms of this combination of elements. The^ concepts^ (which bestride both law and political theory) of the state, of authority, and^ of an official require a similar analysis if the obscurity which still lingers about them is to be dissipated. (95)
But is^ it^ a^ combination^ of^ primary and^ secondary^ rules^ that^ enables Professor Hart^ to^ clarify^ such^ basic^ and^ important^ concepts^ as^ legal validity and obligation? He uses only the notion of a "primary rule" to elucidate the concept of obligation. He uses only the notion of a "rule of recognition" to elucidate the concept of legal validity. In fact, he does not use a combination of primary and secondary rules to elucidate any specific concepts.^16 Moreover, it seems appropriate to^ say^ that^ what^ is^ both^ important and relatively new in Professor Hart's approach to the analysis of such basic concepts as legal validity and obligation is his use of the distinctions between internal and external points of view^ toward standards of behavior and internal and external statements about rules. At one point, he appears to admit as much. (96) To me, the chief merit of Professor Hart's analysis of law as a union of primary and secondary rules is this: by setting forth a pic- II Professor Hart might mean only that one or the other of the two types of rules is needed to elucidate specific concepts such as obligation and legal validity. See^ HART, Tim CONCEr OF LAw 151.^ If^ this^ is^ his^ point,^ it^ should^ not,^ for^ the^ reasons given^ in the text, be^ made^ by^ stressing^ the^ union^ of^ primary and^ secondary^ rules.^ This^ union, in his analysis, is relevant only to the elucidation^ of^ the^ general^ concept,^ the^ "Legal System."
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say: "No, laws are laws, not rules." In support of his case, he might point out that while laws have much in common with rules, e.g., rules of games, laws are also very different from such rules (and a fortiori different from other kinds of rules). Laws are made, changed, interpreted, and applied in ways characteristic only of laws. Moreover, the anti-reductionist might point out that there are risks of distortion in thinking of laws as rules. This way of looking at laws invites identification of laws with rules such as rules of games. Playing a game is very different from life under law, notwithstanding adherents of the sporting theory of justice. Games are for fun; law is not. This means that many of the considerations affecting the formu- lation of rules of games will differ radically from the kinds of con- siderations affecting the formulation of laws. Finally, much of our life under law cannot be reasonably (^) thought of in terms of an analogy to rules. Not only must "standards" (^) of discretion be "ac- commodated," but a place must likewise be made for orders: judicial orders, executive orders, legislative orders-all of which have the force of law.2 0^ And what of the voluminous regulations of adminis- trative agencies? And what of general "principles" (^) such as the prin- ciple that one should not unjustly benefit at another's expense? Are orders rules? Are regulations rules? Are principles rules? Each is a part of law. Perhaps law is law, and not another thing. Can all rules be reduced to two classes: primary or "duty- imposing" rules and secondary or "power-conferring" rules? The rules Professor Hart calls primary rules do all appear to be duty- imposing rules. But the rules (^) he calls secondary are certainly not all power-conferring rules. Thus, for example, his rule of recogui- tion does not confer power, but rather specifies criteria. 21 Many (^) of the rules that he says "lie behind" courts do not confer power. This is true of rules of procedure and (^) rules of evidence. "Confer" is an active verb. Rules specifying the way a valid will is to be made do not confer power. There are, however, "true" power-conferring rules, rules of jurisdiction and constitutional rules conferring legis- lative power. Perhaps secondary rules have nothing in common as a class, ex- 20 Hans Kelsen has argued that it is misleading to characterize law in terms of rules precisely because such a characterization cannot account for judicial orders. See KELSEN, GENERAL THEORY OF LAW AND STATE 38 (1961 ed.). See also Singer, Harts Concept 21 See of Cohen, Law, (^) 60 Book Review, J. oF PHiLosoPIY 71 MIND 197, 395, (^210) 408 (1963). (1962).
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DUKE LAW JOURNAL cept that they are non-duty imposing rules. 22 But Professor Hart suggests that such rules may be reduced to a single type^ also^ because they are alike in that the^ legal^ effect^ of^ non-compliance^ therewith^ is nullity. This may^ be^ disputed.^ The^ result^ of^ failure^ to^ comply with the Statute^ of^ Wills^ is^ nullity.^ But^ judgments^ in^ excess^ of jurisdiction stand^ until^ quashed.^ (Professor^ Hart^ acknowledges this, but calls it a^ "complication.")^ Unconstitutional^ statutes^ are given effect until declared unconstitutional.^ Void marriages^ are not always void ab initio. Before we turn to the next point, it should^ be observed^ in^ fair- ness to Professor Hart that, in his view, a "full detailed taxonomy^ of the varieties^ of^ law^ ...^ still^ remains^ to^ be accomplished."^ (82)^ He also acknowledges that his categories of "duty-imposing" and^ "power- conferring" rules are "very rough."^ (32)^ This^ being^ true,^ he might well have chosen a different terminology. Can Professor Hart's^ secondary^ rules^ be^ reduced^ to^ three^ types: a rule of recognition, rules of change, and rules of^ adjudication? Within his scheme of secondary rules, Professor^ Hart^ does^ not^ con- sistently identify the rules specifying sanctions as separate from^ rules of adjudication. The former are independent of^ the^ latter.^ Al- though in^ most^ modern^ legal^ systems^ the^ same^ body^ has^ the^ power both to adjudicate and to direct the application of^ sanctions,^ this need not be the case. Further, the functions of^ these two^ types^ of %rurles differ significantly, and for Professor Hart^ the^ test^ for^ a^ dif- iference in^ type^ is^ a difference^ in^ function.^ (38)^ Rules^ of^ adjudica- ition .ure the defects of uncertainty and^ inefficiency^ that^ result^ from ithe absence of^ an^ authoritative^ mechanism^ for^ resolving^ doubts obout the applicability^ of^ rules.^ Rules^ specifying sanctions^ have the effect of centralizing and ordering the administration of force and other forms of pressure. In^ the^ absence^ of^ an^ official^ monopoly of sanctions, widespread use of self help would be^ inevitable,^ and this in turn would result in violence. Can the various criteria for identifying valid rules of the system be reduced to^ and^ formulated^ as^ a^ single^ "rule^ of^ recognition"? Professor Hart^ speaks^ sometimes^ of^ a^ rule^ of^ recognition and^ some- times 2 of^ rules^ of^ recognition.^ The^ latter^ formulation^ is^ preferable. 2Even (^) this is questionable. (^) Arguably, some secondary (^) rules, e.g., rules (^) conferring jurisdiction, not^ only confer^ power^ but^ also^ impose^ duties.^ Professor^ Hart^ does^ not explain precisely how official duties arise. Nor does he account for the important fact that "misexercises"^ of^ private^ powers^ are^ seldom^ thought^ of^ as^ breaches^ of^ legal, duties, while "misexercises" of public powers^ often^ are^ thought^ of^ in^ this^ way.
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DUKE LAW JOURNAL In 1961, Professor Hart's picture of a legal system consists essen- tially of a union of primary and secondary rules. The "reductive" shift is substantial. Does the process of reduction involve any risks of distortion? First, there is some risk that -what is truly primary and what is truly secondary will be inverted. A court, for example, is a creature of law in that it can be dissolved into such rules as rules of jurisdiction and procedure. In this sense, the rules may be thought of as primary. But in another sense, what is primary here is the need for an institution to perform a certain function, e.g., the resolution of disputes, a need which courts are introduced to satisfy. Rules alone cannot do the job; and they are only means to the end-they merely specify who is to do the job and how it is to be done. Secondly, if legal institutions are thought of as aggrega- tions of rules, there is some danger that this may "obscure the dis- tinctive characteristics of law and of the activities possible within its framework." (41) Thus, for example, if courts and administra- tive agencies are compared as functioning institutions we will readily see that administrative agencies typically have much more "leeway" within the legal framework than do courts. This difference (^) is in many ways an important fact and is obscured by viewing courts and agencies not as functioning institutions but as aggregations of rules. Thirdly, to concentrate on the rules is to obscure the role of the personalities of the officials who administer the system. This may be unimportant in analytical jurisprudence. But Professor Hart is interested in how individual officials can affect the operation of the system. Possibly there is something in the spirit of legal realism. The role of individual officials qua individuals is surely significant in the area of what Professor Hart considers the open texture of rules. This domain is worth study if we are to understand life within a framework of law.^2 5 Fourth, emphasis on the concept of rule rather than on the concept of a functioning social institution may, in some cases, obscure the true character of "legal" action. Some actions of legal institutions are, in a sense, beyond the rules. Thus courts resolve uncertainties in the "rule of recognition." When 239, 252 (1955). It is to be noted, too, that Professor Hart himself sometimes uses the word "institution," however generally disdainful of it he may be. The word appears at least once even in THE CONCEPT OF LAW (at p. 94). See also THE CONCISE ENCYCLOPEDIA OF WESTERN PHILOSOPHY AND PHILOSOPHERS 200 (Urmson ed. 1960); Hart, Book Review, 70 L.Q. REv. 115, 118 (1954). 25For illuminating comments on what might be called the "rule" and the "non- rule" approaches to the description of life under rules, see B.NN & PETERS, SOCIAL PRINCIPLES AND THE DEMOCRATIC STATE 236 (1959).
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this involves a judgment that the court itself has power to decide, and when there is no higher court of appeal, we should here view the court's action as that of a social institution successfully bidding for power rather than as the action of a creature of law dissolvable into rules of jurisdiction. (144-50)
III EXISTENCE OF A LEGAL SYSTEM In The Concept of Law, Professor Hart does not attempt to answer the question-what is law? 26 -though efforts are made to answer this question in virtually all texts on jurisprudence. Rather, he analyzes the concept of a legal system in the manner just set forth. It is one thing to provide such an analysis and quite another to explain what is involved in an assertion that a legal system exists in a particular society. Professor Hart distinguishes between these two problems, and separately undertakes the task of specifying necessary and sufficient conditions for the existence of a legal system (108), a task that is not undertaken in texts on jurisprudence. If, in a particular society, there were no secondary rules but only primary rules of obligation, would a legal system exist? To this ques- tion, Professor Hart's answer is no. Such a body of rules would not constitute a system, but would be a mere "set" of rules. To consti- tute a system, there would at least have to be a secondary rule of recognition "uniting" the primary rules. A "set" of primary rules alone would "exist" if (and only if) the citizens viewed these rules from the internal point of view, i.e., only if such rules were con- sciously regarded as standards of behavior and deviations therefrom were subjected to criticism. If this internal point of view were not widely disseminated, there could not, according to Professor Hart, "logically" be any rules of obligation. (114) With the introduction of secondary rules, we may not only speak of a system of rules and of the relationship of citizens to secondary as well as to primary rules, but we may also speak of officials and of their relationship toward these two types of rules. It is in the "rela- tionships" of citizens and of officials to primary and secondary rules that Professor Hart finds his criteria for the existence of a legal system. 20 For the view that although Professor Hart expressly denies that he is "defining" law, he is, nevertheless, proposing a "definition" of law, see S. Brown, Book Review, 62 PHIL. ,EV. 250 (1963).
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borderline cases as governments (^) in exile and revolutionary juntas it may be difficult to identify the stage at which a legal system has ceased to exist or has come into being. How can Professor Hart's analysis of what it is for a legal system to exist be criticized? I have four comments. First, it seems doubt- ful that anything is gained by specifying what Professor Hart calls "necessary and (^) sufficient" conditions (^) for the existence (^) of a legal
system. Surely it is enough for the purposes of analysis and clarifi- cation simply to identify the common features of the ordinary cases in which (^) we say a legal system exists. Professor Hart acknowledges that unusual cases might arise, e.g., governments in exile and revolu- tionary juntas, in which we would still say (^) a legal system exists even though one or the other (or both?) of his "necessary and sufficient" conditions was not clearly met. Professor Hart's use of the language of necessary and sufficient conditions seems more likely to confuse than to clarify analysis of borderline cases 28 Secondly, has Professor Hart identified what is commonly present in the standard case of an existing legal system? Do officials of the system comply with the secondary rules because (1) they consciously accept such rules as common standards of official behavior and (2) they consciously desire to comply with these rules as such? Graham Hughes has pointed out, and surely it is true, that the desire for honor, respect, and financial, and perhaps personal, security may alone account for the compliance with secondary rules of many offi- cials of the system. 29 How did Professor Hart lapse into this error? Perhaps in his zeal to show the importance of the inner point of view, he has here overstressed it. Thirdly, Professor Hart does not clearly distinguish between the problem of determining the criteria for the existence of particular rules and the problem of determining the criteria for the existence of the legal system itself. Clearly, for a rule of the system to exist, the system must exist. He frequently says that (^) one of the conditions for the existence of the system is that the primary rules of obligation must be "generally" obeyed by the citizenry. Does this mean that each of the rules must be generally obeyed? If so, one "unobeyed" 28 In an earlier piece of work, Professor Hart stressed that "there are characteristics of legal concepts which make it often absurd to use in connection with them the lan- guage of necessary and sufficient conditions." See Hart, The Ascription of Responsi- bility and Rights, 49 P.A.S. 171, 173 (1949). 2" See Hughes, Book Review, 25 MOD. L. RFv. 319, 830 (1962). See also Morris, Book Review, 75 HAsv. L. REv. 1452, 1459 (1962).
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rule would undermine the very existence of the system. It seems clear that Professor Hart does^ not^ intend^ this.^ He^ seems^ to^ mean only that most of the rules^ must^ be^ obeyed^ by^ most of^ the^ citizens.^ What, then, is the criterion for^ the^ existence^ of a^ rule^ of^ the^ system?^ It seems only necessary that the rule satisfy the accepted rule of recog- nition. Professor Hart does not point^ out^ that^ to^ the^ legal^ realist this criterion would seem highly^ unreliable^ so^ far^ as^ "unobeyed" rules are concerned. And perhaps there is no point in saying that a rule exists if it is persistently^ disregarded. Fourth, there^ appears to^ be^ an^ inconsistency^ between^ Professor Hart's position that for a legal system^ to^ exist^ the^ officials^ thereof must take a "critical reflective attitude" toward the rules (an^ inner point of view), and the position he adopts at a later point in The Concept of Law that the "allegiance of those who accept the system" may be based on many different "non-moral" considerations: cal- culations of long-term interest; disinterested interest in others; an unreflecting inherited or traditional attitude;^ or^ the^ mere^ wish^ to^ do as others do. "There is indeed no reason why^ those^ who accept^ the authority of the system should not examine their conscience and decide that,^ morally,^ they^ ought^ not^ to^ accept^ it,^ yet^ for^ a^ variety^ of reasons continue to do so." (198-99) Here^ Professor^ Hart^ might only be speaking of the citizenry and not of the officialdom, but he does not make this clear. It might be, too, that the "critical reflec- tive attitude" of officials of the system should not be classified^ as^ a "moral" attitude, (^) but this (^) leads us to (^) the next topic.
IV
LAW AND MORALS This section is divided into three parts. The first part is a summary of Professor Hart's illuminating comparison of legal^ and moral rules. The second part consists of a discussion and^ evaluation of his views on "necessary interconnections" between law^ and^ morals. The third part represents an effort to explain and evaluate his reasons for insisting that law and morals should be sharply distinguished.8 0 A. Similarities and Differences Unlike many^ legal^ philosophers,^ Professor^ Hart^ does^ not^ compare and contrast "law" and "morals." Rather,^ he^ identifies^ similarities "°For further views of Professor Hart on law and morals, see his recent book, LAw, LIBERTY AND MORALrrY (1963).
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