Download Phil 155 Central Features of Hart`s Positivist Concept of Law

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Phil 155
Central Features of Hart’s Positivist Concept of Law
A fully developed legal system must have two types of rules:
(a) Primary rules which impose duties and confer powers on private citizens, such as the
criminal law, contract law, torts and property law.
(b) Secondary rules of recognition, change and adjudication. These rules specify the way
the primary rules may be ascertained, introduced, modified, and the fact of their violation
Hart’s argument for the necessity of these secondary rules is as follows:
(a) A society with primary rules only would suffer constant uncertainty as to just what
the rules are. The remedy is a set of rules of recognition. In the U.S. one of those rules
of recognition is whatever rule Congress enacts that is signed by the President and is
consistent with the U.S. Constitution is valid law. Without rules of recognition, the
public would be uncertain about the legal obligations they are under and their legal
powers to act and lawyers would not be able to inform their clients of what laws are
pertinent to the case at hand.
(b) A system of primary rules only would be static; it would lack any systematic
provision for making deliberate changes in the rules. This is remedied by rules of
(c) Finally, a system of primary rules only would be inefficient; it would lack an
established procedure for deciding when violations of law or conflicts of law occur. This
is remedied by rules of adjudication.
In Hart’s words, “law is the union of primary and secondary rules”. More exactly, the
necessary and sufficient conditions for the existence of a legal system are:
(a) that the primary rules of law which are valid according to the rules of recognition
must be generally obeyed by the citizenry.
(b) the secondary rules of recognition, change and adjudication must be accepted and
acted upon as obligatory standards of behavior by the system’s officials.
(c) Note that, as a matter of logic, the rule of recognition cannot itself be a rule of law
because it spells out the very conditions that a rule must meet in order to be a law.
So in order to tell whether a social rule is a valid rule of law one must trace its pedigree:
the rule must have been declared valid by some qualified public officials in conformity
with the rule of recognition. Note that a valid law does not have to meet any particular
moral standard or test in order to qualify as a law. This is a central thesis of any positivist
theory of law.
Note also that in order for a legal system to work, the officials of the system must, by and
large, regard the rules of law from the internal standpoint, that is, as obligatory rules that
must be followed for their own sake. Infractions of the law by the general public can be
minimized by imposing penalties or witholding benefits, but departures from the rules by
the officials themselves cannot be controlled by imposing penalties, since that would call
for a still higher layer of officials to impose the penalties and so on, ad infinitum. Unlike
officials, however, the general public may observe the law from any of various motives
such as fear of sanctions, inertia, respect for tradition, concern for their reputation, farsighted calculation of self-interest, or the belief that they are morally obligated to obey.
Hart’s rule of recognition has generated a great deal of controversy among philosophers
of law. On his account, the rule of recognition is a social rule whose authority depends
on its being accepted from the internal point of view by legal officials, including most
notably, judges. But even if this is true, it fails to explain the authority of the rule. No
authoritative rule can be grounded in the mere fact that some people regard it as
authoritative. We still need a resolution of this key part of his theory.
Not surprisingly, natural law philosophers reject any positivist account of a legal system
because it imposes no moral requirement on what is to count as valid law. That debate
continues down to the present day, but there is one aspect of Hart’s theory that tilts the
advantage in his direction. Natural law theory has no account of the authority of law as
such. On their view, any obligation we have to obey the law depends solely upon
whatever moral merit the rule may have. That seems to ignore what common observation
tells us: that laws that are morally indefensible can still be valid laws. Hart attempts at
least to explain how laws can be valid and authoritative independently of any moral test.
Hart agrees with Lon Fuller that legislators and judges are constrained by principles like
Fuller’s eight canons (the “inner morality of law”), but denies they are principles of
morality. For Hart, they are only principles of good legal craftsmanship. For Fuller, they
have moral significance. Note: In a postscript to the revised edition of Hart’s major
work, The Concept of Law, Hart finally conceded that Fuller’s eight canons of law do
introduce an element of fairness into a legal system, but they alone do not rule out other
types of substantively immoral laws from a legal system.