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Hart
Last modified: Thu Feb 23 16:37:37 2006
HLA Hart was a successful practicing barrister, who turned to
a career in academic philosophy after serving with the
security services during WWII. His
book [The Concept
of Law] is probably the most influential textbook on jurisprudence
ever published, and has been translated into 26 languages.
In this book, Hart set out to define what `law' is. His thesis was
a form of LegalPositivism, in that he saw
law as created by people for their own benefit, not something derived
from morality, nature, or reason. However, Hart rejected the
traditional view of Austin that laws were nothing more
than commands backed up by threats. Indeed, he argued that trying
to reduce the technical intricacies of, say, contract law to
commands backed by threats was simply an absurdity. In addition,
Austin's view failed to account for a number of observed features
of sophisticated legal systems. For example, Austin's command theory
cannot explain why legal systems have continuity across changes in
government. Moreover, the unrestricted power enjoyed by Austin's
sovereign does not exist in practice in any stable legal system.
Hart argued that attempts to define what `law' was inevitably
failed because people were attempting to define law in terms of
things that were no better understood than `law' itself. To
define one thing by means of its similarities to, and differences from,
other things is only helpful if we first understand those other things.
Hart argued that we should define law by means of sentences
in which the word was validly used, and not try to reduce it to synonyms.
Hart went on to claim that we can recognize a law by the status
it occupies in society. It is not sovereign command that makes people
obey the law, it is the expectation of society as a whole. He gives
as an analogy the game of chess. When two people play chess, they do not
require threats to ensure they play by the rules: the players simply
expect it of one another. Similarly, we expect that other people will
conform to the laws of our society. Laws are, therefore, normative
rules. A person is obeying a law when he uses the law to guide his
actions, and expects other people to do likewise.
For law to be a system of rules, there must be a straightforward
test to determine whether something is, or is not, a rule. Hart was
adamant that, in any given society, there could be found such
a test, which he called a `rule of recognition'. The rule of
recognition has features analagous to the Grundnorm
of Kelsen, but Kelsen saw the grundnorm
as validating, not classifying other rules.
Although Hart rejects the NaturalLaw notion that
law must be based on morality, he concedes that any legal system
will contain an irreducible minimum of rules that appear to be
derived from natural law. This, he argues, is inevitable, given
that legal systems exist to safeguard the survival of societies
of human beings. It is a matter of plain observation, for example,
that people are vulnerable to bodily attack and have limited altruism.
As a result, a successful legal system must protect peoples' bodily
integrity and allow for the sharing of resources. This is not
because law is based on morality, but because it has to serve human
beings with particular characteristics.
Hart's theory has been extensively and minutely criticised by
Dworkin, one the basis - among other things - that
law is not rule-based, it is principle-based; Dworkin attacks
the coherence of the rule of recognition, which is
in many ways a foundational principle of Hart's thesis.
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