To our modern philosophy regarding law, a British legal philosopher by the name of Herbert Lionel Adolphus or H. L. A. Hart (1907-92) has shaped our view of laws, their purpose as social rules and their relation to language and brought new ideas of interpretation and how social and legal systems may work towards legal positivism. Often, Hart is cited for “charting the precincts of modern legal theory by applying the techniques of analytical and especially linguistic, philosophy to the study of law.”
Hart was educated at New College, Oxford and practised law at the Chancery bar from 1932-40. In World War II, he worked in MI5 at Bletchley Park where he was a colleague of the mathematician and code breaker, Alan Turing.
After the war, Hart would not return to practice legal studies but instead accepted a fellowship at New College, Oxford where he would teach Philosophy. There, he would begin writing his most famous work, The Concept of Law in 1952, the same year he was elected Professor of Jurisprudence at Oxford. The Concept of Law was published in 1961 and consisted of both lectures and writings by the philosopher. Hart’s arguments developed numerous ideas and re-examined legal positivism. Positivism is a legal system separate from but related to natural law, governed by changing social rules made by people and their societies rather than a higher power or nature, although there are some shared ideas between the two bodies of moral principles. Hart argues that a community is governed by two types of laws, Primary and Secondary rules which directly govern a community and affect other how laws are altered, removed or recognized, respectively. He also described law as an “open-textured” language, pushing the idea that like other languages, laws have terms or statements with unclear or multiple meanings and that it is important to attempt to interpret laws from an analytical perspective to understand the law.
Hart and Positivism
In the context of law, ‘positivism’ is a legal theory that supports laws being created by man and not a god or some higher/natural power that natural law supports. Positive law denies the relation between morality and law. This legal practice describes a system in which authoritative figure (such as leaders, judges or police) create or apply laws and commands which are integrated into a system, (unless that law or command is impossible or illegal within that system) and citizens obey those laws or commands. The two major ‘protagonists’ of this legal theory are Jeremy Bentham and John Austin. Positivism does not support the idea of a subjective concept such as morality is a law, of which’s “validity can be traced to an objectively verifiable source.”
Although Hart adopted positivism, he critiqued the ideas of Bentham and Austin on positive laws. Austin believed laws should coerce and should be rules enforced by figures of authority. “Hart disagreed with the Bentham/Austin doctrine that legal rules necessary had sanctions to make them effective. Hart emphasized that legal obligation was not so much a matter of coercion as of social consensus.” Hart argued that laws are subject to change, and should suit the needs of the community they are incorporated in. In this respect, Hart saw the law as a structure, but a changeable structure, that is based on the condition of the community it describes.
The legal philosophy of H.L.A. Hart may best be described by reviewing his most famous work, “The Concept of Law”, of 1961, and most particularly, his Primary and Secondary Rules, as well as looking at his view of “The Open Texture of Law”. Hart saw law as being a union of Primary Rules which are the governing limits to be obeyed, and a system of Secondary Rules, which allow those rules to be interpreted and changed. He also was a strong believer in the power and limits of words and saw laws as being only as useful as the particular application in a particular situation.
Primary and Secondary Rules
Hart explains that there are primary and secondary laws, primary laws outline rules that govern a community where secondary laws inform how primary laws are removed, changed or recognized.
Primary rules are rules which impose duties on a citizen to act in a particular way, or they would be subject to a punishment. Hart calls these rules “basic” rules, telling a citizen what he can or cannot do. A primary rule governs conduct, such as a speed limit, trespassing or criminal law. Primary rules are what most people refer to when they say, “the law.”
Secondary rules govern the procedural methods by which primary rules are enforced, prosecuted and so on. Hart specifically enumerates three secondary rules; they are:
1. The Rule of Recognition, the rule by which any member of society may check to discover their society’s primary rules. Hart states that, In a simple society, this rule may only be what is written or what is said by a leader/society’s government. Hart expressed a great deal of importance to the Rule of Recognition. He stressed that authorities and/or legal officials are owed with identifying which moral codes are to be the content of laws. These officials are also “authorized and obligated” (Britannica) to follow the rules in determining what becomes a law.
2. The Rule of Change, the rule by which existing primary rules might be created, altered or deleted.
3. The Rule of Adjudication, the rule by which the society might determine when a rule has been violated and prescribe a remedy.
Hart makes a difference between Internal and External Rules. External Rules would be Primary rules, by which a society explicitly governs itself. Internal Rules would be the Secondary rules by which the laws are modified or adjudicated.
Hart explained the difference between the two types of rules as follows:
“[U]nder […] the basic or primary type, human beings are required to do or abstain from certain actions. […] Rules […] secondary to the first […] provide that 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.”
Open Textured terms is an important principle to Harts philosophical approach to law. Open texture is a term in the philosophy of Friedrich Waismann, first introduced in his paper Verifiability to refer to the universal possibility of vagueness in empirical statements.
“H.L.A. Hart argued on judicial interpretation…. that legal rules have an applicable meaning in accordance with the depending situation, but the problem lies within the language vagueness in interpreted application.” (Bix)
In this manner, a certain term may not mean the same thing in a different application or be applicable to a given situation.
Hart encourages those looking to understand the law that they must first attempt to understand that law through analytical interpretation. A particular law may be best understood when it’s multiple subjective meanings have been explored and considered.
The Principle of Fair Play
The ‘principle of fair play’ describes a notion that anyone who may benefit from a particular institution, is obliged to share a proportionate amount to sustain that institution.
This would reflect a person’s ability to pay taxes, for example for road work, or public health.
Later Work – Law, Liberty and Morality
“Hart’s most-sustained entry into political disputation occurred in 1963, with the publication of Law, Liberty, and Morality. He wrote in the liberal tradition of English philosopher and economist John Stuart Mill in arguing that homosexual intercourse between consenting adults should not be legally proscribed. Invoking and defending Mill’s ‘harm principle,’ which maintains that no activity can legitimately be outlawed unless the activity causes nontrivial harm to somebody other than the participants, Hart submitted that consensual intercourse between adult homosexuals does not cause any detriment that would suffice to satisfy the harm principle. In particular, the mere fact that certain sexual practices cause offense to some people who are aware of their occurrence does not constitute harm of any kind that would render legitimate the prohibition of those practices.”
It has been noted that Hart’s long-standing friendship with Alan Turing may have influenced his position, however the basis for this position is a logical one.
Canadian Prime Minister Pierre Elliott Trudeau made a similar famous comment in a 1967 editorial in the Globe and Mail. Globe and Mail on December 12, 1967 (page 61) which read in part: “Obviously, the state’s responsibility should be to legislate rules for a well-ordered society. It has no right or duty to creep into the bedrooms of the nation.”
Civil Disobedience is the deliberate “refusal to comply with certain laws considered unjust, [or to pay taxes and fines,] as a peaceful form of political protest” . This act would be in direct confrontation of Hart’s Primary rule, to respect and recognize a law, and as a Positivist, could argue that these protesters would be deserving of a punishment. However, Hart’s view of law is that it is always contingent on a social condition and should provide a means for laws to change and adapt to those who are more attuned to an evolving moral condition. His Secondary Rules, provide a means for Law to be revised to adapt to changing circumstances. In this respect, Hart would support Civil Disobedience as a means of peaceful protest towards change.
The Concept of Law. H.L.A. Hart p. 185.
LAWS AND MORALS
I. Natural Law and Legal Positivism
“There are many different types of relation between law and morals and there is nothing which can be profitably singled out for study as the relation between them. Instead it is important to distinguish some of the many different things which may be meant by the assertion or denial that law and morals are related. Sometimes what is asserted is a kind of connection which few if any have ever denied; but its indisputable existence may be wrongly accepted as a sign of some more doubtful connection, or even mistaken for it. Thus, it cannot seriously be disputed that the development of law, at times and places, has in fact been profoundly influenced by the conventional morality and ideals of particular social groups, and also by forms of enlightened moral criticism urged by individuals, whose moral horizon has transcended the morality currently accepted. But it is possible to take this truth illicitly, as a warrant for a different proposition: namely that a legal system must exhibit some specific conformity with morality or justice, or must rest on a widely diffused conviction that there is a moral obligation to obey it. Again, though this proposition may, in some sense, be true, it does not follow from it that the criteria of legal validity of particular laws used in a legal system must include, tacitly if not explicitly, a reference to morality or justice.”
In this introduction to the chapter on Law and Morals, Hart describes his position on Natural Law and Legal Positivism. He states that laws may be based on a Moral or Natural condition, however it is not necessary that they must be based on this pre-condition. He goes on to say that there is an “illicit” possibility that there be a “moral obligation” to obey a law. This would impose a natural or a moral code of conduct on a position where none may be necessary. It does not mean that a law cannot develop from a moral position, as many do, but that it needn’t be required, or a condition.
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