Phil 155 Central Features of Hart’s Positivist Concept of Law
Anderson
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
determined.
Hart’s argument for the necessity of thesesecondary 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 change.
(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 recognitionmust 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, far-sighted 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.