Concept of Law

INTRODUCTION
Herbert Lionel Adolphus Hart (1907-92) was a British philosopher who was professor of jurisprudence (1952 to 1969) at the University of Oxford.

In The Concept of Law[1] Prof. HLA Hart tries to analyze the relation between law, coercion and morality. He analyses the concept of law and in process discusses such important topics as the foundations of the legal system, law as the union of primary and secondary rules, the sovereign and the subject, the distinction between the notions of law, justice, and morality, the rule of recognition, and international law.

This work by Prof HLA Hart also is a good attempt to reinterpret and rectify the theoretical work of other jurists like Kelson’s basic norm theory, Austin’s imperative theory, and Fuller’s natural law theory.

In this dissertation the researcher will attempt to give an overview on the work of Prof. HLA Hart in his book The Concept of Law.

The methodology will be to come up with summary of each chapter and topic covered in the book with the help of different interpretations and assimilations available in books and text available on the internet.

Concept of Law

Persistent Questions

Perplexities of Legal theory

The question ‘What is Law?’ has been attempted to be addressed by many thinkers but still lots of perplexities subsist as to the definition of law. Many definitions had been given by different thinkers but none of them has come up to stand as undisputed and widely accepted, reason being various flaws in the definition itself.

Still to this highly hyped issue if we think as a common reasonable man, one can identify the similarities between various legal systems and come up with a common definition which describes the functions of law. A legal system comprises of

  i. rules forbidding or enjoining certain types of behavior under penalty;

ii.    rules requiring people to compensate those whom they injure in certain ways;

iii. rules specifying what must be done to make wills, contracts or other arrangements which confer rights and create obligations;

  iv.   courts to determine what the rules are and when they have been broken, and to fix the punishment or compensation to be paid;

v.     a legislature to make new rules and abolish old ones.

The reason for all the perplexities regarding the definition of law is that apart from the clear standard cases, there also lie the doubtful cases which are hard to be covered under the general definition as till now given by various thinkers. There is always some exception left out which lacks in one or other characteristic of the legal system as given in the definition.

So to find further the base of the problem, let us ponder into some issues which need to be addressed before we try to answer the question ‘What is Law?’.

THREE RECURRENT ISSUES

First issue is that the existence of law means that certain kinds of human conduct are no longer optional, but obligatory, in sense that non-compliance is threatened by some unpleasant consequences. Austin did emphasize on this when he tried to define law.

Second issue is, the existence of law means that certain kinds of human conduct are no longer optional, but obligatory, in sense of moral obligations.

Third issue is whether law consists of rules. For the mere perplexities to the question ‘What is a rule?’ this issue still remains unaddressed. There exist various kinds of rules which originate from myriad sources. Does the law consist of all these kinds of rules? When can be said that a rule exists? What kind of rules do become part of the law?

DEFINITION

The stark existence of these three issues being gone unaddressed properly is the main reason why there is no concrete definition of law yet established in the legal theories. The phenomenon which pertained in the hindrance of the making up of a definition is just like when a man says, ‘I can recognize an elephant when I see one but I cannot define it.’ The definitions yet given also stand a sterile as there are no clear perception of the family or genus to which the subject ‘Law’ belongs, which is essential to define a particular article. The most close genus if any, which can be speculated as the one to which law seems to be a member is rules of behavior. But since the concept or rules itself is not clear, this genus also is full of perplexities. So ‘What is law?’ still remains unanswered.

Laws, Commands, and Orders

VARIETIES OF IMPERATIVES

When any wish is expressed by a person to another, not merely as a piece of interesting information or deliberate self-revelation but with the intention that the person addressed should conform to the wish expressed, it is customary in English and many other languages, though not necessary, to use a special linguistic form called the imperative mood[2]. For e.g. ‘Go home!’ ‘Come here!’ ‘Stop!’ ‘Do not kill him!’.

Similarly there are linguistic forms like request (‘Pass the salt, please’), plea (‘Do not kill me’), and warning (‘Don’t move’), etc.

So when a gunman says that ‘Hand over the money or I will shoot’ is giving a coercive order to the clerk. It should not be confused with command, which is in relation to exploitation of a continuous authority for a relatively longer period. Thus it will be incorrect to say that law is a writ large situation of gunman pointing a clerk to hand over the money.

LAW AS COERCIVE ORDERS

Law cannot merely be said to function by coercive orders. Because its not possible to have each individual of society to be informed about what he is required to do. Law is more general in form rather than specific as in sense that it indicates a general type of conduct and second that it applies to a general class of people who are expected to see that it applies to them and to comply with it[3]. The gunman situation only comes when there is any non compliance with any such system.

Secondly law need not to be addressed to the person concerned, as said by Austin. Law becomes the law of the land the very moment it is enacted. Whether it gets addressed to the persons concerned or whether it disseminates properly to all the class of people to whom it applies is not of concern. So saying that the command needs to be addressed will be wrong to include in the definition of law.

Thirdly, the authority which the gunman enjoys over the clerk when he says ‘hand over the money’ is very short-lived and only coercive one, unlike the authorities which make the statues and enact them, which enjoy authority to issue standing orders to follow time after time by classes of persons.

At last, the body which makes laws should be internally supreme (ultimate authority) and externally independent (not obeying any other authority), to qualify as sovereign.

The Variety of Laws

It is quite established that all laws do not comply to the model of coercive orders, there are also laws which confer some rights or powers to individuals. Similarly there are other many objections that come to mind when we see law just as coercive orders. These objections fall into mainly three categories, namely content of laws, their mode of origin and their range of application.

THE CONTENT OF LAWS

There are various kinds of laws. There are ones which if not obeyed will impose a sanction, the ones which give to rights, the ones which show you the way to do things if you want your wish to be effective, etc.

THE RANGE OF APPLICATION

Mostly, when the law is made by the competent authority, the law makers themselves also get bound by the law, though in private capacity, in the same way as others for whom the law is made. The ‘top-to-bottom’ image of law making can be explained better by pondering into concepts of how promises work, rather than the model of coercive orders.

When a promise is made, it has to be made by appropriate person on appropriate occasion; those who make the promise bound themselves to the things designated by them. This way they impose obligations on themselves and rights for others. This way the promisor exercises the power conferred by rules of making promises.

Similarly when the legislation makes a law, it follows certain set rules to make law. By making law they create obligations for others including themselves in personal capacity.

MODES OF ORIGIN

In most legal systems custom is a source of law subordinate to statute. This means that the legislature could take away their legal status, but failure to do so may not be a sign of the legislator’s wishes.

The theory of law as coercive orders meets at the outset with the objection that there are varieties of law found in all systems which, in three principal respects, do not fit this description. First, even a penal statute, which comes nearest t it, has often a range of application different from that of orders given to others; for such a law may impose duties on those who make it as well as on others. Secondly, other statues are unlike orders in that they do not require persons to do things, but may confer powers on them; they do not impose duties but offer facilities for the free creation of legal rights and duties within the coercive framework of the law. Thirdly, though the enactment of a statue is in some ways analogous to the giving of an order, some rules of law originate in custom and do not owe their legal status to any such conscious law-creating act.

Sovereign and Subject

The existence of sovereign and the subject is considered to be an essential part of any society which possesses law. The two important points which should be considered in any such society are, first, there should be habit of obedience in those to whom the laws made by the sovereign applies. Second the sovereign is considered to be above the law.

THE HABIT OF OBEDIENCE AND THE CONTINUITY OF LAW

Is mere habit of obedience sufficient for continuity of the authority of the sovereign and persistence of laws?

Where comes the question of obedience if the law prohibit any conduct which people do on their own normally without knowing the law which prohibits it? How can we say that it is habit of obedience if we are not sure whether the person, who is supposed to habitually obey, would have done the same act without any existence of any order?

Thus, both the habituality and the obedience are both concepts full of perplexities when incorporated in the model of legal system.

When we talk about the continuity of law, the fact that the subject being obedient to one representative of sovereign does not confer on the new representative any right to succeed the old and give orders in his place. Also, habitual obedience to the old lawgiver cannot by itself render probable that the new legislator’s orders will be obeyed. If by any virtue there is any right to succeed to such legislator by another legislator there should be acceptance of any such complex rule in the society. Here again by rule we mean the rules which differ from mere convergent behavior in the society, like that of going to cinema every weekend.

There are a few differences between the rules and habits. First, for a group to have a habit it is fact that their behavior converges. Deviation from such habit should not be a matter of criticism. On the other hand when we talk about rules, deviation from the standard behavior are regarded as lapses or faults open to criticism, or even with threats of sanction. It should also be noted that mere existence of minority in any such group, which not only breaks such rules but also refuse to look upon it as a standard, does not mean that the rule does not exists.

THE PERSISTENCE OF LAW

Notion of habitual obedience does not account for the persistence of valid laws from one sovereign to another. Secondly, statues are not valid until used by courts under the current sovereign. Such a claim about statutes goes beyond the one about custom by requiring courts to apply them during the reign of the present sovereign. This problem of persistence need not arise if one uses the notion of a rule validating statues under certain conditions[4].

LEGAL LIMITATIONS ON LEGISLATIVE POWER

Sovereign does not enjoy unfettered powers whatsoever. Every sovereign is either bound by the law which he himself makes, or is bound by moral obligations that he gets imposed due the virtue of him being the sovereign.

THE SOVEREIGN BEHIND THE LEGISLATURE

In a composite state the true sovereign is neither the general government, nor the several state governments, both of which are subject to legally binding restraints. Rather, Sovereignty lies in the several united governments as forming one aggregate body, or they and the general government as forming a similar body.[5]

Law as The Union of Primary and Secondary Rules

A system of primary rules, such as a system of positive morality, suffers three sorts of problems.

a)    Uncertainty about which primary rules are part of the system

b)   Disputes about the interpretation of the primary rules

c)   The primary rules are comparatively static

These problems can only be solved by introducing secondary rules (or metarules) into the system, that is, rules about the rules. He recognizes three kinds of secondary rules.

a)    A rule of recognition resolves uncertainty about which rules are primary rules by specifying criteria for membership among the primary rules.

b)   Rules of adjudication address concerns about the interpretation and application of the primary rules by establishing tribunals to adjudicate disputes about the primary rules.

c)   Rules of change ensure that the system of primary rules is dynamic by specifying procedures for modifying the primary rules in light of changing circumstances, beliefs, and values.

The addition of secondary rules to a system of primary rules marks the step from the prelegal world into the legal world.

Primary rules are valid law if they have the right pedigree, that is, they satisfy the criteria in the rule of recognition; secondary rules are valid law by regulating the conduct of officials in the system in the right way. Most officials must adopt an internal, and not merely external, attitude to the secondary rules of the system.

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[1] H.L.A. Hart, The Concept of Law, ( Oxford University Press) (1961)

[2] H.L.A. Hart, Concept of Law 18 (2^nd ed. 2005)

[3] H.L.A. Hart, Concept of Law 21 (2^nd ed. 2005)

[4] Michael D. Bayles, HART’S LEGAL PHILOSOPHY 37 (1992)

[5] Wilfrid E. Rumble, Doing Austin Justice 235 (2005)