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LAW EXTENSION COMMITTEE
UNIVERSITY OF SYDNEY
2004
JURISPRUDENCE OUTLINE
ALL STUDENTS PLEASE NOTE:
The outline below is intended to assist students in following the lectures in the course
and in understanding the recommended reading. The outline is not a substitute for the
lectures and reading. The outline is not intended to be comprehensive. Students who
have merely familiarised themselves with the outline but not attended the lectures and
read the prescribed text and readings will be inadequately prepared for the exam and at
substantial risk of failure.
Commencing with the November 2001 semester, examination questions will increasingly
ask students to apply the concepts and arguments taught in the course to an issue or
problem. Students will be best prepared to deal with the paper who have attended the
lectures or weekend schools and read widely.
LECTURE 5
HART & KELSEN: THE CONCEPT AND THE PURE THEORY OF LAW
Introduction
Herbert Hart was born in 1907 and died in 1992. He was called to the Bar in 1932. In 1952 he
assumed the Chair of Jurisprudence at Oxford University and in 1961 the Concept of Law
was published, a second edition was posthumously published in 1994.
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A key influence on Hart was the linguistic analysis movement in philosophy which had
prominent proponents at Oxford and Cambridge in the middle of 20th Century.
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At Oxford the linguistic analysis view was propounded by JL Austin (the philosopher not
the jurist).
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At Cambridge University the analysis of language had been made a central concern of
philosophy by the teachings of Wittgenstein (1889-1953). His influential work
‘Philosophical Investigations’ was published in 1958.
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April 2004
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Words expressed meaning according to Wittgenstein when they were used by competent
speakers in accordance with the rules held by the community as part of a shared form of
life. This common way of life structured by partly explicit conventions shared by speakers
gave rise to a multiplicity of what Wittgenstein called, “language games”.
Hart applied many of these concepts initially to deal with problems of definition in law. Hart
identified what he considered to be legal fallacies where people treated legal terms as names
of things. Hart argued that legal terms were merely ways in which one engaged in the legal
language game. For example, the term “goal” used in soccer does not name a thing but is part
of a convention which we apply under the rules about scoring. Likewise legal concepts
apparently naming things like companies’ trusts, rights, etc are merely reflections of social
rules.
The Internal Aspect of Rule Following
Hart criticised Bentham’s emphasis on the external aspect of rule following, namely that law
is a command backed by a sanction.
Hart argued that most people obey and follow legal rules, not through fear of sanction, but
because they adopt the rule as a guide for their own practice and behaviour. In so doing they
often reflect upon the content and purpose of the rule and have regard to these matters when
determining how and when to obey it. Hart described this attitude as the internal point of view
towards rule following.
Types of Rules
Hart also distinguished what he called power conferring rules from rules merely threatening
sanctions. Rules about contracts and wills are not about the delivery of a sanction but confer
power upon people to engage in conduct that they could not practice without those rules.
Hart divided the legal system into primary rules, which were concerned with proscribing
conduct – eg, the principal rules of the Crimes Act, and secondary rules, usually characterised
as rules about rules. Thus the rules of evidence and procedure are secondary rules.
The primary and secondary rules of a legal system were valid if they fell under a rule of
recognition. Hart's concept of the rule of recognition was very close to Kelsen’s concept of
the grundnorm.
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April 2004
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Hart acknowledged that rules would have a central core of meaning and a penumbra of
uncertainty where their meaning was not clear. Judges would need to make law where the
meaning of rules was not clear. This aspect of Hart’s work was particularly criticised by
Dworkin.
Hart believed that legal rules were clearly distinguishable from moral rules. Although they
may share the same logical and grammatical structure as moral rules the legal ought is not the
same as the moral ought. Hart criticised natural lawyers who sought to assimilate law and
morality.
Criticism
Hart’s view of law as simply a rule system was criticised by Dworkin. An analysis of the fine
texture of legal reasoning reveals much of it is not rule based, but as Dworkin suggests,
consists of appeal to principles or doctrines.
Hart treats any appeal by judges to moral principles as a conceptual confusion. It is unclear
why Hart’s attempt to define law narrowly should prohibit judges from appealing to moral
reasons.
Positivism is a normative theory, although Hart presented his theory as if it were merely a
form of conceptual analysis (he described his theory in the Concept of Law as descriptive
sociology) Hart nevertheless seemed to draw normative implications from his theory, namely
that there should be a proper separation between morals and law.
Hart was a liberal in the sense espoused by JS Mill and in his famous debate with Lord
Devlin, Hart argued against legal enforcement of sexual morality Hart may well have
intuitively thought that his liberal views flowed from his positivism even though there may
not have been a necessary logical connection.
Hans Kelsen (1881-1973)
Kelsen describes his theory of law as a pure theory of the science of norms.
Kelsen wanted to isolate what was unique to legal structures. It was a pure theory because it
would describe law without reducing it to psychology, sociology or the like. This
distinguished Kelsen’s views from the Scandinavian realists.
In describing it as a science of norms Kelsen wanted a description of the structure of law that
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was free of evaluative terms.
Kelsen characterised laws as rules or norms. Laws are always part of a system of norms
having relationships of validity which they derive from higher norms. A norm was a valid
norm if a higher norm authorised the making of the lower norm and it had been made in
accordance with the higher authorising law.
The Grundnorm
Kelsen recognised that the chains of validity do not regress indefinitely and one will
ultimately run out of higher authorising valid norms. What confers validity on the system as a
whole is not therefore another positive rule of law but what Kelsen called the grundnorm
sometimes translated as ‘basic norm’.
Kelsen described the grundnorm as the fundamental assumption made by people in society
about what would be treated as law. It is not the constitution which for Kelsen was another
positive norm.
It is apparent that what particular grundnorm applies in a society simply depends upon what
fundamental assumptions are made by the members of that society. The identity of the
grundnorm is ultimately a matter of sociological fact.
Some people have argued that it follows from Kelsen’s theory that if the assumption should
change as a result of a revolution or coup d’état, and people apply the new assumption, then
laws made with the new assumption will be valid. Kelsen’s theory appears consistent with
maxim “might is right”.
Whether or not this controversial assumption flows from Kelsen’s theory has been considered
in cases involving radical norm change. See
Madzimambuto v Lardner-Burke [1969] AC 645
The Republic of Fiji v Chandrika Prasad (Court of Appeal of Fiji Islands, 1 March
2001) and;
Lindell, Why is Australia’s Constitution Binding, Federal Law Review, volume 16,
1986, p.29.
On a decision in Australian law about what appears to constitute the grundnorm see
Trethowan v Attorney General for New South Wales [1932] AC 526.
Christopher Birch
April 2004