LAW EXTENSION COMMITTEE
UNIVERSITY OF SYDNEY
JURISPRUDENCE LECTURE 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.
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.
Dr C Birch (LEC Winter 2006 Session)
1
LECTURE 6
HART’S CONCEPT 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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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.
Dr C Birch (LEC Winter 2006 Session)
2
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.
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.
Dr C Birch (LEC Winter 2006 Session)
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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.
Dr C Birch (LEC Winter 2006 Session)
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