DR.

RAM MANOHAR LOHIYA NATIONAL LAW

UNIVERSITY

JURISPRUDENCE
SEMESTER - V

HLA HART’s CONCEPT OF LAW

SUBMITTED TO: Dr. Shakuntala
(ASSISTANT PROFESSOR OF LAW)

SUBMITTED By: Disha Bhalla

Enr. No.: 220101065

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SYNOPSIS: CONCEPT OF LAW BY H.L.A HART

This paper delves into the intricate understanding of the concept of law, with a
special focus on H.L.A Hart's legal theory. Jurisprudence, a discipline that
investigates the essential principles of law, has been defined differently by
many jurists over time. Notable figures such as John Austin and William
Blackstone offered influential but debated definitions of law, viewing it
primarily through the lens of command and sovereign authority. However,
Hart's work stands out for challenging these traditional views and presenting a
more nuanced approach to understanding law's nature and purpose.

Hart's theory, outlined in his seminal work *The Concept of Law*, emphasizes
the relationship between law, coercion, and morality. He criticizes Austin's
notion that law is merely a command backed by threats and offers a more
balanced view, proposing that legal systems function based on a combination
of **primary** and **secondary rules**. Primary rules govern behavior, while
secondary rules provide mechanisms for the recognition, change, and
adjudication of these laws. Hart argues that law is not only coercive but also
provides powers and privileges, making it an internal aspect of societal norms
and expectations.

A crucial contribution of Hart's theory is his concept of the **"rule of

recognition,"** which forms the foundation of any legal system. This rule allows
individuals and officials to identify valid laws through established criteria such
as legislation, judicial decisions, and customary practices. Hart also addresses
the **open texture of law**, acknowledging that legal rules cannot cover all
possible situations, thereby granting judges discretion in applying laws to
unforeseen cases.

Hart's work represents a "middle path" between strict positivism and natural
law theory, accommodating the changing needs of society while maintaining
the integrity of the legal system. Although his theory has been criticized by
philosophers like Dworkin and Fuller, who argue for the role of principles in
law, Hart's analysis remains one of the most influential in modern
jurisprudence.

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In conclusion, this paper highlights how Hart‟s theory provides a
comprehensive framework for understanding law‟s function in society,
resolving issues of legal certainty, flexibility, and judicial interpretation. While
Hart's work may not be flawless, it offers a robust foundation for exploring the
dynamic nature of law and its ongoing evolution.

INTRODUCTION

Jurisprudence is a name given to a certain type of investigation into law, an

investigation of an abstract, general and theoretical nature which seeks to lay
bare the essential principles of law and legal system.1 The word Jurisprudence
originally a Latin word Jurisprudentia meaning “knowledge of Law”. Thus,
jurisprudence signifies knowledge of law and its application2. Different jurists
have defined Jurisprudence in their own way there is no fixed definition of
Jurisprudence. Some of the definitions by some famous jurists are as follow:

According to Salmond jurisprudence is the ‘Science of the first principles of

the civil law’.
According to Austin jurisprudence is the ‘Philosophy of positive law’ etc.

Certain questions important for the society for a better understanding of that
term has been defined by various thinkers in their own way, but are still not
clear as to what could be the exact definition of it. Questions like „What is
Law?‟, „What is Medicine?‟ „What is Chemistry?‟ No book or research or
literature has been done in this field for defining these abstract terms. This
lack of research on such serious topic leads to misinterpretation and one such
term vulnerable to misinterpretation is „Law‟ which is a subject totally based on
interpretation.

1
http://www.legalservicesindia.com/article/529/H.L.A-Hart.html
2
Avtar Singh & Harpreet Kaur, Introduction to Jurisprudence, (Nagpur: Lexis Nexis Butterworths Wadhwa), 3rd
Edition, p1

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However there are still some attempts made by some thinkers, philosophers on
topics like law. Some famous definition of law by some famous jurists is
mentioned below:

I. John Austin’s law definition states „Law is a command from the

sovereign person or body in the political society to a member or members
of society.‟
II. Blacksone’s def states „a rule of civil conduct prescribed by the supreme
power in a state, commanding what is right, and prohibiting what is
wrong.‟
III. Friedman’s def. of law states „not a brooding omnipresence in the sky,"
but a flexible instrument of social order, dependent on the political
values of the society which it purports to regulate.‟

However these definitions are not flawless and are criticized by various schools
and jurists. The question which arises now is there any fix definition which
exists for law or is it an abstract term which should be interpreted every now
and then with the changing need of the society.

One of the famous English Philosopher who has given his understanding on
Law which has been acclaimed by many others is H.L.A Hart whose most
renowned work is The Concept of Law. Hart whose theory of legal system based
on the combination of primary and secondary rule is regarded as the "high
point of legal positivism.3

Through this paper we will try to analyze his concept & understanding on law,
and criticism by various philosophers.

CONCEPT OF LAW: HLA HART

3
Wayne Morrison, Jurisprudence: From the Greeks to Post-Modernism Lawman (India) Private Ltd., New Delhi,
1997, 351

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HLA Hart was one of the famous British Philosophers and Professor of
Jurisprudence at the Oxford University His famous work included Law Liberty
and Loyalty, the Concept of Law, Causation in the Law, Essays on Bentham.

The Concept of Law is basically an approach to finding out whether there exists
any relation between Law, Coercion and Morality. Is it necessary for every law
to be coercive in nature for it to be obeyed? Hart sees the classification of all
laws as coercive is an oversimplification of the existing relation between the law
and coercion. Characterizing every law as coercive would be an attempt to fail
the purpose of some law and a generalization of law. Hart was of the view that
law is something what people or individual of the society want it to be. And this
is for him internal aspect of the law.

Austin‟s work The Province of jurisprudence Determined has been criticized by

Hart for the concept it gives on Law. For Hart Legal and Coercive obligation
both are two distinguish thing, where Coercive Obligation is associated with
Austin‟s theory where „law is a command backed by threat‟. Hart doesn‟t agree
with this and in his Concept of Law he proposes a middle path by virtue of
internal viewpoint these rules have more acceptance than a coerced obedience
and a predictable behavior. Hart proposes a model where he replaces coercion
for obedience with voluntary acceptance of law. According to Hart obedience to
a particular authority for following the law fails as soon as the authority dies
and hence there is no succession on the rule maker. According to Hart there is
no guarantee of it being obeyed habitually. He believes that laws differ from
merely being a command of sovereign since they may apply to the sovereign
itself and not only on the individuals alone. Hart in his book mentions it very
clearly that the laws are not merely coercive in nature which demands
obligation but also it provides certain privileges, liberty, powers to the
individual.

However this is not to say that Hart totally outsets the idea of a coercive law
rather he divides law into two basic part i.e.

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 I. Primary Law
II. Secondary Law

For Hart laws that are coercive or which asks for obligation, imposing duties
are to be put under Primary laws such as rules prohibiting murder, robbery,
theft etc. whereas all laws cannot be a primary law some laws must be there for
effective functioning of the primary laws these are secondary laws which
provide powers to the legislator for making changes in those primary laws if
there exists any discrepancy or flaw in the primary law such as of forming a
contract will fall into secondary rule. It also becomes important for resolving
the dispute arising out of the primary laws for interpretation of the primary
laws.

So basically according to Hart Secondary Law may include the following

I. rules of recognition
II. rules of change
III. rules of adjudication

Here it becomes imperative to mention the statement of Hart for the existence
of modern legal system. Hart says:

„There are therefore two minimum conditions necessary and

sufficient for the existence of a legal system. On the one hand,
those rules of behavior which are valid according to the system's
ultimate criteria of validity must be generally obeyed, and on the
other hand, its rules of recognition specifying the criteria of legal
validity and its rules of change and adjudication must be
effectively accepted as common public standards of official
behavior by its officials. The first condition is the only one which
private citizens need satisfy: they may obey 'each for his part
only' and from any motive whatever . . . the second condition
must also be satisfied by the officials of the system. They must

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 regard these as common standards of official behavior and
appraise critically their own and each other's deviations as
lapses ... The assertion that a legal system exists is therefore a
Janus-faced statement looking both towards obedience by
ordinary citizens and to the acceptance by officials of secondary
rules as critical common standards of official behavior.'
It has been observed that rules are very different from an order. Rule are one
which makes a standard behavior which an individual follows from internal
point of view hence removing a need of command from the sovereign always to
make an individual work as expected.

As per Hart the primitive stage people only had primary rules to govern
themselves as acceding to the society. They became binding since member of
the group accepted it as a rule for the standard of behavior. Such societies
according to Hart expects a certain level of behavior from the majority of the
members of the group or the members rejecting the norms will have no social
pressure to fear from such deviation. Basically the rules were based on
majority acceptance and fear of deviation from such accepted standards which
can be termed as coercion.

Hart in his book pointed out three serious defects with such kind of societies
as follows:

1. no specific procedure for finding out the rules, no precise scope of the
rules there lies uncertainty,
2. inflexibility in such rules as per changing circumstances since primitive
society lack the means making it static,
3. nothing other than social pressure by which such rules are maintained

Hart here mentions the benefit of having secondary rules.

1. The secondary rule will remove the uncertainty in the rules by rule of
recognition.

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 2. The static nature of primary rule can be cured by introducing a body
which removes the old laws and introduce new laws as per the
circumstances hence by rules of change,
3. Adjudication as per the secondary rule thus becomes important to
adjudicate and rectify third defect by rules of adjudication.

Therefore to Hart it seems critically important to have 2 minimum conditions to

have a modern legal system and i.e. the primary rules to be obeyed by the
individuals whereas secondary rules are for the officials which strike a balance
between the two.

But is there a Union of Primary and Secondary law?

Hart through the following passage makes it clear that Hart does not intend to
have a union of Primary and Secondary law:

The union of primary and secondary rules is at the centre of a legal

system; but it is not the whole, and as we move away from the
centre we shall have to accommodate . . . elements of a different
character.4 These truths [about certain important aspects of law]
can, however, only be clearly presented, and their importance
rightly assessed, in terms of the more complex social situation
where a secondary rule of recognition is accepted and used for the
identification of primary rules of obligation. It is this situation
which deserves, if anything does, to be called the foundations of a
legal system.5" The main theme of this book is that so many of the
distinctive operations of the law, and so many of the ideas which
constitute the framework of legal thought, require for their
elucidation reference to one or both of these two types of rule, that
their union may be justly regarded as the 'essence' of law, though

4
H.L.A. HART, THE CONCEPT OF LAW 96 (1961).
5
Ibid at 96

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 they may not always be found together wherever the word 'law' is
correctly used." 6

INTERNAL AND EXTERNAL ASPECT OF RULE:

Where External Rule is a uniform behavior of an individual which can be

observed and recorded, it is present in social habits as well.

„Internal aspect of the rule distinguishes a rule from social habit. When a habit
is general in a social group, this generality is merely a fact about the
observable behavior of most of the group. In order that there be such a habit
no member of the group need in any way think of the general behavior or even
know that the behavior in question is general; still less need they strive to
teach or intend to maintain it. By contrast, a social rule sets the standard to be
followed by the group as a whole. In order that a social rule exists some must
look upon it as to be followed by others, deviation from it is criticized, and
demand for conformity is made upon others.‟7

OPEN TEXTURE OF LAW

Hart mentions in his book another term i.e. Open Texture of Law according to
which he conveys that all the rules have some limitations and accepts that a
rule cannot be expected to cover the entire condition since everything cannot
be anticipated and hence the legislators introduce rules with certain aim and
these rules though can resolve cases of same standards but there are still
indeterminate number of cases which the legislators could not see while
making a rule. And that‟s where the role of a judge comes in where he
increases the scope of the rule and makes a choice based on past experience.
Hence according to Hart in cases as above the judge uses his discretionary
power and makes an attempt to accommodate the changing social situation
within the rule.

6
Ibid at 151
7
http://www.ebc-india.com/lawyer/articles/2002v2a1.htm

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This view of Hart has been criticized by several philosophers who do not
subscribe to the said way the rule works. Dworkin and Fuller are two critics of
the Harts Open texture Law. As per Dworkin legal system is not just formed by
rules but also have some principles behind them and a judge can only use his
discretionary power to an extent where the principle is not violated.

MINIMUM CONCEPT OF NATURAL LAW: Hart

Hart's basic argument for the minimum content of natural law is simply that
"without such a content law and morals could not for-ward the minimum
purpose of survival which humans have in associating with each other."8 Given
survival as the fundamental aim of humans "reflection on some very obvious
generalizations -indeed truisms -concerning human nature and the world in
which men live, show that as long as these hold good, there are certain rules of
conduct which any social organization must contain if it is to be viable." 9 The
truisms in question consist in the "obvious" observations that humans are
vulnerable to bodily harm; they are approximately equal in strength and
intelligence; they have limited altruism and thus are neither angels nor devils;
they have limited understanding and strength of will; and that limited
resources exist in the world. Given this reality concerning humans and the
world, according to Hart it is a "natural necessity" that there be sanctions to
ensure the minimum forms of protection for persons, property and promises.'9

From above passage it may be concluded that minimum concept of Natural law
doesn‟t mean to have primary rules but the primary shared standards. As Hart
mentions “[Sanctions serve as] a guarantee that those who would voluntarily
obey shall not be sacrificed to those who would not. To obey, without this,
would risk going to the wall.”10

8
H.L.A. HART, THE CONCEPT OF LAW 188 (1961).
9
Ibid at 188-89
10
Ibid at 193

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Clearly Hart while proposing his concept of law did not lose focus from
enforcement of law which is the most imperative step in any legal system.

“RULE OF RECOGNITION according to Hart forms the foundation of the legal

system. Such a rule is accepted by both private persons and officials and is
provided with authoritative criteria for identifying primary rules obligation.
These include reference to authoritative text, legislative enactment, customary
practice and general declaration of specified persons or to past judicial
decisions in particular cases.”11

“In a modern legal system where there are a variety of sources of law, the rule
of recognition is correspondingly more complex. The criteria for identifying the
law are multiple and commonly include a written constitutional enactment by a
legislature, and judicial precedents. In most cases, provision is made for
possible conflict by ranking this criteria in an order of relative subordination
and primacy. There is a difference between "subordination" and "derivation". In
the day-to-day life of a legal system, rule of recognition is very seldom expressly
formulated as a rule. For most part, the rule of recognition is not stated but its
existence is shown in which particular rules are identified either by courts or
other officials or private persons or their advisors.”12

Hart further provides 5 grounds why Humans have come together and why is
there social rule these are:

i. Human vulnerability
ii. Approximate equality
iii. Limited resources
iv. Limited altruism
v. Limited understanding and strength of will

11
https://www.ebc-india.com/lawyer/articles/2002v2a1.htm
12
ibid

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These 5 points of Hart ae in congruence with what Hobbes had though and
believed why humans came together what were the needs for social rules?
Therefore if rules mentioned above are ignored the society‟s foundation will be
compromised with and the legal system will tremble as well.

CONCLUSION

Hart though his understanding and knowledge has tried to provide a

wholesome understanding as to what is Law? Harts concept of Law has been
accepted by almost all the philosophers and educationalist because of its broad
and clear terms. Harts Concept of law which takes a middle path from the
extremist path taken by philosophers at that time by diving law into two part
Primary and Secondary which sets a clear parameter of who is required to be
bound by which law and what are course of action required to be taken if there
is a need to change or repeal a previous law.

He defines three parameters fo making a rule better which are

I. `Rules of recognition ``
II. Rules og change
III. Rules of adjudication.

These three rules have made sure that any primary law my not become
obsolete with the passage of time and changes in circumstances.

Though there are some discrepancies still present in Harts Concept of law but
if we compare and analyze it with other understanding on law it seems t have
given a very clear understanding on this topic.

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