Harris Legal Philosophies, Ch. 9 (explanation of Hart’s Concept of Law)
Hart believed in examining legal concepts by the words used to represent them and how those words were used in ordinary language, inside and outside of the law. Use of words could be sociological evidence for something. From language analysis we discover we deduce sociological information.
If a group has a rule, 2 things exist: (1) Members perform/refrain from performing certain actions, and (2) there must be a “critical reflective attitude” shared by the majority towards the action in question. (1) alone would merely be habit. (2) – the internal attitude-can be demonstrated by demands for conformity e.g. normative language such as “you ought to do this”. When the pressure to conform is great, the rule is an “obligation rule”.
Obligation rules differ from other rules in three respects: (1) the level of pressure for compliance; (2) their association with a prized feature of social life; (3) it is generally recognised that they may cause conflict with a person’s interests.
Obligation rules that are enforced by physical sanctions represent a kind of law; obligation rules that don’t go that far are moral rules.
A society with only obligation rules cannot change its rules nor decide disputed issues, since it has no means by which to do so. Therefore society needs rules of change, adjudication and recognition. Obligation rules = primary rules; Rules of adjudication, change etc = secondary rules. Secondary rules are those that confer power, NOT impose obligations. A legal system comprises both types of rules.
NB an objection to this analysis of rules is to say that some rules are personal, not social, e.g. if I am a vegetarian, nobody may be compelling me to do it, and yet it is a rule to which I subject myself. Therefore, Hart’s analysis only applies to rules which have some degree of social coercion.
Hart’s internal element does not depend on a moral approval of the rule- acceptance may be based on fear, habit, self-interest etc
Hart doesn’t define what a legal system is, but says that the union of primary and secondary rules.
The rule of recognition is the idea that a law is only valid once it has passed through the various stages that the officials etc of the day recognise as being necessary for a law to be valid e.g. if in Britain everybody recognises that “what the queen enacts in parliament is law”, then that is the rule governing the validity of laws.
The rule of recognition exists as “social practice”. This social practice, according to Hart, is to be identified by looking at whether members of a group criticise those who do not comply with it.
Rules of recognition provide criteria by reference to which rules are identified as legal.
For a legal system to exist, there have to be (1) valid rules must be obeyed and (2) the rules of validity/change/adjudication must be accepted by its officials- i.e. obedience of primary rules and recognition of secondary rules by officials.
The point of rules on change, adjudication etc is to avoid the problems of a pre-legal society (that rules cannot change, causing rigidity and uncertainty about whether rules still apply). This approach is diagnostic i.e. it allows us to look at a country and determine whether a legal system exists.
Hart’s said that what the law “is” depends on both the “external” idea of “being obliged” (i.e. coercion, threats etc), and the “internal” idea of “being under an obligation” (feeling of a sense of duty to act in compliance with a law). However, many argue that the internal duty necessarily involves a moral (normative) value judgment. By contrast Raz argues that moral/normative judgments have nothing to do with what law “is” i.e. there is a difference between asking whether a law exists and whether it is a good law. Raz says there is no general moral argument for obeying the law- whether a law exists is just a function of whether the law-making institution has “authority” to do so.