H.L.A. Hart: law as a system of rules

Austin had said that law is a command backed by a sanction, and that men obey because they are afraid of the sanction. Hart's objection begins from an ordinary observation: that is not what obedience feels like from the inside, and it is not what people say when they criticise a rule-breaker. A theory built on force cannot explain why a person who dislikes a rule still treats it as binding on himself.

Hart's theory therefore concerns itself with the analysis of the term rule, and with a system of rules.

What a rule is. Rules deal with what ought to be done. They are imperative and prescriptive, they have some of the characters of commands, and they demand repeated activity. Some are constitutive, as the rules of grammar are; others are regulative, as the rules of games such as tennis and football are. These rules are followed as part of the game — and observance of law by the people is likewise part of an ordered, tolerable society.

The two aspects of a rule, which is the heart of the theory:

• the external aspect — the observable behaviour; and
• the internal aspect — the attitude that a behaviour is obligatory.

Hart's illustration of the internal aspect is the one to reproduce. When a person conducts himself to a certain pattern, he requires the same of others; and if others do not conform, he criticises them. That reaction is society's response to a rule or a set of rules — and it is something a theory of commands and sanctions cannot account for, because criticism of a rule-breaker is not the same thing as fear of a punishment.

Obligation, not coercion. People comply with rules not under coercion but out of a sense of obligation. Even those who are opposed to a rule consider it an obligation to obey. Hence law is followed under obligation and not under coercion or force.

Moral and legal rules. Both exist in society. Moral rules apply to every human act; a legal rule applies to a number of such actions. Both apply to individuals whether they like them or not — they are non-optional.

Primary and secondary rules. Out of legal rules has grown the legal system, and Hart's view is that the system arises from the combination of two kinds of rule:

| | What it does | |---|---| | Primary rules | Impose duties. | | Secondary rules | Confer the power of rule-making in the legal system and vest it in an authority, such as Parliament or another authority. |

The combination is what makes the rules uniform and dynamic, and able to adapt to social change. A society with primary rules alone has duties but no way of altering them, identifying them or settling disputes about them; secondary rules supply that.

1. The division into primary and secondary rules is not satisfactory, and a change in the legislative sovereign may create problems.
2. A legal system is not all rules. Many fundamental principles are exclusive and separate from rules, and are found in every developed legal system.
3. The internal attitude is overstated. Observance of rules on the basis of internal or external attitudes, expecting others to follow them, is not true in reality.
4. The account of what ought to be done is incomplete. The truth is that people have found the necessity of a social life; in that a legal system is a must, and basic rules are essential in such a system.

• Against Austin. This is the pairing the paper wants. Austin: command, sanction, fear, a determinate sovereign. Hart: rule, obligation, the internal attitude, an authority constituted by secondary rules. Both are positivists — neither makes the validity of a rule depend on its moral merit — and saying so is what marks out a good answer from a list-of-differences answer.
• With Fuller. Hart's exchange with Fuller in 1958 is the standing example of the argument between positivism and natural law in the twentieth century; see the companion study.
• The trap. Do not write that Hart said law is obeyed because of secondary rules. Secondary rules explain how the system identifies and changes its own primary rules; the reason people obey is the internal attitude — the sense of obligation.