Transformation of English Legal Theory: From Austin's Command Theory to Hart's Concept of Law

Introduction

The English legal theory which once remained dominated by John Austin’s ‘Command Theory of Law’, underwent a major transformation in 1961 with the contribution of Herbert Lionel Adolphus Hart (1907-92) through his famous work published as ‘The Concept of Law.’ In the field of Anglo-American jurisprudence, H.L.A Hart is regarded as a leading contemporary legal positivist for he has successfully added a new dimension to the study of jurisprudence and the philosophical understanding of the foundations of law.

As a legal positivist, H.L.A. Hart endorses a conceptual separation between law and morality in his theories and claims to have found the key to the science of jurisprudence in the union of what he calls the primary and the secondary rules. Hart holds the view that a proper elucidation of the concept of law flows from the association of primary and secondary rules in a society that are independent of any presupposed morality. He has thus attempted to propound a morally neutral legal philosophy while explaining the concept of law for he disapproves the notion ‘that a legal system must exhibit some specific conformity with morality or justice, or must rest on a widely diffused conviction that there is a moral obligation to obey it’.

The present work is an attempt to analyse H.L.A Hart’s philosophical understanding of the concept of law and to shed light on its moral underpinnings in order to draw an inbuilt connection between law and morality in his works, which he as a positivist denies to accept. What follows is an argument that Hart’s legal system which he deems as a union of primary and secondary rules portrays ultimate laws as intrinsically backed by morals.

H.L.A. Hart’s Concept of Law

In order to arrive at the proposed conclusion that Hart’s concept of law is inseparable from morality it is pertinent to delve into the basic features of the Hart’s elucidation of the nature of law.

Out of his several works, the most renowned contribution of H.L.A. Hart to English legal jurisprudence is considered to be his writings in The Concept of Law wherein Hart has explained the ‘essence’ of law as a union of ‘primary’ and ‘secondary’ rules which according to him, together constitute the ‘heart’ of a legal system. He describes the relation between the two types of rules as under :

The main theme of this book is that so many of the distinctive operations of 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 they may not always be found together whenever the word ‘law’ is correctly used.

Therefore, Hart accords, the union of primary and secondary rules, a central place in his legal theory for he believes that they are explanatory of the basic concepts that constitute the framework of legal thought. He believes that the starting point of every legal theory is in the acknowledgement of a necessary truism that where there is law the human conduct becomes obligatory.

Primary Rules are elucidated as ‘duty imposing’ rules which require persons to do and abstain from performing certain actions. Characterized as basic rules, the primary rules bond the people in a society under specific duties and obligations, telling them what they can do, like paying their income tax and what they cannot like refrain from doing murder, regardless of their individual wishes. For example, rules of criminal law, law of tort, law relating to trespass.

However, as the content of primary rules remain uncertain, Hart supplements them by what he calls the Secondary rules. Described as the ‘power conferring’ rules, the Secondary rules are ancillary to the primary rules as they facilitate the introduction, modification, variation, alienation and determination of violations of the primary rules. It is therefore that Hart describes secondary rules as ‘rules of primary rules.’ These are rules that are procedural and remedial in the nature, for example, laws prescribing the validity of contracts, laws conferring power to government authorities to legislate and impose sanctions, etc.

Hart further categorises Secondary Rules as rules of change, rules of adjudication and rules of recognition.

Rules of change, as their name suggests, prescribe the procedure by which the primary rules may be amended, given the changing demands of the society. Rules of Adjudication, are determinative of any violations of primary rules. The ultimate rule is the Rule of Recognition that provides legitimacy to the primary rules and is believed to unite the entire legal system into a coherent whole. According to Hart, ‘these secondary rules provide the centralized official ‘sanctions’ of the system.’

Taking Austin’s command theory to task, Hart claims that it is in the union of the primary and secondary rules, together with the ultimate rule of recognition ‘there lies what Austin wrongly claimed to have found in the notion of coercive orders, namely, ‘the key to science of jurisprudence’. Unlike his predecessors, Hart does not subscribe to the notion of laws being backed by command and a sanction as he holds that, ‘law surely is not a gunman situation writ large, and a legal order is surely not to be identified with compulsion.’ Hart substitutes coercive orders by the primary rules of obligation that lay the standard of right conduct and considers them an indispensable element of the legal system His subscription to fundamental rules as foundations of a legal system instead of coercive commands, makes morality