Copyright 2003 by Donald C.

Hubin
Harts Theory of Law
Don Hubin
H.L.A. Hart
Staunch critic of
Austins Positivism
Presents and
defends a form of
positivism that
incorporates
insights of natural
law legal theory
and legal realism.
H.L.A. Hart (1907-1992)
Law: the Slogan
Jurisprudential Slogans
NLLT: Law is an ordinance of reason
promulgated for the common good by him
who has care of the community.
Austin: Law is the commands of the
sovereign.
Legal Realism: Law is (a prediction of)
what courts do.
Hart: Law is a union of primary and
secondary rules.

Rules
Partial Analysis:
Distinguishing:
As a rule
It is a rule that
Excessive contrary behavior
does not falsify the claim that it
is a rule that
Excessive contrary behavior
makes it not true that as a
rule
Contrary behavior is a violation Contrary behavior is a mere
exception
Normative (prescribes behavior) Descriptive of a regularity
It is a rule that As a rule
Rules
On Harts view:
Rules are essentially normative
They are irreducible to mere descriptions
of behavior that comports with the rule

Primary and Secondary Rules
Primary rules are rules directly
regulating behavior
Examples include: many elements of the
criminal law
Secondary rules are rules about rules;
They regulate how other rules are
made, changed, applied and enforced.
Examples include: rules in a constitution
about how to change the constitution or
what body is to interpret the other rules
The Need for Secondary Rules
Hart illustrates the need for secondary
rules in a complex legal system by
imagining a society run only with
primary rules. He calls these primitive
legal systems and thinks they constitute
a borderline legal system.
Such a society suffers from three
defects:
Uncertainty
Static Nature
Inefficiency
Primitive Legal Systems
In a primitive legal system, there are
few or no secondary legal rules.
Undesirable behavior is controlled
through custom with no formal
provisions for:
Making law
Changing law
Adjudicating disputes about law
Enforcing law
Uncertainty of Primitive Legal Systems
There is unclarity about the content of
law.
Customs are not explicitly stated and
different people can have different
understandings of what the prevailing
customs are.
This is especially true in borderline
cases.
Static Nature of Primitive Legal Systems
Without formal rules for changing the
primary rules of a legal system, the
legal system can change only slowly
through widespread changes in the
customs.
This inhibits the legal systems ability to
respond to new situations
Example: Paternity Fraud
Inefficiency of Primitive Legal Systems
Without courts or police, a primitive
legal system has no effective and
efficient process for adjudicating legal
disputes and enforcing the law.
Solving the Problems of Primitive
Legal Systems
Uncertainty: Solved by instituting rules
of recognition. These delineate what is
and what is not a legal rule.
Static Nature: Solved by instituting rules
of change. These specify how legal
rules can be amended or repealed.
Inefficiency: Solved by instituting rules
of adjudication. These say how
disputes are resolved and legal rules
enforced.
Interim Summary
Law is a union of primary and
secondary rules
Now we know what Hart thinks rules are.
We know how he distinguishes primary
from secondary rules
We know why he thinks secondary rules
are required in a complex legal system.
What is this stuff about a union
The Union of Primary and
Secondary Rules
Law isnt just a set of primary and
secondary rules.
It is a structured hierarchy.
Lower order rules are rules of law
because of the relation they bear to the
higher order rules.
Higher order rules determine the legal
validity of lower order rules.
The Hierarchy of Legal Rules
The picture is something like this:
U.S. Constitution
Secondary Rule: States
have the power to create
laws not in conflict with the
Constitution.
Secondary Rule:
What the state legislature
passes and the Governor
signs is law.
Primary Rule:
Dont kill.
Avoiding Regress in the Hierarchy
Obviously, the hierarchy must end
somewhere or there will be an infinite
regress in explaining the legal validity of
rules.
For Hart, the hierarchy ends in what he
calls The Ultimate Rule of Recognition
(or URR, for short).
The Ultimate Rule of Recognition
The Ultimate Rule of Recognition
(URR) is:
Supreme: Rules identified by the URR
are valid even if they conflict with rules
identified by other criteria, but not vice
versa.
Ultimate: The URR determines the
validity of all other rules in the system
but no other rule determines the legal
validity of the URR.
Validity of the URR
Hart thinks questions about the legal validity of
the URR are confused. The URR is neither
valid nor invalid.
Legal validity is a property of the subordinate legal
rules of a legal system.
But, Hart thinks that the URR exists as a
complex social fact of the behavior and
attitudes of legal officials.
This is a concession to the legal realist. How courts
and other legal entities behave and what attitudes
they have is crucial to understanding the core of a
legal system.
Harts Concession to NLLT
The sort of union of primary and
secondary rules Hart has described so
far could describe the rules of the
National Football League as much as of
a state legal system.
To identify what is special about law in
the sense jurists are interested in it,
Hard makes a concession to the Natural
Law Legal Theorist.
Harts Minimal Natural Law Content
Legal systems must address
themselves to fundamental problems of
the human predicament
Human vulnerability
Approximate equality of abilities and
aptitudes
Limited altruism
Limited resources
Limited understanding and strength of will
The Human Predicament
These mundane features of human
existence create problems that social
institutions attempt to solve.
Law, as it is understood by jurists, is an
attempt to ameliorate the human
predicament.
This is a part of the concept of law.
Law, Morality and the
Human Predicament
Social morality addresses these same
problems of the human predicament.
Therefore, there is a necessary content
to law and it is the same content that
moral institutions address.
This constitutes a necessary connection
between law and morality.
The Connection Between
Law and Morality
Unlike the classical natural law legal theory,
this view does not see morality as a filter on
what can be a law.
It applies only at the level of the entire legal
systemi.e., it is holistic rather than atomistic.
It only requires a content overlapi.e., that law
focus on the same problems that generate the
need for social morality.
But it does concede that law cannot be
understood purely formally. We must attend
to the content of a system of rules to know if it
constitutes a legal system.
Minimal Nature of Harts Concession
This connection between law and
morality is minimal because:
It is compatible with gross immorality. The
requirement that the system of rules
address the amelioration of the human
predicament does not entail that it
addresses these matters justly.
Even this minimal content overlap
requirement only applies at the level of the
entire system.
Harts Concession to Legal Realism
Hart concedes that in determining the
content of the URR, the actual behavior
and attitudes of legal officials is crucial.
Moreover, Hart rejects mechanical
jurisprudence and holds that legal rules
inevitably involve vagueness. In these
penumbral areas of legal rules, the
realist is right that law is whatever the
courts say it is.