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III.THE VARIETY OF LAWS

Hart now tests the basic model of coercive orders against possible and multiple objections
to further develop the model into one that accurately resembles that of law.1 One such
objection arises from the different varieties of law found in all systems which do not fit the
simple model generated. This objection can be further divided into three principal groups in
order to address each part accurately in the discussion, the three groups are (1) the content
of laws, (2) their range of application and (3) their mode of origin.

I.THE CONTENT OF LAWS

It may be conceded that multiple variety of laws fit the simple model of coerced orders, some
of which are criminal law and the law of torts. Basically, there is a punishment or sanction
which is attached by law to breaches or violations of the certain kinds of conduct which is
defined by such laws as to avoid, with the sanction serving as a motivation for abstaining
from such activities. Hart describes such breaches as a breach of duty and the
compensation or other legal remedies a sanction.2 However, he also shows the types of
classes where it seems that the simple model developed would fail altogether, basically such
laws are those procedural in nature, those which confer legal powers to private individuals
and those to a public official, to wit,

Such laws do not impose duties or obligations. Instead, they provide individuals with facilities for
realizing their wishes, by conferring legal powers upon them to create, by certain specified procedures
and subject to certain conditions, structures of rights and duties within the coercive framework of the
law. various legal rules that confer legal powers on private individuals [such as] rules relating to
capacity or minimum personal qualification (such as being adult or sane) which those exercising the
power must possess, rules [that] detail the manner and form in which the power is to be exercised,
rules [that] delimit the variety, or maximum or minimum duration, of the structure of rights and duties
which individuals may create by such acts-in-the-law, [as well as] a further class of laws which also
confer legal powers but, in contrast to those just discussed, the powers are of a public or official rather
than a private nature.3

The peculiarity of such laws is that unlike orders in that they do not require persons to do
things, but may confer powers on them; they do not impose duties but offer facilities for the
free creation of legal rights and duties within the coercive framework of the law. The
violation of such laws does not constitute an offense or breach of duty as understood in
the simple model of coercive order, but rather, it merely results to the nullity of the action
for lack of compliance with some condition essential for the valid exercise of such legal

1 As Hart puts it, These are some of the most important of many possible objections. Plainly some modification
of the original simple model will be necessary to deal with them and; when they have all been accommodated,
we may find that the notion of general orders backed by threats has been transformed out of recognition. Ibid.
Page 26.
2 Ibid. Page 27.
3 Ibid. Page 28.
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power.4 The analysis even becomes more complicated when looking at laws conferring such
legal powers to public officials as considerations due to public interest would make non-
compliance with such laws result not to automatic nullity rather a conditional one where
only upon the express declaration of a higher power would such action result to a nullity. An
example would be law conferring jurisdiction to courts where even though a judge may
decide a case which is outside his jurisdiction, [that] even if it is plainly one outside the
jurisdiction of the court to make[,] it is obviously in the interests of public order that a court's
decision should have legal authority until a superior court certifies its invalidity, even if it is
one which the court should not legally have given.5 Nevertheless, such classes of laws have
one thing in common, that failure to conform to the rules set by such laws, whether they are
rules defining the conditions for the valid exercise of legal powers by private individuals or
the rules of jurisdiction (those to public officials), would result, whether immediately or
conditionally, to the nullity of such action. Thus, Hart explains that the radical difference in
function between such rules prevents the use of the terminology appropriate to conduct
in its relation to criminal law. which leads him to consider two alternative arguments to
show that despite such differences between criminal law (or those analogous to the simple
mode of coercive orders) and those recently discussed, such differences are merely
superficial and that ultimately the simple model would be adequate for the analysis of both
rules conferring powers and rules of criminal law. The two alternative arguments are (1)
both power-conferring rules and the rule of criminal law constitute standards by which
particular actions may be critically appraised by reference to the rules as legally the right
or wrong to do,6 and (2) rules of the power-conferring sort, though different from rules
which impose duties and so have some analogy to orders backed by threats, are always
related to such rules whereas while rules like those of the criminal law impose duties, power-
conferring rules are recipes for creating duties. 7

Nullity as a sanction

The first alternative argument is used to justify the reason for stretching the simple idea of a
threat of evil or sanction as to include the nullity of a legal transaction. Thus, Heart using
the first alternative argument shows the fundamental identity of the two sorts of rule and
exhibits both as coercive orders, fastens on the nullity which ensues when some essential
condition for the exercise of power is not fulfilled.8 Basically, it is urged that like the
punishment attached to the criminal law, a threatened evil or sanction exacted by law for
breach of the rule is present as well for power-conferring ones. Although there may be some
minor objections to such arguments, such as that the nullity may not be an evil per se to a
person, Hart considers them as mere trivialities as what is important is to only think of
power-conferring rules as designed to make people behave in certain ways (or negatively to
define a certain type of conduct which the rule prohibits) and as adding nullity as a motive
for obedience (or sanction to discourage it) in order to assimilate such rules to orders backed

4 Ibid. Page 28.

5 Ibid. Page 30.
6 Ibid. Page 32-33.
7 Ibid. Page 32.
8 Ibid. Page 33.
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by threats.9 Therefore, Hart closes the analysis of the first alternative argument with the
following,

The argument which we have here criticized is an attempt to show the fundamental identity of
power conferring rules with coercive orders by widening the meaning of a sanction or threatened
evil, so as to include the nullity of a legal transaction when it is vitiated by non-compliance with such
rules.

Power-conferring rules as fragments of laws

The second alternative argument, instead of attempting to show that these rules are a species
of coercive orders, denies power-conferring rules the status of law, where in essence the
rules which confer powers are excluded narrowing the meaning of the word law and re-
classifying such rules as merely incomplete fragments of coercive rules where the latter are
the only genuine rules of law.10 The view looks at law, as adopted by Kelsen, as one where
law is the primary norm which stipulates the sanction.11 That is, there is no law prohibiting
activities, rather, there is only a law directing official to apply certain sanctions in certain
circumstances to those who do such defined activities. With such a view, the content of the
law becomes of the following nature,

What is ordinarily thought of as the content of law, designed to guide the conduct of ordinary
citizens, is merely the antecedent or 'if-clause' in a rule which is directed not to them but to officials,
and orders them to apply certain sanctions if certain conditions are satisfied. All genuine laws, on
this view, are conditional orders to officials to apply sanctions. They are all of the form, 'If anything
of a kind X is done or omitted or happens, then apply sanction of a kind Y.

Hart now asserts that legal rules of every type, including the rules conferring and defining
the manner of exercise of private or public powers, can now be restated in such conditional
form. However, such rules are fragments of law as they merely specify the general conditions
under which courts are to apply sanctions, such forms are essentially if clauses and not
complete rules, as the theory disentangles the substance (coercive rules) from the obscuring
forms. According to Hart, an analysis of this sort would have the following effects,

The theory involves a shift from the original conception of law as consisting of orders backed by
threats of sanctions which are to be exacted when the orders are disobeyed. Instead, the central
conception now is that of orders to officials to apply sanctions. On this view, it is not necessary that
a sanction be prescribed for the breach of every law; it is only necessary that every 'genuine' law shall
direct the application of some sanction. So it may well be the case that an official who disregards such
directions will not be punishable; and of course this is in fact often the case in many legal systems.

Wrapping the analysis of the second alternative argument, Hart emphasizes that such
general theory takes one of two forms, one less extreme than the other, with the less extreme
being the original conception of coercive orders which refer primarily to the conduct of
ordinary citizens and not merely to officials, as well as the lack of need for recasting as [they]
are laws as they stand, and need no recasting as fragments of other complete rules; for they

9 Ibid. Page 34.

10 Ibid. Page 35.
11 Ibid. Page 35.
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are already orders backed by threats. 12 While the more extreme theory is where recasting is
needed, specifically on rules which confer legal powers which are mere fragments of the real
complete laws of orders backed by threats since such power-conferring laws are recast as
specifying some of the conditions under which ultimately such a legal duty arises. Therefore,
Hart closes with the following both versions of the theory attempt to reduce apparently
distinct varieties of a legal rule to a single form alleged to convey the quintessence of law.
Both, in different ways, make the sanction a centrally important element, and both will fail if
it is shown that law without sanctions is perfectly conceivable.13

Distortion as the price of uniformity

The specific criticism, however, to the alternative arguments discussed is that they purchase
the uniformity of patter to which they reduce all laws at the high price of distorting the
different social functions which different types of legal rule perform; this is most evident in
the recasting of the criminal law demanded by the theory in its most extreme form.

Basically, by attempting to provide a uniform way of describing law, such as by recasting

them or even by defining them as coercive orders, we tend to conceal many of the other
elements which makes a specific law, a law. The uniformity imposed on the rules conceals
the ways in which such rules operate and the manner in which people use them in guiding
their everyday activities. An example would be the way we view our simple model as
coercive orders where, although it leaves the criminal law and all other laws which impose
duties untouched, it reduces all rules conferring and defining the manner of exercise of legal
powers to such single form. Moreover, as already mentioned, such distortions become more
apparent with regards to recasting, as Hart puts it:

The reduction of rules conferring and defining legislative and judicial powers to statements of the
conditions under which duties arise has, in the public sphere, a similar obscuring vice. Those who
exercise these powers to make authoritative enactments and orders use these rules in a form of
purposive activity utterly different from performance of duty or submission to coercive control. To
represent such rules as mere aspects or fragments of the rules of duty is, even more than in the
private sphere, to obscure the distinctive characteristics of law and of the activities possible within
its framework. For the introduction into society of rules enabling legislators to change and add to
the rules of duty, and judges to determine when the rules of duty have been broken, is a step forward
as important to society as the invention of the wheel. 14

II.THE RANGE OF APPLICATION

Even a penal statute, which comes closest to the simple model of coerced orders, has often a
rage of application different from that of orders given to others. Such an example would be
the fact that legislation may perfectly well have a self-binding force which highlights the fact
that although a vertical or top-to-bottom view on law may be attractive for its simplicity, a
12 Ibid. Page 37.
13 Ibid. Page 38.
14 Ibid. Page 41-42.
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higher entity issuing orders to elements below it, in practice such top entity may all the well
issue orders which also binds itself. A way to reconcile such problem would be to view the
single natural person of the legislator whose enactments are self-binding as two persons,
one acting in his official capacity and one in his private capacity. However, even such
reconciliation is reserved by Hart, as the same effectively applies only in terms of power-
conferring rules if law. Hart also discusses another way of reconciling the problem, by
looking at it as a promise which is to say something which creates an obligation for the
promisor. Thus, with the second attempt of reconciliation , Hart explains that by looking at
it as a promise, we can understand that when we promise we make use of specified
procedures to change our own moral situation by imposing obligations on ourselves and
conferring rights on others; [an] exercise [of] a power conferred by rules to do this.15
However, such second attempt, although provides a better understanding, may also be futile
as there are many differences between making a promise and that of law. Thus, Hart merely
synthesizes such insights and closes the second objection by the following,

What is most needed as a corrective to the model of coercive orders or rules, is a fresh conception of
legislation as the introduction or modification of general standards of behavior to be followed by the
society generally. The legislator is not necessarily like the giver of orders to another: someone by
definition outside the reach of what he does. Like the giver of a promise he exercises powers
conferred by rules: very often he may, as the promisor must, fall within their ambit.16

III.MODES OF ORIGIN

Lastly, it is said that the enactment of a law, like giving of an order, is a deliberate datable act
where those who take part in legislation consciously operate a procedure for making law,
just as the man who gives an order consciously uses a form of words to secure recognition
of and compliance with his intentions. However, although the enactment of a statute is in
some ways analogous to the giving of an order, some rules originate by custom and do not
owe their legal status to any such conscious law-creating act.17 Thus, Hart attempts to
reconcile such problem by resolving the legal recognition needed for such peculiar
circumstances. It cannot be merely said that a custom achieves legal status once a court, the
legislature or the sovereign orders such custom to be law, as the adoption of such a theory
would entail giving order an extended meaning which would not serve, according to Hart,
the discussion in any fruitful way since such an extended meaning would not recognize the
existence of a custom prior to such order.18 Rather, he points to the concept of a tacit order
where a sovereign, by its non-interference, may be considered to have tacitly expressed his
will and is a silent substitute for the words of explicitly ordering a custom to be law. As Hart
puts it,

It is in this light that we are asked to view customary rules which have the status of law in a legal
system. Till the courts apply them in particular cases such rules are mere customs, in no sense law.

15 Ibid. Page 43.

16 Ibid. Page 44.
17 Ibid. Page 45.
18 Id.
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When the courts use them, and make orders in accordance with them which are enforced, then for
the first time these rules receive legal recognition. 19

Hart acknowledges that there are criticisms to such an idea, the first is that it is not
necessarily the case that until they are used in litigation customary rules have no status as
law. To this Hart simply answers that one is merely playing with variations as in different
jurisdictions of course there would be different rules governing how customs are treated,
however, the only important thing to remember is the dogmatic view that nothing can be law
unless and until it has been ordered by someone to be so, the development of a tacit order
merely establishes the existence of a custom, with the official and express order being the
reckoning point of its legal effect. The second one comes in the form that even if it is conceded
that it is not law until it is enforced by the court in a particular case, it is possible to treat the
failure of the sovereign to interfere as a tacit expression of the wish that the rules should be
obeyed.20 Hart disposes of such contention by showing that in practice it is rarely possible to
correctly ascertain that such non-interference necessarily meant their tacit approval that
such custom must be followed as in most cases the legislature, and rarely the electorate, pay
much attention to customary rules. Basically, what Hart attempt to do is to extend the notion
of an order from a verbal to a tacit expression of will, consisting in non-interference with
orders given by subordinates. 21

Moreover, such development of the model as discussed is simply the start of a long journey
in developing our general theory of law. Thus, as a reservation to be kept in mind along the
way, Hart leaves his readers with the following:

Notwithstanding the ingenuity of these devices, the model of orders backed by threats obscures
more of law than it reveals; the effort to reduce to this single simple form the variety of laws ends by
imposing upon them a spurious uniformity. Indeed, to look for uniformity here may be a mistake,
for, as we shall argue in Chapter V, a distinguishing, if not the distinguishing, characteristic of law
lies in its fusion of different types of rule.22

19 Ibid. Page 46.

20 Ibid. Page 47.
21 Ibid. Page 48.
22 Ibid. Page 49.