H.L.A. Hart (1907-1992) was a British legal philosopher who made substantial contributions to the philosophy of law and jurisprudence. His works have been highly influential in shaping contemporary legal thought, particularly in the realm of legal positivism.
The Concept of Primary and Secondary Rules
A central aspect of Hart’s theory of law is the distinction between primary and secondary rules. Primary rules are the substantive rules that govern our behaviour, such as criminal laws, contract laws, and tort laws. They are rules of obligation that stipulate what individuals must or must not do.
Secondary rules, on the other hand, are procedural or institutional rules that provide a framework for the operation of primary rules. These include rules of recognition (which establish criteria for legal validity), rules of change (which provide procedures for creating, amending, and repealing primary rules), and rules of adjudication (which set out procedures for determining breaches of primary rules and applying sanctions).
This distinction between primary and secondary rules allows for a more nuanced understanding of legal systems, reflecting not just the content of laws but also the mechanisms for their creation, modification, and interpretation.
Legal Positivism and Natural Law Theory
Hart is often considered a leading figure in legal positivism, a school of thought that views law as a set of human-made rules separate from morality. This stands in contrast to natural law theory, which posits that valid laws must be rooted in universal moral principles.
Hart’s brand of legal positivism, often contrasted with that of John Austin, brings a more sophisticated approach to understanding law. While Austin saw law as the command of a sovereign, enforced by the threat of punishment, Hart argued for a more complex, rule-based understanding of law that encompasses both primary and secondary rules.
Hart’s Theory of Law and Morality
While Hart, as a legal positivist, maintained a distinction between law and morality, he did not entirely divorce the two. He recognized that morality could influence the law and that the law could reflect society’s moral values.
Hart’s “minimum content theory of natural law” argued that certain basic moral rules, such as prohibitions against violence or theft, are necessary for any society’s survival and are thus likely to be found in its legal system. However, he held that beyond this minimum, laws could vary widely and need not align with morality.
Critics, particularly from the natural law school, argue that Hart’s theory fails to account for the inherent normative aspects of law – the idea that law, by its nature, makes a moral claim on its subjects. Nevertheless, Hart’s work remains a cornerstone of legal positivism and has greatly influenced our understanding of law and its relation to morality.