What is law, and how is law different from morality? Last week, we reviewed John Austin’s “command theory of law” (or Legal Positivism 1.0) and Hans Kelsen’s idea of a “basic norm” (Legal Positivism 2.0). This week, we will introduce the main ideas of H.L.A. Hart and discuss his sociological or “Weberian” theory of positive law (Legal Positivism 3.0), which Professor Hart set forth in his influential book “The Concept of Law,” originally published in 1961.
Before proceeding any further, however, I want to state at the outset that Hart made many significant contributions to many aspects of legal theory–his ideas were so original and powerful that he was a giant in the field of jurisprudence, as the “philosophy of law” is called–and it’s also worth noting that Hart lived a fascinating life before he began teaching law at Oxford and writing about legal philosophy; check out this short biography.) Here, I shall focus on Hart’s contributions to legal positivism, i.e. his answer to the questions posed at the start of this blog post.
For Hart, “law” consists of the union of primary rules and secondary rules. Primary rules are the rules of the game, so to speak–i.e. rules that impose duties or confer powers on people. Secondary rules, by contrast, are rules about rules. Specifically, Hart identified three types of secondary rules:
1. Rules of change. This first set of secondary rules determines how the primary rules of a legal system can be changed, modified, or repealed (and who can do these things).
2. Rules of adjudication. This second set of secondary rules determines which public officials have the authority or power to resolve disputes about the meaning or scope of the primary rules.
3. Rules of recognition. This last set of secondary rules specifies which primary rules and secondary rules are actually valid or binding on the people or officials to whom those rules apply. (Put another way, the rules of recognition tell us what counts as “law”: what rules actually apply to any given situation or dispute and what types of arguments are binding or persuasive.)
But where do these secondary rules, in turn, come from; what is the source of these secondary rules? We shall address these questions in my next blog post. For now, it suffices to say that Hart’s Weberian response to these questions will result in the most powerful and original theory of positive law since Plato’s Republic …