As abstruse as this book can be, it deals with a simple question. What is law? Conventionally, to speak of `the law' is to refer to a particular genus of rules involving the exercise of political sovereignty for social control {as opposed to the `laws' of natural physics, etiquette, or provincially defined systems of rules (e.g. sports, games)}. Still a more precise definition of law has largely eluded legal philosophers, who have -- akin to physicists' pursuit for a unified theory of reality (TOE), labored to deduce their own uniform definition of law. However HLA Hart, like legal realist Karl Llewellyn before him, embraces a different approach to jurisprudence. For Hart, law is a protean, multifarious system that both colloquially and operationally encompasses too many socio-political phenomena for one definition. Jurists can chase down the `essence of law', but upon lassoing the concept within one's definition, the haul proves either incomplete or unfamiliar in conceptualizing it. As Hart notes, the legal landscape poses many grey areas and borderline aspects, which require legal philosophies to contort their theories to fit the phenomena rather than vice versa. The stretch marks that result expose an unsound theory. Karl Llewellyn summarizes well:
"The difficulty in framing any concept of "law" is that there are so many things to be included, and the things to be included are so unbelievably different from each other. Perhaps it is possible to get them all under one verbal roof. But I do not see what you have accomplished if you do. For a concept, as I understand it, is built for a purpose. It is a thinking tool..."
So while jurisprudence stumbles to place law "under one verbal roof", the point of the exercise is to not to define law, but understand it: and that which defines law confines it. Hart's tome focuses early and often in picking apart jurisprudential theories which fail to facilitate our understanding of law. Principal among these is the "imperative theory" of John Austin. In fact, to properly understand Hart's Concept of Law, it is advisable to read Austin's The Province of Jurisprudence Determined -- the object of many of Hart's animadversions to devising a "uniform definition" of law. But to summarize tersely, Austin conceived law as the commands from a political superior (sovereign) that threaten punitive sanctions should an actor not obey.
Hart perceives a few problems with this imperative theory of law. Firstly, Hart contends that the imperative theory does not properly account for the private law of "power conferring rules" -- i.e. rules structuring contracts, wills, and the creation of other rights, instead focusing provincially on the public law of penal statutes. The private law does not pose `punitive sanctions', in that failure to comply with contract simply results in nullification of the instrument, not punitive repercussions. Perhaps more importantly, Hart also notes that there are many laws which impose legal obligations upon the sovereign themselves (executive, legislator, and courts). This phenomenon is inconsistent with the imperative theory's definition of sovereign as the institution which has no legal obligation to follow the law. In response, Austin and others have contrived qualifications and alterations to the theory to explain these phenomena (See Chapter III). But once more, Hart calls these qualifications what they are --fictions to resuscitate an incomplete definition of law. What results is "distortion at the price of uniformity."
Legal philosophy suffers the complexities of any ontological pursuit. Struggling to ascertain the category of being for a complex phenomenon, to ask "what is law?" is akin to asking, "what is art?" or, "what is time?" These concepts may or may not have a discernable intrinsic property absent which they lose their essence. But to insist on identifying such a property simply for the sake of ontological neatness does more harm than good. Thus the "obscuring vice" of over-simple theories of law, Hart contends, is that in its designs to ferry the concept to a uniform definition, they jam all the occupants into one car to arrive there. The result is a crammed, uncomfortable trip for us the citizens -- who if given their choice, would never have undertaken the journey in this manner. This is the "distortion" that Hart references. Even if a theory successfully achieves a uniform conceptualization of law, its conceptual clarity satisfies itself and little else -- it still fails as an optimal, comprehensive understanding of what law actually is and how it actually operates.
For example, the imperative theory of law would conceive the private law of contracts in terms of its sanction -- either to the party who breaches the contract or to the official who fails to enforce it. But that is not how the parties themselves, or the population generally, would describe the contractual arrangement. Any theory of law which only focuses parochially on the point of violation misses the point: "The principal functions of the law as a means of social control are not to be seen in private litigation or prosecutions, which represent vital but still ancillary provisions for the failures of the system. It is to be seen in the diverse ways in which the law is used to control, to guide, and to plan life out of court."
Instead, Hart offers a more humble jurisprudence, and as Llewellyn did before him, does not expound a definition but rather a conceptual polestar: a point of reference that provides "explanatory power" in our understanding of law, rather than a Webster's dictionary entry. This is "the fresh start" that Hart insists jurisprudence needs. Observing law as more complex than the state's technical form of coercion or a `command and control' modality, Hart sets forth his own theory of law in Chapter V. In Hart's view, law consists of two interrelated forms of rules. The first species of rules (primary rules) consist of those that impose duties or obligations upon the physical behavior of the actor (e.g. regulatory statutes). The second species of rules consist of those that delineate who may produce, modify, or extinguish primary rules (e.g. governmental constitutions). Most traditional jurisprudence conflate both forms of rules as `primary' directives bearing sanctions.
For Hart, with the exception of primitive communities "closely knit by ties of kinship, common sentiment, and belief", secondary rules are essential for effectuation of primary rules. In the form of a `rule of recognition', secondary rules delineate which political agent or instrumentality is to be accorded either the social approval of authority or, in modern societies, the appellation of law. Article I of the American Constitution as a secondary rule, for example, specifies that Congress is the authority which may issue laws. Secondary rules may also identify which political agent or instrumentality may amend, extinguish, enforce, or adjudicate laws. Primary rules are therefore derivative and dependent upon these secondary rules. Secondary rules do not bear sanctions, but instead require common social acceptance for their vibrancy. Rather than rush headlong into a definition, Hart states that it is the nexus between primary and secondary rules that offers optimal understanding of law: sufficiently accounting for all that which the `uniform concepts of law' do not: "We shall not indeed claim that wherever the word `law' is `properly' used this combination of primary and secondary rules is to be found...we accord this union of elements a central place because of their explanatory power in elucidating the concepts that constitute the framework of legal thought." So to summarize Hart's jurisprudence, it is the union of primary rules and secondary rules which provides the most fertile ground for understanding the nature of law.
The latter half of Hart's treatise concerns the `is vs. ought' controversy of legal philosophy that has spawned (approximately) two of its most famous doctrinal schools: natural law and legal positivism. While conceding that morality ubiquitously infuses the content of every legal system, Hart sides with the positivists in asserting that there is no inherent nexus between law and morality in the existence of a legal system. In other words, morality is an incidental rather than necessary component of legal systems. Natural Law asserts, however, that a legal system must contain a minimum degree of moral force without which the society upon which the legal system depends will eventually dissolve: "there are certain rules of conduct which any social organization must contain if it is to be viable."
Hart concedes that law must protect its constituent members in order to function, which he terms the "minimum content of natural law," and which comprise "the minimum forms of protection for persons, property, and promises which are similarly indispensable features of municipal law." But Hart claims that this minimum content of law is neither inherent to a legal system (e.g. international law - where such protections are often flaccid exhortations), nor a `fact' about law. Instead, Hart claims that contingent upon the social conditions akin to a Hobbesean state of nature, only then is this minimum content "a natural necessity" of law. Lastly, Hart cautions that this natural necessity is not a normative one, in that it is still descriptive of what legal systems have for their self-preservation without entering the realm of `ought'. To vindicate his positivist membership however, Hart spends a full chapter restating the club ethos: laws need not have a certain moral character in order to be legally valid. Men may obey laws for non-moral reasons, while sovereigns and officials alike will enforce laws which contravene settled moral principles. To state that law derives much of its content from greater social morality is to give up no ground ¬- such an assertion refers to a historical reality rather than a necessary condition of legality.
I didn't give this book five stars for two reasons. Firstly, both its content and style remain elusive to most readers. Legal theory is arcane enough -- but when verbalized in the pedantic prose of a legal philosopher, the readability is only exacerbated. Moreover, in the quest to rid every germane term of its conceptual baggage, these terms become loaded dirty words -- pregnant with nuance, stipulated definition, and their own conceptual baggage. Check your conventional understandings of what `rule', `law', `command', `punishment', `moral', or `sovereign' mean at the door, for books of this kind will take a scrub brush to your lexicon. So get ready for some semantic hair-splitting, which unfortunately, is necessary for the exercise. In addition to the recondite quality of the content and style of this book, I think modern legal theory has nothing but academic significance (and that is putting it nicely) -- particular in the post New Deal regulatory state where much sovereignty has been delegated to a hydra-headed regime of administrative agencies. Consequently, I would recommend this book only to people acutely interested in the matter.
The second reason is that Hart's discussion of law and morality is far from convincing. Setting up a straw man argument for the Natural Law proponents, Hart does not adequately address the more sophisticated forms of Natural Law theory. Rebuffing classic teleological Natural Law is an easy task, as most concede that there is a qualitative difference between the invalidity of a law and its immorality. Few still adhere to the Thomist "Lex iniusta non est lex" conception of natural law, where a law is only the political integuments of an underlying moral precept. Nevertheless, many still contend that law bears an inherently `evaluative' character as to the object of its regulation. This is really only to say that law serves some normative end, which is to say even less: one cannot understand law as written without recourse to -- (gasp!) extra-legal normative considerations. Remembering that Hart's principal objective is to facilitate understanding of law, I found his discussion of law and morals unsatisfying -- not as to the argument itself but rather its insufficient exposition of the positivist stance. That is why I consider Hart's curt postscript (towards the tail end of the book), which address Dworkin's criticism of positivism, my favorite part of the book. As the semantic squabbles between the 'is' and 'ought' camps of jurisprudence seems only a definitional gripe, which in contemporary legal philosophy appears all the more trivial as the sides have edged even closer on common ground, perhaps Hart's most important contribution remains toppling the imperative theory of law - not criticizing natural law.
