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The Concept of Law

H. L. A. Hart · 1961 · Medium (150–350 pages)

4.3 from 3 reviews · 41 views

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What it is

Hart's book sets out to clarify the general framework of legal thought. He begins by criticising John Austin's theory that law consists of commands backed by threats issued by a sovereign whom people habitually obey, arguing that it cannot account for laws that confer powers, for the continuity of law across changes of ruler, or for the way officials treat rules as binding. In its place he proposes that law is a union of primary rules, which impose duties, and secondary rules, which govern how primary rules are identified, changed and applied, chief among them the rule of recognition. He emphasises the internal point of view of those who accept rules as standards, discusses the 'open texture' of legal language and judicial discretion, the minimum content of natural law, the relation between law and morality, and international law. The second edition (1994) adds a postscript replying to Ronald Dworkin.

Why read it

It is the founding text of modern legal positivism and the book every later theory of law has had to answer.

Where to start

Read the chapters criticising Austin and then the chapter introducing primary and secondary rules.

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Reviews

  1. Thandeka Mokoena

    South African law after 1994 is a good test case for Hart: a new rule of recognition founded on a constitution full of moral language, including ubuntu and dignity. Hart's framework handles the change better than his critics expected. The postscript to Dworkin is worth reading too.

  2. Hamza Qureshi

    I read Hart beside Iqbal, and the rule of recognition is the most useful concept I took from legal philosophy into practice. When our courts argue about what counts as law in a constitutional crisis, they are arguing about a rule of recognition, whether they use the term or not. Elegant and clear.

  3. Khalid Mahmood Awan

    Thirty-one years on the bench taught me that judges do have discretion in hard cases, as Hart says, and that it frightens them. His chapter on open texture describes my working life. I am less convinced that law and morality can be separated as cleanly as he wished; uṣūl al-fiqh never pretended they could.