The conventionality Thesis: Law as Social Rules

The Concept of Law

“ Professor H.L.A Hart’s Concept of Law”
By Robert S. Summers

Jurisprudence is a name that is given to a particular sort of examination of the law, an

examination of a theoretical, general, and hypothetical nature which tries to expose the
fundamental standards of law and overall sets of laws.

The word ‘jurisprudence’ is derived from the Latin word ‘jurisprudentia’ which signifies
‘information on law’. ‘Juris’ signifies law and ‘prudentia’ signifies expertise or information.
Consequently, jurisprudence implies information on the law and its application. Jurisprudence is
the investigation of major lawful standards. Various law specialists have given various meanings
of the term jurisprudence according to follows:-

 According to Salmond, jurisprudence is the ‘Study of the primary standards of the

common law’.
 According to Austin, jurisprudence is the ‘Reasoning of positive law’, and so on
 Sir Herbert Lionel Adolphus Hart (H.L.A.Hart) is a persuasive legitimate educator. Hart
altered the techniques for jurisprudence and the way of thinking of law. He composed
‘The Concept of Law’ and made significant commitments to the political way of
thinking. He is viewed as the main contemporary delegate of British positivism. From his
book, it shows that he was a phonetic, scholar, lawyer, and legal adviser.
 As per Hart, the law is an arrangement of rules. As per Hart: “Where there is law, the
human direct non-discretionary or mandatory.” Thus thought of commitment is at the
centre of a Rule. Rules of commitment are upheld by extraordinary prevailing difficulties
since they are felt important to keep up the general public. To Hart, the idea of law is
comparable to the overall set of laws. Hart referenced that rules of law fall into various
intelligent classifications that have unmistakable legitimate and social capacities. He
recognized essential standards from auxiliary guidelines or obligation forcing rules from
power giving principle.

Hart’s Concept of Law:

 Professor Hart conceives law as a social phenomenon: It can only be understood and
explained by reference to the actual social practices of the community.
 For a human society to survive as a collectivity, certain rules must exist for the protection
of persons and property and also for ensuring that promises are kept.
 Hart’s theory thus focuses on “rules”. For him, law is a system of rules.

TYPES OF RULES
  PRIMARY RULES:
 Primary Rules are those rules which force ‘obligation on a citizen like criminal laws,
misdeed, and so on. Primary rules advise individuals to get things done, or not to get
things done.
 Primary rules are ‘obligation forcing rules. They force certain particular obligations on
the residents of the state to act in a specific way, or they might be dependent upon certain
legitimate approvals. Hart portrays Primary rules as “fundamental rules.” They mention
to the resident what one should or shouldn’t do under the law. They set down obligations.
These rules are to do with actual issues.

 SECONDARY RULES:
 Secondary rules are one which let individuals, by doing certain things. Present new rules
of the principal kind, or adjust them. They give individuals (private people or public
bodies) the ability to present or change the main sort of rule.
 Secondary rules are not obligation forcing rules. They are what Hart calls power-
presenting rules. Auxiliary rules are those rules which affirm powers like Contract,
Marriage, Will, Delegated Legislation – the ability to make law.

Secondary rules have been isolated into three types, these are as per the following:

 RULE OF ADJUDICATION
 It essentially addresses those rules, which give an immediate ability to arbitrate the matter
in question, for example, Article 32, which enables the Supreme Court to give right writ:
Article 131, 132, 134, 133 that enable the Supreme Court the first and Appellate purview.
Article 323A and 323 B engage courts to mediate the issue in question. Each one of those
articles in the Constitution is power presenting. They empower a court to choose a
specific debate.
 Hart views courts as creatures of law, and sometimes appears to suggest that the
institution of a court can be reduced to secondary rules of adjudication specifying
qualifications for judges, conferring jurisdiction, prescribing procedure, etc.
 Cure the defects of uncertainty and inefficiency that result from the absence of an
authoritative mechanism for resolving doubts about the applicability of rules.

 RULE OF CHANGE
 Law-production power is to be joined by adjustment when a skilful authoritative body
inferred its ability to make law ought to have the ability to change the law. This force is
important to influence any sort of warning, for example, Article 368 offers the capacity to
Parliament to change the Constitution and system thereof. In this way, it enables the
revision of the Constitution. This force incorporates the ability to revoke and eliminate
challenges. It is similarly relevant to designated enactment.
 RULES OF RECOGNITION
• This standard is the most vital and essential guideline of Secondary rules. It is that
standard that perceives different rules. The standard of Recognition is the basis of the
presence and legitimacy of the standard of the overall set of laws.
• Hart accepts that the standard of Recognition is the most significant. The standard of
Recognition reveals to us how to distinguish a law in the advanced framework with
different wellsprings of law like a composed constitution, administrative authorizations,
and legal points of reference, the rules of Recognition can be very unpredictable and
require a chain of command where a few kinds of rules overrule others Hart holds this out
for the solution for vulnerability.
• He uses only the notion of a "primary rule" to elucidate the concept of obligation. He
uses only the notion of a "rule of recognition" to elucidate the concept of legal validity. In
fact, he does not use a combination of primary and secondary rules to elucidate any
specific concepts.
• Kelsen likewise discussed Recognition, for example, legitimacy and presence of
standards are perceived by the fundamental structure. Here we can see the comparability
between Hart and Kelsen on the point or rule of acknowledgement and Ground standard.
In any case, Kelsen’s fundamental standard is Sui Generis, which needs to satisfy the trial
of least adequacy; yet in Hart’s Rule of Recognition to an overall set of laws, to
adequately enable, it needs to give two least tests or to satisfy two conditions on the
foundation of which an overall set of laws could successfully be implemented.

NOTE:
 Under primary rules, human beings are required to do or abstain from certain actions;
secondary rules are in a sense parasitic upon or secondary to the first. The primary rules
bind people whether they like or not, wish or not; secondary rules bestow facilities upon
them for realizing their wishes. Primary rules are essential for social life whereas
secondary rules are necessary for the development of a legal system.

 His first "necessary condition" for the existence of a legal system is that the citizens must
generally obey the primary rules of obligation that are valid according to the system's
ultimate criteria of validity. In contrast to what is required for the existence of a simple
regime of primary rules, however, it is not necessary that the citizenry consciously view
such primary rules as common standards of behavior, violations of which are to be
criticized. Here the citizenry need not take an "internal point of view." It is enough if they
merely obey the rules and for whatever reason: fear of force, calculations of self interest,
an unreflecting inherited attitude, etc.

 It is not enough, however, for the officials of the system merely to "obey" the secondary
rules, for whatever reason. They must take an inner view of these rules, and here, in this
relationship, we encounter Professor Hart's second "necessary condition" for the
existence of a legal system. If the officials of the system identified and used the
 secondary rules solely because of a fear, for example, that they would be punished if they
did not, the system would not be an existing legal system even though the citizenry
generally obeyed the primary rules of obligation. Official compliance with the rules must
be the result of (1) a conscious acceptance of these rules as common standards of official
behavior, and (2) a conscious desire to comply with these standards as such.

 Thus, to determine whether a legal system exists, we must inquire whether the primary
rules of the system are generally obeyed and we must inquire whether (1) the officials
recognize the secondary rules as such and (2) recognize such rules for the right reason.

 Hart was criticized by Professor Ronald Dworkin for calling the legal system a system of
rules and pointed out that the legal system does not comprise only rules but it consists of
principles also. Sometimes these principles are more important than rules, for example,
the Principle of Natural Justice.

 The judiciary positively incorporates the Principle of Natural Justice. If rules and
principles come into conflict then principles get an overriding effect overrules. Hart also
failed to provide a true character of law but his contribution is noteworthy as a bridge-
builder of natural law to positivism through the semi-sociological school of law. Prof.
Hart was active in promoting democratic socialism and other democratic causes for the
left to the prevailing political centre and advocated privacy rights for homosexuals long
before it was common to do so.

LAW AND MORALS

SIMILARITIES AND DIFFERENCES
* Similarities
1. Both have a common core of content
2. Both are believed to be essential to the maintenance of social life or some feature to it.
3. Both are generally concerned with what is to be done or not to be done

Within the community, there is general demand for conformity to both types of rules, and
such conformity ordinarily requires no special skill or intellect.

* Differences
1. The status of a rule as a legal rule is unaffected by community attitudes towards its
importance, this is not true with moral rule.
2. Moral rules are immune from deliberate change.
3. Violations of moral rules are always excusable, while violations of legal rules are not
excusable.
4. The pressure exerted to secure compliance with moral rule is unlike the pressure exerted in
support of legal rules.
5. Legal rules are identifiable, by reference to a basic rule of recognition specifying the criteria
for valid rules of legal system, while moral rules are not identifiable.

NECESSARY INTERCONNECTIONS
One who asserts that some interconnection between law and morals is logically
necessary is really only saying that, by definition, law embodies morality.
Since social control through law can function only if laws are intelligible, within the
capacity of most to obey, and generally prospective, some have argued that law has an "inner
morality" and that law and morals are therefore necessarily interconnected. To this, Professor
Hart says that "if this is what the necessary connection means, we may accept it. It is
unfortunately compatible with very great iniquity." Some have contended that because law is
"open-textured" so that judges must often make choices, and because these choices should be
impartial and reasoned, law and morals are necessarily interconnected.
Another argument that law and morals are necessarily interconnected is the argument that
"a legal system must rest on a sense of moral obligation or on the conviction of the moral value
of the system, since it does not and cannot rest on mere power of man over man."
Prof. Hart stated that so long as men wish to survive, so long as survival is possible only
through mutual association, and so long as human nature and the human condition remain
unchanged, moral and legal rules must be interconnected in the sense that they must have a
common core of content. He calls this interconnection a "naturally" necessary one.

SHOULD LAW AND MORALS BE SHARPLY DISTINGUISHED?

This issue was central to the now very well known exchange between Professor Hart and
Professor Lon Fuller. In this section, Prof. Fuller provided three arguments that law and morals
should not be sharply distinguished. First, Professor Fuller has contended that judges and
lawyers ought not to draw such a distinction, for if they do, judicial decisions will, in some cases
at least, be unenlightened.
Secondly, Professor Fuller has suggested that insistence on the distinction between the
law as it is and the law as it ought to be leads to "literal," as opposed to what might be called
"purposive," judicial interpretation of statutes. Finally, Professor Fuller has also contended that
law is more likely to become good law, if, instead of distinguishing between the law as it is and
the law as it ought to become, we look upon law as in a process of "becoming," working "itself
pure from case to case."
Prof. Hart also provided arguments that support his view that law and morals should be
sharply distinguished. First, Professor Hart argues that if law and morality are not sharply
distinguished, existing law might supplant morality as a final test of conduct and thereby escape
criticism. Secondly, Professor Hart argues that insistence on the distinction between law and
morals tends as a matter of fact to preserve order. Thirdly, Professor Hart argues that citizens
will be more likely to recognize their duty not to obey morally iniquitous laws if they distinguish
sharply between law and morals than if they do not. This is because, in Professor Hart's view, the
sense that the official certification of something as lawful does not entail a duty to obey is
"surely more likely to be kept alive among those who are accustomed to think that rules of law
may be iniquitous, than among those who think that nothing iniquitous can anywhere have the
status of law." Professor Hart's fourth and final argument is that unless our concept of law
"allows the invalidity of law to be distinguished from its immorality," citizens, judges, and
lawyers may oversimplify or obscure the issues at stake in particular cases.
Prof. Hart only argues that insistence in such cases on the distinction between law and
morals assures a more forthright analysis and enhances the likelihood that all possible interests
will be considered. The question whether an interest is worthy or unworthy can arise only after
that interest has been identified.

JUSTICE
Professor Hart analyzes "just" and "unjust" as these terms are used both in appraisals of
the content of laws and in appraisals of the administration of laws. For him, to say that a law is
justly administered is to say that it is impartially applied to all those and only "those who are
alike in the relevant respect marked out by the law itself." Laws themselves may be unjust either
because they do not distribute burdens or benefits fairly or because they do not afford
compensation for harm done by others.
Professor Hart argues that one leading principle explains these diverse applications of the "idea
of justice": the principle "Treat like cases alike and different cases differently." He adds that the
criteria of what constitutes like cases will often vary with the moral outlook of a given person or
society.
Finally, the point should be made that there may be no single principle that explains the
diverse applications of "just" and "unjust." The drive to find such a principle is illustrative of the
influence of the reductionist impulse in legal philosophy. We shall probably find that justice
cannot be reduced to a single principle.

PROF. HART'S METHODS OF ANALYSIS

A. Language and Reality
One of the most significant single influences on Professor Hart's way of doing legal
philosophy is the doctrine that a "sharpened awareness of words can be used to sharpen our
perception of phenomena."

B. Rules
The notion of a rule has always played a central role in the thought of lawyers. For
example, lawyers find, construct, interpret, apply, compare, evaluate, draft, negotiate, and
advocate rules. For the legal philosopher, then, the notion of a rule has always been a tool close
at hand.
C. Sentence Classification
There are many kinds of sentences and many uses to which a sentence can be put. Among
the important contributions of the late J. L. Austin to contemporary philosophy was his
"discovery" of sentences that are "performatory" and therefore more like actions than like
descriptions. Professor Hart has also identified a class of sentences, e.g., "He did it.", "They did
it.", etc. that he has called "ascriptive" rather than descriptive, and which, he says, function as
ascriptions of responsibility for action rather than as descriptions of such action.

D. Methods of Definition
Many legal philosophers have sought answers to questions of the "What is X? form.
Professor Hart has argued that to put such questions is a mistake. Questions of this form are too
imprecise; they do not indicate what it is that we want to know about X. Secondly, this way of
putting such questions has tended to suggest answers in terms of an irrelevant mode of
definition: the method of defining per genus et differentia.
Finally, Professor Hart has observed that this method can be usefully applied only if
instances of the application of the term to be defined have common characteristics, and this is not
true of terms such as "right," "justice," and "legal system." One of the methods Professor Hart
has applied to elucidate fundamental legal concepts might be called contextual definition.
According to this method, one attempts to identify the conditions under which statements in
which such concepts have their characteristic use are true.

E. General Terms and Common Qualities

Of profound importance for the analysis of fundamental legal concepts (and others) is the
discovery that there may be several reasons why a general term is used for varying phenomena
other than or in addition to the fact that these phenomena have common qualities.
Professor Hart has suggested that an awareness of the fact that instances of the use of a
general term may be linked in ways other than through common qualities is likely to be valuable
to the legal philosopher in either or both of two ways.

F. Meaning and Criteria for Use

The distinction between the meaning of a term and the criteria for its use is a
methodological distinction unfamiliar to lawyers but common in contemporary English
philosophy. Professor Hart has contended that this distinction between meaning and criteria can
be profitably used in analyzing "legal system."

G. Standard and Borderline Cases

Professor Hart has shown that for such concepts we can ordinarily establish standard and
borderline cases of their use. The next step is to identify the features of the standard case, and the
final step is to "examine the various motives that may incline us one way or the other in dealing
with the borderline case."
H. Models
The use of models is commonplace in contemporary English philosophy, and Professor
Hart uses them for various purposes. For example, he contrasts his view of law with a model of
law as "coercive order."

I. Logical Necessity
For lawyers, an explanation of Professor Hart's methodology should include some
account of the way he uses "logical," "follows logically," and allied phrases. Lawyers ordinarily
use the term "logical" and allied notions to mean "sound" or "reasonable."

J. Game Analogies
Professor Hart has made extensive use of game analogies, inasmuch as life under law and
the playing of games are analogous precisely in the respect that in both we follow and use rules
in a variety of ways.
Thus, there are rules of a game which veto certain types of conduct under penalty (foul
play or abuse of the referee) and rules which specify what must be done to score or to win.
Likewise, in law there are rules which forbid conduct under penalty and rules which prescribe
what must be done to achieve a given result, e.g., creation of a valid will or an enforceable
contract.