H. L. A.

HART (NOVEMBER 2023)

Prof John Strawson

Lecture Plus Video Transcript

Welcome to this lecture on Herbert Lionel Adolphus Hart (H. L. A. Hart) and his work. This
is part of the Lecture Plus series of the University of London International Laws
Programme designed for the Jurisprudence Course. Hart, who we turn to today is perhaps
the most dominant writer in English language in jurisprudence in the 20th century. His
work, Concept of Law, which is now well established as perhaps a key reference is not
only a work in which he set out to explain the scope of law and of legal theory and legal
practice, but also became a reference in which many other theorists took as a starting
point to develop their own views of what law was and was not.
If one thinks that amongst Hart's students were Dworkin, Finnis, Raz, MacCormick, and
Twining, one can immediately see that many of the people that you have been reading on
this course were also connected to Hart. H. L. A. Hart was born in 1907 in the north of
England. His parents were immigrants from Poland and Germany. He began his
professional life as a lawyer practising at the bar. His academic work only began after the
Second World War, by which time not only had he practised at the bar, but he also had
worked for the intelligence, the internal intelligence organisation, MI5 during the Second
World War.
His academic career began as a tutor in philosophy and in 1952 he was elected to the
Chair of Jurisprudence at Oxford. This prestigious chair had been held by many people
and immediately Hart set out to think about what was the scope of a Professor of
Jurisprudence, what was the scope of law? He says that he set out to write Concept of
Law, which is indeed based on lectures he gave during the 1950s, as a way of trying to
explain to undergraduate students what law was.
For you, thinking about the work of H. L. A. Hart, may find it useful to reflect on the courses
which you have done, and the areas of law that you have studied, and the way in which
you have studied it because what Hart is trying to do is to clarify for you what the process
of law is. He begins with a very important question, a question which often current legal
theorists don't seem to begin with, which is, what is law?
You have to remember that he is thinking about the question of law in the context of the
1950s. Concept of Law was published in 1961 eventually because the 1950s was a time of
important change, particularly in Britain and indeed around the world. It was in the wake of
the Second World War. Britain was undergoing a radical transformation at the end of the
war with a fairly radical internal government, British colonies were becoming independent.
Britain was changing. Social attitudes, particularly to women, were beginning to change,
issues to do with immigration and race were also becoming prominent in Britain.
Hart was writing against a very big period of change, and in asking the question, what is
law, he points out that this is a question which jurists have asked from time immemorial,
from classical Greek philosophers right through to the present day. He takes a couple of

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definitions of law, which he says are persistent problems, persistent questions. He takes,
for instance, two definitions. One, a well-known one from the American realist Karl
Llewellyn, who in his Bramble Bush says, "Law is what officials do about disputes. That is
what the law is." Also, he quotes Oliver Wendell Holmes, the United States Supreme Court
judge, who says that, "Law is predicting what courts will do."
Hart is dissatisfied with those answers, which he says really doesn't tell us what it is that
laws do because what is it that officials are doing that's different about law as opposed to
other questions, such as administration or politics? What's the difference about law?
Surely, it can't be just a question of predicting what courts do because the question is, on
what basis are the courts acting? Courts are surely looking at law in order to make a
decision. Therefore, that also doesn't really answer the question.
As many theorists do, Hart decides to take those seminal lectures by John Austin, The
Province of Jurisprudence Determined, which he gave in his inaugural phase as the
Professor of Jurisprudence at University College London in the 1830s, and which were
eventually published as a book. Austin, famously takes a view that law can be defined in a
fairly simple, and for Hart, one-dimensional way. That law is essentially the commands of
the Sovereign, and the commands of the Sovereign are directed towards a particular
community, which is in the habit of obeying that Sovereign.
This beginning point for the understanding of law raises also quite important questions.
How does the Sovereign become the Sovereign? How do we know the Sovereign has
legal authority? Why would a community be in a habit of obedience? How does this
community acquire the habit of obedience? What do we mean by the habit of obedience?
Is law therefore entirely concerned with the question of power?
In setting out his reason for writing the book, Hart says, I'm going to look at three issues,
law, coercion, and morality, and the relationship between the three. The critical question
that he begins with, therefore is, is law fundamentally about coercion, which is how he
sees the way in which Austin approaches the question of law. Famously, Hart looks at this
idea of this imperative theory, and says, "Is this like a gunman pointing a gun at you and
saying, 'hand over the money,' in a bank, for instance."
Here, Hart makes that very important distinction between being obliged to do something
because someone is forcing you to do it and being under an obligation. If you get a letter,
he suggests, from the tax office saying that you owe tax, you might not like to pay it, but
you feel under an obligation to do so because it comes from a lawful authority. Hart is
interested in those, what he calls, "puzzling questions". Why do people feel a sense of
obligation? Why do people pay their tax? How does that process work?
If you begin to think about the way in which law operates, it doesn't really operate only on
the question of coercion. Now, there are areas of law in which coercion is quite central.
Criminal law, for example. As when you study criminal law, you are studying a particular
regime in which it is not optional whether you abide by the law or not, and if there is an
infringement, the legal system operates a way to coerce people to either be brought to a
court, be sent to prison, be fined, in other words, be sanctioned because here is a high
level of coercion.
You could say in some other areas of law, there is also a degree of coercion, perhaps in
certain parts of constitutional law, for example. In many areas of law, as Hart points out,

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the idea of the commands of the sovereign being habitually obeyed doesn't seem to work
out. I'm sure if you think about the courses which you have taken in your degree so far,
you'll recognise this. You haven't merely been looking at criminal law or constitutional law,
but you've also been looking at contracts, torts, land law, equity, and trusts, and do these
subjects operate on the basis of coercion.
Deciding that you want to make a will, or a contract, or enter a marriage, for example, in
family law is surely a question of voluntary decision. You are not coerced to do so. All the
law does is it operates in such a way as it provides you with authoritative ways of making
sure that the transfer of land, the contract you enter into, the marriage you enter into is
going to be valid.
You follow a series of rules about the creation of a contract, intention to create legal
relations, for example, offer and acceptance and consideration, and providing those
elements are within the text that you call a contract, it will prima facie be a valid contract.
Very difficult to describe those processes as being the result of coercion or the results of a
command. They are rules that you follow.
As we know, Hart famously described law as a union of primary and secondary rules. It's
very important to stress the union. This is not just primary rules on one hand and
secondary rules on the other, but it is the union between them that's critical. Hart says that
there are primary rules. These are rules which impose duties. Then there are secondary
rules, which are power conferring rules. He suggests that all societies have duty imposing
rules.
At the time in the 1950s when he was writing this book, there was a great interest in legal
anthropology. This had begun really in the 1920s and '30s in the United States, where Karl
Llewellyn and E. Adamson Hoebel had done a great deal of work on First Nation American
legal systems. There was a great debate, not only about how those systems operated, but
also in the context of colonialism large studies have been undertaken of colonial systems,
customary systems of law, particularly in Africa and parts of Asia, which were said to be at
the time, in the language of the time, primitive law, meaning that they were composed
mainly of duty imposing rules.
Hart, in a sense, is referring to this debate on anthropology when he talks about all
societies have duty imposing rules, i.e. rules about theft, or preventing murder, and
unlawful killing, about acting in good faith in relations with each other, and so on and so
forth. No society could operate, he suggests, without those types of rules, but a fully
developed legal system only begins to operate when there are power conferring rules, that
is, rules which allow the society to change the duty imposing rules. Those power
conferring rules with the duty of rules operate together in this union of primary and
secondary rules.
Primarily, what he is talking about is the emergence of legislative and executive and
judicial functions. Initially, in the sophistication of all societies, those bodies, such as, for
instance, in feudal Britain, those distinctions of the forms of the forms of government or
power conferring rules were often rolled up into one person, like the monarch, who was the
fountain of legislation, of executive power, and indeed of judicial power.
By the 19th century, we had begun to develop notions of the separation of the powers of
government. This is marked first in the American Constitution at the end of the 18th

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century, but becomes a major debate in European jurisprudence, particularly in British
jurisprudence by the middle of the 19th century, where we have this notion of a legislature,
of an executive, of judicial functions of government. These are, par excellence, the
secondary rules.
What Harts is trying to tell us is that the idea that law is the commands of the sovereign is
inadequate. Telling us that law is just about coercion is inadequate. What we need to look
is much more widely at the way in which the legal system operates, then we have to ask
questions about how it operates. Here, he introduces the idea that at the top of the system
are rules of recognition. He says, of course, about in the British context. Though I have to
say in the book, he refers mostly to England, but I will talk about the British context.
In the British context, the ultimate rule of recognition is that the Queen, or the King, I
should say, the King-in-Parliament is sovereign. What we mean by that is that the way in
which the primary rules can be changed is essentially through parliament. The notion of
parliamentary sovereignty means that anything that parliament enacts becomes the law,
and that becomes the raw material which the courts have to interpret and to apply in any
given situation. Here's the ultimate rule of recognition. Underneath that, there are other
rules which tell us how the system operates. Adjudication, the role of the courts.
Interestingly, in his postscript to this book, which is actually published many years, over 30
years after the first edition, and in two years after Hart has sadly died, in his postscript he
says he perhaps did not spend enough time looking at the question of adjudication, which I
will come back to when we look at the criticisms of Hart, particularly by Ronald Dworkin.
He says in thinking about the operation of the system, there are two things that we need to
be conscious of.
First of all, there is the sociological or social practice that we are seeing. Parliament
enacting legislation. We see it. At the same time, as we see it, and often we see it in great
pomp and ceremony, the state opening of parliament where the King reads the King's
speech of the government. The government then proceeds through the House of
Commons and the House of Lords to enact legislation that has been announced, and then
it is signed by the monarch and entered into effective law, that is a sociological process
which we are watching. Also, he suggests, this is what he calls the external point of view.
There is also an internal point of view in which all of those functionaries involved in making
this decision, members of parliament, members of the House of Lords, civil servants who
draft legislation, and indeed the monarch, all accept that this is the process which is to be
followed. The public, more generally, accept that this is what should happen, and
therefore, what is the result of the enactment of the King-in-Parliament being sovereign is
indeed an obligation, that this combination between watching the external process and
thinking about the internal process, the way in which both officials and the public accept
that they are bound by this process plays a very major role in the way in which the whole
legal system operates.
In other words, you can't just say we can observe what is taking place as an external fact,
we also have to understand that officials and citizens, by and large, feel that this is the
system which is legitimate and they feel bound to work within it, to make it operate if
they're officials, or to accept its operation if they are citizens. What he is trying to do is
therefore describe for us, and he says this is a work of description in a sense, to describe
to us how things operate.

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Now, Hart is of course well known as a positivist, as indeed was Austin. There's one thing I
think you need to think quite carefully about modern positivism in the 20th century, from
Kelsen onwards actually, who begins to write in the 1930s, but it's also very clear with Hart
writing in the 1950s and '60s, is that Hart and modern positivists are very interested in the
role of morality and its relationship to law. 19th century positivists like Austin were very
keen to make this sharp distinction about the separation of law and morals.
Hart thinks there is an important distinction between law and morals, not because he
doesn't think morality is unimportant, however, it's because he thinks morality is extremely
important. This is the perhaps salient difference between positivism of the 20th century
and that of the 19th century. Because morality is so important, it is vital that the legal
system doesn't step over the right of individuals to be able to practice their own morality.
He certainly accepts that in the primary rules, these duty-imposing rules about theft, or
murder, or acting in good faith in civil proceedings and creating contracts and so on and so
forth, that morality plays an important role.
How do we get these particular rules? One of the cases which he points to is the case of
Donoghue and Stevenson, which established tort on negligence, in which Lord Atkin very
famously develops a notion of the neighbour principle. He does so by talking about a
Christian story of the Good Samaritan, which appears in the New Testament, and actually
draws on that moral tale in order to develop a legal principle.
Now, Hart, unlike, for instance, the positivists of the 19th century is not worried about
accepting that is part of the content of law. What modern positivists, and Hart in particular,
are keen to demonstrate is that the validity of the legal system, however, does not depend
on the question of that morality. It may draw on it, but it does not depend for its validity on
a relationship to morality, and that is something which is a little distinctive, and which in
some of his pupils, or some of his students, I should say, particularly Raz, for example,
draws on extensively to develop his particular theory of perfectionist liberalism and the role
of the individual.
Hart is very suspicious of using a moral agenda in order to validate the construction of law
because he believes that to do so will totally undermine the legal system and will restrict
human freedom. That is quite interesting because Hart is writing in this period in the wake
of the Second World War. What is often forgotten is that when Hitler came to power in
1933, he said very clearly that this coming to power was to vanquish positive law, and
which was to establish a natural law, in this case a racialized law as the basis of a legal
system.
It is precisely for those reasons that Hart is suspicious of seeing any form of morality, even
a twisted form of morality, or an excellent form of morality as forming the basis of law for
the validity of it, but rather wants to argue that we have to retain a legal system which is
separate from morals precisely to allow the individual to be able to pursue their own moral
imperatives, and therefore, the law should not step in and try and interfere with that
process.
Ronald Dworkin in Law's Empire makes many criticisms of Hart. He makes a very big point
of saying that law cannot be considered as just a series of rules, and famously Dworkin
argues that part of law is legal principles. There are principles and policies as well as
decisions. Of course, in his main thesis, argues that courts always have the possibility of
finding the right answer, that even in what he calls hard cases, difficult cases, where there

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are no clear precedents, that somewhere within the legal discourse will be a principle or
policy, which a court can draw on in order to get the right answer. There will be a fit which
can be drawn from this.
The idea of rules he says is far too narrow to allow this interpretive process to take place
and that one of the problems of Hart is that by only talking about rules he ignores the
question of legal standards developed through policies and principles. Hart in his
postscript replies to this as being a misunderstanding of what a rule is. He says it is true in
the book he goes to great lengths to argue that law and rules are not always precise, that
they can be open to ambiguity, that rules also can clash with each other.
Therefore, he is not talking about a rule in a mathematical sense of, for instance, counting
in series one, where we know that if we count 1, 2, the next will have to be 3 because
we're counting in series of 1. He says legal rules don't operate like that. This leads him into
a major dispute with Dworkin over the question of judicial discretion. Now, as I said Hart
accepts in his postscript that perhaps he didn't talk enough about judicial decision making
in Concept of Law.
He does talk about it, but he says perhaps I should have taken it in greater depth. He
argues that there are cases, many cases where law is unclear. We know that, particularly
in the fast-changing technological world in which we live that we're constantly being posed
with legal questions, which come to us from the development of the technological
revolution, from developments in medicine, and from other scientific challenges.
What Hart wants to argue is that in those cases it is not possible for a judge, even of
Dworkin's ideal Judge Hercules to look back over a vast legal archive, the great novel of
law that Dworkin talks about and come up with a principle that will necessarily fit this
different situation. He says judges have to be able to use their discretion, not because they
are now legislators or replacing the legislature, but simply because law is indeterminate on
some occasions, and this indeterminacy means that there's a gap which has to be filled
and the judges have to fill it.
When deciding, for instance, on tragic cases such as conjoined twins, when deciding on
cases such as Google and Apple's attempts to gain access to people's information, this
kind of questions says Hart are new in which there are no clear precedents. Indeed,
insofar as some of those things have been discussed before, in partially they're only been
partially discussed, but not discussed in this particular way, and therefore, the judge or the
judicial panel has to exercise its discretion in order to make a decision.
Dworkin is concerned that such actions overstep the mark of judicial power and usurp the
position of the legislature, but as Hart says the judicial function having been discharged in
this way, the use of discretion is obviously limited only to these areas where there have
been no answers before. Also, if the legislature does not like the decision that the courts
have made, it's open to legislature to change it by new legislation, which would replace the
decision of the court with a new principle.
Hart is actually quite alive to the fact that industry is trying to describe a living legal system.
He is not trying to impose a rigid conception of what rules are. He accepts rules often
clash with each other. Indeed, that's why this idea of the following the commands of the
sovereign simply does not work because what courts in exercising the judicial function

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have to do is to choose between the rules for which there is no guidance, there is a sense.
It's a meta legal and above legal decision it looks like thoughtful.
For Dworkin, it'll be outside of law, but in fact, judges are constantly evaluating not right
from wrong but strong legal cases which are argued in front of particularly the appellate
courts for which they have to choose a different the right interpretation. That process says
Hart is not just a question of reaching back into the past and finding the right archive
principle, but actually is making a decision in this new situation that you face. Hart is trying
to describe to us the way in which the law operates and which legal practice operates. He
is trying to be very practical in this.
Now, another criticism which has been made by Roger Cotterell is that Hart
underestimates the relationship between law and power and there is some strength to this
argument that in bending the stick away from the commandist or imperative theories of
Austin, it might be said that Hart, perhaps to some extent, overestimates the non-coercive
areas of law. Indeed, there are many theorists who are particularly positive theorists from
the 18th and 19th century, who would certainly argue that law fundamentally is about
power. There are also legal theorists who follow Marx, who would probably say the same,
that law is about power.
However, what's quite interesting even those like Engels who say you write quite a lot
about the question of law, Engels famously said that law was only in its last analysis about
what he described "armed bodies of men" i.e. power in its last analysis. Perhaps, one of
the most strong legal theories, which argues about law and power, Marxism, even it
doesn't quite capture. Power relationships do not quite capture how law operates.
I think that's basically the aim of Hart is to get us to see the multifaceted ways in which law
operates to think clearly and carefully about the differences between coercion and non-
coercive areas of law and to try to puzzle out these questions of how do we know where
the boundaries of law are. I'm often asked what should you read, what a student should
read on Hart, I have to say the best thing you can read is Hart. Hart's Concept of Law is
actually written in an extremely clear and actually, mostly accessible way.
It is not written as he says on purpose with lots and lots of footnotes. There are lots of
notes at the end that you can follow up if you wanted to, but the book itself tries to give an
exposition of what the union of prime and secondary rules are using a system of linguistic
philosophy, that is, taking the meaning of words seriously trying to look at what we mean
by duty imposing, or power conferring, or the rule of recognition. or the acceptance of rules
or the internal or external points of view of law.
Trying to look at those things clearly and carefully and then trying to, as a consequence,
explain how not only municipal legal systems work. At the end of his book, the chapter
comes on international law, which Austin, in particular, had challenged as to being law not
being law at all, and where Hart tries to explain how the system of union and prime of the
union of prime and secondary rules actually does operate in relationship to international
law.
Because although there is no central legislature, there is no central executive, no central
judicial organ in one sense, although we do have the International Court of Justice at The
Hague, the principal judicial organ of the United Nations, but what he says international
comes down to is a sense of obligation, a sense of being bound. Although the world might

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look today in a very fractious state, undoubtedly most international law, most treaties are
respected, most obligations under customary international law are respected.
They could be catastrophic when those rules and principles are not being seen as
obligations, but that by and large they are and that's really the argument which Hart is
trying to offer in this last chapter. In many ways, for those of us interested in international
law, we'd like him to perhaps develop it a bit further, but it's also, I would just point out for
those of you who read it today, it was written, published in 1961. At the time, which was
the middle, right in the Cold War, what he says about the Security Council not being able
to enforce international law was absolutely true, and that's probably true today, by the way.
Certainly, in the 1990s there was an attempt for the Security Council to enforce
international law over Kuwait, over Somalia in the delivery of aid, over the question of
democracy in Haiti, which all of these things are opened to challenge some of the things
that Hart obviously could not possibly have predicted would happen when he was writing
this book in the end of the 1950s, beginning of the 1960s.
To conclude, Hart offers us, I think a very clear view of how he sees law operating. He
wants to warn us against the idea of a simplistic notion of a definition of law. He wants to
explain it's a complex process. He wants to offer us a way of, if you like, de-centring our
study of law, but he also offers you, the undergraduate student, a really good tool to reflect
on what it is that you have been studying over the past few years. That, I think, is what is
quite important. Therefore, what he's saying to you is it not that what you are doing quite a
lot of, you're reading mostly judgments probably in law reports.
In reading those judgments, you're reading stories about facts, but most importantly,
decisions that are being made. Why are they authoritative? How do you understand them?
When they articulate a rule, as he suggests, is it a rule which is so precise that we know
how that rule will operate? Or is there a penumbra around that rule, an area around that
rule, which we know will provide us with quite complex questions in thinking about how it's
applied?
That at the same time, in your studies, you have been involved in looking at obligations,
duties that have imposed upon people, substantive principles, but you're also looking at
the way in which law operates at the level of power conferring rules, the way in which
officials operate on those rules. That process of doing those two functions is primarily what
Hart is asking you to reflect on.
There are many criticisms that Hart actually makes of himself in his postscript. He is, I
think a very modest man that comes through from the postscript. I would suggest that for
those of you wanting to follow up this lecture, but do know better than perhaps begin by
reading the postscript to the second edition. Then having done that, perhaps read through
the text of the book itself. I think you will find it will pay dividends, help you not only think
about law, but also pass the examination that's coming in the summer. I wish you all the
best of luck with that. Thank you for your attention.

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