hart
1. What is law?
a. A union of primary and secondary rules:
i. Primary rules require human beings to do or abstain from certain
actions, regardless of whether they wish to or not (hence they are
content-independent reasons for action). They impose duties.
ii. Secondary rules allow human brings to introduce new primary rules or
extinguish or modify old ones (rules of change), and specify some
features of a primary rule that indicates that it is supported by the
social pressure it exerts (rule of recognition), or to otherwise
determine their incidence or control (rules of adjudication)
1. Rules of recognition remedy the problem of uncertainty, rules
of change remedy the problem of the static quality of primarily
rules, and rules of adjudication remedy the problem of the
inefficiency of rules
2. The absence of secondary rules from primitive societies is
exactly why they lacked full fledged legal systems: Their body
of only primary rules was uncertain, static, and inefficient
iii. In short, “[Where] a secondary rule of recognition is accepted and
used for the identification of primary rules of obligation… this
situation …deserves, if anything does, to be called the foundations of
a legal system.”
2. The characteristics of legal rules
a. They purport to serve as evaluative standards: “there should be a critical
reflective attitude to certain patterns of behavior as a common standard, and
that this should display itself in criticism (including self-criticism), demands
for conformity, and in acknowledgements that such criticisms and demands
are justified, all of which find their characteristic expression in the
normative terminology of ‘ought’, ‘must’, and ‘should’, ‘right’ and
‘wrong’.”
b. They are open-textured: “rules will have what has been termed an open
texture. So far we have presented this, in the case of legislation, as a general
feature of human language; uncertainty at the borderline is the price to be
paid for the use of general classifying terms in any form of communication
concerning matters of fact. Natural languages like English are when so used
irreducibly open-textured.” Hence “all rules have a penumbra of uncertainty
where the judge must choose between alternatives.”
c. They impose obligations via social pressure: “Rules are conceived and
spoken of as imposing obligations when the general demand for conformity
6
is insistent and the social pressure brought to bear upon those who deviate or
threaten to deviate is great.”
3. The sufficient conditions for the presence of a legal system
a. That citizens obey the law: “They may obey each ‘for his part only’ and
from any motive whatever; though in a healthy society they will in fact often
accept these rules as common standards of behavior and acknowledge an
obligation to obey them.”
b. That public officials accept laws as evaluative standards: “They must regard
these as common standards of official behavior and appraise critically their
own and each other’s deviations as lapses.”
4. Legal positivism vs. natural law
a. In legal positivism laws need not satisfy the demands of morality: “we shall
take Legal Positivism to mean the simple contention that it is in no sense a
necessary truth that laws reproduce or satisfy certain demands of morality,
though in fact they have often done so.”
b. In natural law, laws must conform to certain principles of human conduct: It
argues that “here are certain principles of human conduct, awaiting
discovery by human reason, with which man-made law must conform if it is
to be valid.”
5. The distinctions between morality and law
a. Laws are often less important than morals: “In contrast with morals [...]
some, though not all, rules of law, occupy a relatively low place in the scale
of serious importance. They may be tiresome to follow, but they do not
demand great sacrifice”
b. Laws can be changed by deliberate enactment: “By contrast moral rules or
principles cannot be brought into being or changed or eliminated in this
way”
c. Legal responsibility cannot be evaded by an inability to act: “by contrast, in
morals ‘I could not help it’ is always an excuse, and moral obligation would
be altogether different from what it is if the moral ‘ought’ did not in this
sense imply ‘can’.”
d. Laws are exerted by threats or appeals to interest: Whereas moral pressure is
exerted “by reminders of the moral character of the action contemplated of
the demands of morality.”
6. The minimum content of natural law
a. Despite the distinctions between law and morality, there is likely to be some
degree of overlap between natural law and man-made legal systems. The
minimum content of natural law specifies the components of most legal
systems necessary for human beings to survive:
i. Prohibitions against violence or inflicting bodily harm (due to the
vulnerability of men)
ii. A minimal amount of property rights (due to the scarcity of resources)
7
iii. Sanctions against non-compliance (due to limited human
understanding/willpower to follow law)
iv. Provisions for compromise and exchange (due to the approximate
equality of men)
v. Provisions for mutual forbearances (due to the limited altruism of
man)
