The Concept of Law: Preface

The Concept of Law is a very important book, in fact, the Editors’ note of this book explains why: ‘The Concept of Law transformed the way jurisprudence was understood and studied in the English-speaking world and beyond.’ Thus, if you understand this book or some some sections of this well, there is a very great possibility of your succeeding in the Section A of the exam. So lets begin the summary of the preface: 

What is essential for a student of Jurisprudence and Legal Studies is to remember that the preface of Hart’s book holds within it all the important elements of his book that are discussed in the succeeding chapters 1-10. Without a proper understanding of the preface, the understanding of the succeeding chapters is thus incomplete. Also, from an examiner’s point of view, drawing references from the preface gets you good marks as it shows your analytical skills.

So beginning with the preface, lets discuss Hart’s aims gradually (I will be numbering the aims for clarification purposes only but please note that the aims are not numbered in his book, nor is there a claim for any hierarchy, so please feel free to disconnect them from one another. However, a very important point to remember is that you should, in your answers draw connections with whatever aims can be relevant then, for instance, when you attempt a question on Hart vs. Austin, please add in the first aim related to law and coercion in it).

Aim #1: One of the aim’s of Hart’s is to show that law, coercion and morality are separate but related. This is one of the most essential of his aims as it discusses the nature of words and how relevant it is for a student of jurisprudence to understand that each word comes with its own limitations. Now lets just breakdown this aim into two separate parts:

a) Law and coercion: Austin as the predecessor of Hart’s asserts in his Command theory of Law that sanctions are an important element of his theory. Thus emphasizing on the importance of using coercion as a biding force to establish a coherent legal system. Hart on the other hand emphasis in chapters 2-4 that coercion is not synonymous to law and that both are related but separate. Hart does not see the legal system as one that is built on an edifice of sanctions, rather one that is internalized as well.

preface

Illustration A demonstrates what law is for Austin. What is primarily understood from Austin’s work is that he assimilates law and coercion. Thus, according to Austin, law and coercion are two sides of the same coin, and this illustration helps clarify his position. Therefore, the intersection of law and coercion is essential for Austin. Illustration B demonstrates what law is for Hart. As in his preface he clearly asserts that law and coercion are separate, although related, we will see that in chapters 2-4 of his book he tirelessly asserts this claim, and negates Austin’s assimilation of these two terms.

b)  Law and morality: Like all other legal positivists, Hart also asserts that Natural lawyers blur the distinction between law and morality. Thus he asserts that law and morality are not synonymous and that they are ‘separate but related.’ However, it is an interesting observation that Hart has been labelled as a ‘soft positivist’ and it is for this reason that he does in one of his chapters assert another claim, one that says that there is a bare minimum content of morality in law.

Aim #2: Another one of his aims is that his book caters to students of various fields. As he claims that it is ‘suitable for students interested in moral and political philosophy as well as sociology.’ Thus in his book a student of jurisprudence and legal theory comes across a variety of topics that help in understanding the edifice on not only which the law stands but functions as well.  And these point will be clarified with further reading his book.

Aim #3:  Another important aspect of the preface is where Hart discuses the nature of the underlying theme of his work. He says: “The lawyer will regard the book as an essay in analytical jurisprudence, for it is concerned with the clarification of the general framework of legal thought, rather than with the criticism of law or legal policy.”

What this means is that Hart puts forward the claim for an analytical jurisprudence: simply speaking, analytical jurisprudence comes from the root word analysis. Which in this context means to retrace steps backwards to understand a given idea. Hart is a proponent of analytical jurisprudence by use of which he delves into the meaning of law and its structure from an objective view point, thereby rejecting any standards which take detours into explaining what law can be (example morality). Hence accordingly, his work is ‘concerned with the clarification of the general framework of legal thought’ and the second limb of this aim states that his work is not concerned with ‘the criticism of law or legal policy.’ Thus, even where he does dedicate for instance, one third of his book in the criticism of Austin’s legal theory, it will be seen later that that criticism is merely where Hart provides the mechanism for the clarification of a proper legal system, thereby building on the incomplete blocks of Austin’s work. In essence, concerning himself with the clarification of the general framework of legal thought.

Aim #4: Hart was greatly influenced by Ludwig Wittgenstein, a philosopher who concerned himself with language and the greater meaning of words. Hart does emphasize a great deal on the use of words and criticizes Austin’s work on the same grounds. Hart’s work is also called as an essay in descriptive sociology as it inquires into the meaning of words, and Hart further emphasizes that ‘in this field of study it is particularly true that we may use, as Professor J. L. Austin (this is not Hart’s predecessor who laid down the command theory of law, rather this is another philosopher who focused on language as well) said, ‘a sharpened awareness of words to sharpen our perception of the phenomena’. And thus, Hart thus, greatly emphasizes upon the subtle meanings of words he uses in his book. ‘I have raised questions which may well be said to be about the meanings of words.’And the questions he raises about the subtle meanings of words can be seen through the following examples he lays down in the preface (which will be explained in detail below):

  1. how ‘being obliged’ differs from ‘having an obligation’
  2. how the statement that a rule is a valid rule of law differs from a prediction of the behaviour of officials;
  3. what is meant by the assertion that a social group observes a rule and how this differs from and resembles the assertion that its members habitually do certain things
  1. how ‘being obliged’ differs from ‘having an obligation’: here lies the comparison between what Austin and Hart use in terms of showing the degree of obligation. This is an important distinction, so here we go- ‘being obliged‘is a term used by Austin where he talks about the bulk of the population’s obligation to the sovereign. But Hart interjects and reminds us that where ‘being obliged’ is used, then we are talking about ‘forced/coerced’ obligation. Thus Hart borrows a term from another legal positivist- Kelsen and says that this situation of being coerced resembles very much to ‘the gunman situation‘ (the gunman situation is also referred to one of his chapters where he discusses in detail what this term entails). Now Hart labels Austin’s theory as ‘gunman situation writ large’, for the sole purpose of its emphasis on coercion being the integral part of law (please connect this aim with Aim#1 (a) discussed above, where law and coercion are discussed). Hart then compares the term ‘being obliged’ to a gunman situation where a gunman barges into a bank and orders the teller to hand over the money or else she will be shot. If the teller complies with this order of the gunman, she is said to ‘being obliged’ to the gunman. Since much of Austin’s work is based on the use of sanctions, thereby asserting the use of coercion, Hart classifies the meaning of an obligation with the use of coercion when it comes to defining the parameters of the Austin’s theory. In its place, (and here please focus on the subtle differences between the use of words) Hart says that ‘having an obligation’ is the term that denotes the example of obligations within a legal system. And here he gives the example of the tax inspector, who under law has an obligation to collect tax. There are many other examples within this domain, where the law creates obligations and the officials as well as the people in general are have an obligation to follow the law. In essence, where on the one hand Austin uses the words ‘being obliged’ , Hart says that the appropriate usage of words are ‘having an obligation’ as the former only points to extreme situations where coercion is used as a tool to regulate obligations withing a legal system.
  2. ‘how the statement that a rule is a valid rule of law differs from a prediction of the behaviour of officials’: here again we are going to retrace our steps and try and understand Hart’s assertion of Austin’s theory. According to Hart, Austin’s theory is predictive in nature. Lets elucidate; if a person does not follow a rule A then B occurs in the form of a sanction, in essence, every negation of a rule attached with it a sanction. Since Austin emphasizes in great detail about sanctions (see Aim#1 a) and their important position within the legal system, Hart claims that predictions don’t establish the character of valid rules. For they are bereft of a very important element crucial in a legal system and that is the internal point of view. Hart would further in chapter 2-4 assert the fallacy of the predictive nature of a legal system and illustrates it by way of a closed room. So for instance a person finds herself in a closed room with no one supervising her and no one to see what she’s doing, she is likely to break the rules as the predictive behavior of the officials will fail. In short, if a person is unsupervised and believed in only the degree of sanctions contingent upon how the officials see her breaking the rule, she is most likely to break the rule when she finds herself in a situation where no one is watching her. Similarly, when you find yourself in a predictive environment but there is no one watching you, would you steal the small book in a bookshop, or would you refuse to stop by a red light when the roads are clear and no one is watching? Here Hart is asserting that a legal system is operative when you couple both the internal and the external point of views. And he claims that since Austin’s theory of law is predictive in nature, it is likely to be more external in nature, thereby losing the important ingredient of a legal system where people are likely to stop by a red light on the roads when no one is watching as they have internalized the legal system as well.
  3. ‘what is meant by the assertion that a social group observes a rule and how this differs from and resembles the assertion that its members habitually do certain things’: to understand this point, we have to take a detour to Austin’s work. According to Austin’s Command theory of law, ‘The “sovereign” is defined as a person (or determinate body of persons) who receives habitual obedience from the bulk of the population.’ Now Hart finds a problem with the term ‘habitual obedience’. To understand this, lets begin with a simple question: What is a habit? The English dictionary defines it as ‘a settled or regular tendency or practice, especially one that is hard to give up.’ Now the other question, is a habit similar to rule following, or in other words, when we follow a rule is it equivalent to being called habitual obedience? Hart begs to differ and in chapter 4 gives his case for the changing of the sovereigns thereby challenging the persistent nature of laws. To summarize what he says is, lets just say that Sovereign A is succeeded by Sovereign B. If the bulk of the population in Austin’s theory was in habitual obedience of Sovereign A, how can they overnight habitually obey Sovereign B? Or in simpler terms, since habits take time to develop, Sovereign B would still herself be habitually following the Sovereign A, wouldn’t she? How can habitual obedience explain the persistence of laws when the new Sovereign takes over?

Aim #5: Understanding both the internal and external points of view; as Hart says in the preface: ‘Indeed, one of the central themes of the book is that neither law nor any other
form of social structure can be understood without an appreciation of certain crucial distinctions between two different kinds of statement, which I have called ‘internal’ and ‘external’ and which can both be made whenever social rules are observed’ (Please note the similarities between this aim and the Aim #4 part 2).  For Hart, it is essential that officials of a legal system take an internal point of view towards rules, that is – ‘internalize’ them as well as having taken an external point of view as well- where a person observes the operation of the rules. For Hart, a legal system is based on the assimilation of these two types of point of views. Whereas since Austin’s theory of law is standing on the mere idea of habitual obedience as well as predictions (as discussed above which mean that if rules are defied, sanctions will follow and it can clearly be predicted), it is said to attach with itself the external point of view alone, as the internalizing of the rules or the internal point of view is clearly missing in Austin’s theory. In The Concept of Law, the internal and external points of view are explained thus:

External and Internal Point of view

A representation of both the external and the internal points of views in the Concept of Law.

With theses aims, I conclude the preface. Please note that these aims will be further explained throughout The Concept of Law. If you have any questions or confusions, please don’t hesitate to comment below and i’ll try my best to get back to you.

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About MaryamAkram

Maryam Akram is a law graduate of University of London and an adjunct faculty member of Pakistan College of Law teaching the subject of Jurisprudence and Legal Theory. Apart from her academic responsibilities, she aspires to be a professional street photographer. An easy going person who loves to laugh and make other people smile as well. She loves eating ice cream. Her philosophy of life can be summed up in three words "Eat (preferably ice cream), pray, love."

One comment

  1. Thank you so much for writing these notes out!

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