THE CONCEPTOF LAWSECOND EDITIONBYH.L.A.HARTWith a Postscript edited byPenelope A. Bulloch and Joseph RazCLARENDON PRESS · OXFORD
Oxford University Press, Walton Street, Oxford ox2 6oPOxford New YorkAthens Auckland Bangkok BombayCalcutta Cape Town Dares Salaam DelhiFlorence. Hong Kong Istanbul KarachiKuala Lumpur Madras Madrid MelbourneMexico City Nairobi Paris SingaporeTaipei Tokyo Torontoand associated companies inBerlin IbadanOxford is a trade mark of Oxford University PressPublished in the United Statesby Oxford University Press Inc., New York Oxford University Press 1961First edition published 1961Second edition published 1994(with a new Postscript)All rights reserved. No part of this publication may be reproduced,stored in a retrieval .rystem, or transmitted, in a'!)' form or by a'!)' means,without the prior permission in writing of Oxford University Press.Within the UK, exceptions are allowed in respect of a'!)' fair dealing for thepurpose of research or private stut!J, or criticism or review, as permittedunder the Copyright, Designs and Patents Act, 1988, or in the case ofreprographic reproduction in accordance with the terms of the licencesissued by the Copyright Licensing Agen0'. Enquiries concerningreproduction outside these terms and in other countries should besent to the Rights Department, Oxford University Press,at the address aboveThis book is sold subject to the condition that it shall not, by wqyof trade or otherwise, be lent, re-sold, hired out or otherwise circulatedwithout the publisher's prior consent in any form of binding or coverother than that in which it is published and without a similar conditionincluding this condition being imposed on the subsequent purchaserBritish Library Cataloguing in Publication DataData availableLibrary of Congress Cataloging in Publication DataData available0-19-8'J6I22-85 79IO86Printed in Great Britainon acidjree paper byBiddies Ltd., Guildford and King's Lynn
PREFACEMY aim in this book has been to further the understandingof law, coercion, and morality as different but related socialphenomena. Though it is primarily designed for the studentof jurisprudence, I hope it may also be of use to those whosechief interests are in moral or political philosophy, or in sociology, rather than in law. The lawyer will regard the bookas an essay in analytical jurisprudence, for it is concernedwith the clarification of the general framework oflegal thought,rather than with the criticism of law or legal policy. Moreover, at many points, I have raised questions which may wellbe said to be about the meanings of words. Thus I haveconsidered: how 'being obliged' differs from 'having an obligation'; how the statement that a rule is a valid rule of lawdiffers from a prediction of the behaviour of officials; what ismeant by the assertion that a social group observes a ruleand how this differs from and resembles the assertion that itsmembers habitually do certain things. Indeed, one of thecentral themes of the book is that neither law nor any otherform of social structure can be understood without an appreciation of certain crucial distinctions between two differentkinds of statement, which I have called 'internal' and 'external' and which can both be made whenever social rules areobserved.Notwithstanding its concern with analysis the book mayalso be regarded as an essay in descriptive sociology; for thesuggestion that inquiries into the meanings of words merelythrow light on words is false. Many important distinctions,which are not immediately obvious, between types of socialsituation or relationships may best be brought to light by anexamination of the standard uses of the relevant expressionsand of the way in which these depend on a social context,itself often left unstated. In this field of study it is particularlytrue that we may use, as Professor J. L. Austin said, 'a sharpened awareness of words to sharpen our perception of thephenomena'.
viPREFACEI am heavily and obviously indebted to other writers;indeed much of the book is concerned with the deficiencies ofa simple model of a legal system, constructed along the linesof Austin's imperative theory. But in the text the reader willfind very few references to other writers and very few footnotes. Instead, he will find at the end of the book extensivenotes designed to be read after each chapter; here the viewsexpressed in the text are related to those of my predecessorsand contemporaries, and suggestions are made as to the wayin which the argument may be further pursued in their writings. I have taken this course, partly because the argument ofthe book is a continuous one; which comparison with othertheories would interrupt. But I have also had a pedagogicaim: I hope that this arrangement may discourage the beliefthat a book on legal theory is primarily a book from whichone learns what other books contain. So long as this belief isheld by those who write, little progress will be made in thesubject; and so long as it is held by those who read, theeducational value of the subject must remain very small.I have been indebted for too long to too many friends tobe capable now of identifying all my obligations. But I havea special debt to acknowledge to Mr A. M. Honore whosedetailed criticisms exposed many confusions of thought andinfelicities of style. These I have tried to eliminate, but I fearthat much is left of which he would disapprove. I owe toconversations with Mr G. A. Paul anything of value in thepolitical philosophy of this book and in its reinterpretation ofnatural law, and I have to thank him for reading the proofs.I am also most grateful to Dr Rupert Cross and Mr P. F.Strawson, who read the text, for their beneficial advice andcriticism.H. L.A. HART
EDITORS' NOTEWITHIN a few years of its publication The Concept Of Lawtransformed the way jurisprudence was understood and studied in the English-speaking world and beyond. Its enormousimpact led to a multitude of publications discussing the bookand its doctrines, and not only in the context of legal theory,but in political and moral philosophy too.For many years Hart had it in mind to add a chapter toTlze Concept if Law. He did not wish to tinker with the textwhose influence has been so great, and in accordance with hiswishes it is here published unchanged, except for minor corrections. But he wanted to respond to the many discussionsof the book, defending his position against those who misconstrued it, refuting unfounded criticism, and-of equal importance in his eyes-conceding the force of justified criticismand suggesting ways of adjusting the book's doctrines to meetthose points. That the new chapter, first thought of as apreface, but finally as a postscript, was unfinished at the timeof his death was due only in part to his meticulous perfectionism. It was also due to persisting doubts about the wisdom of the project, and a nagging uncertainty whether hecould do justice to the vigour and insight of the theses ofthe book as originally conceived. Nevertheless, and with manyinterruptions, he persisted with work on the postscript and atthe time of his death the first of the two intended sections wasnearly complete.When Jenifer Hart asked us to look at the drafts anddecide whether there was anything publishable there ourforemost thought was not to let anything be published thatHart would not have been happy with. We were, therefore,delighted to discover that for the most part the first section ofthe postscript was in such a finished state. We found onlyhand-written notes intended for the second section, and theywere too fragmentary and inchoate to be publishable. In contrast the first section existed in several versions, having beentyped, revised, retyped, and rerevised. Even the most recentversion was obviously not thought by him to be in a final
VlllEDITORS' NOTEstate. There are numerous alterations in pencil and Biro.Moreover, Hart did not discard earlier versions, but seems tohave continued to work on whichever version was to hand.While this made the editorial task more difficult, the changesintroduced over the last two years were mostly changes ofstylistic nuance, which itself indicated that he was essentiallysatisfied with the text as it was.Our task was to compare the alternative versions, and wherethey did not match establish whether segments of text whichappeared in only one of them were missing from the othersbecause he discarded them, or because he never had oneversion incorporating all the emendations. The published textincludes all the emendations which were not discarded byHart, and which appear in versions of the text that he continued to revise. At times the text itself was incoherent. Oftenthis must have been the result of a misreading of a manuscript by the typist, whose mistakes Hart did not always notice.At other times it was no doubt due to the natural way inwhich sentences get mangled in the course of composition, tobe sorted out at the final drafting, which he did not live to do.In these cases we tried to restore the original text, or to recapture, with minimum intervention, Hart's thought. Onespecial problem was presented by Section 6 (on discretion).We found two versions of its opening paragraph, one in acopy which ended at that point, and another in a copy containing the rest of the section. As the truncated version wasin a copy incorporating many of his most recent revisions,and was never discarded by him, and as it is consonant withhis general discussion in the postscript, we decided to allowboth versions to be published, the one which was not continued appearing in an endnote.Hart never had the notes, mostly references, typed. He hada hand-written version of the notes, the cues for which weremost easily traced in the earliest typed copy of the main text.Later he occasionally added references in marginal comments,but for the most part these were incomplete, sometimes indicating no more than the need to trace the reference. TimothyEndicott has checked all the references, traced all that wereincomplete, and added references where Hart quoted Dworkinor closely paraphrased him without indicating a source.
EDITORS' NOTElXEndicott also corrected the text where the quotations wereinaccurate. In the course of this work, which involved extensive research and resourcefulness, he has also suggested severalcorrections to the main text, in line with the editorial guidelines set out above, which we gratefully incorporated.There is no doubt in our mind that given the opportunityHart would have further polished and improved the text beforepublishing it. But we believe that the published postscript contains his considered response to many of Dworkin's arguments.P.A.B.J.R.
CONTENTSI. PERSISTENT QUESTIONSI. Perplexities of Legal Theory2. Three Recurrent Issues3· Definition6I 3II. LAWS, COMMANDS, AND ORDERSI. Varieties of Imperatives2. Law as Coercive OrdersI8IIII. THE VARIETY OF LAWSI. The Content of Laws2. The Range of Application3· Modes of Origin26274244IV. SOVEREIGN AND SUBJECTI. The Habit of Obedience and theContinuity of Law2. The Persistence of Law3· Legal Limitations on Legislative Power4· The Sovereign behind the Legislatureso5I6I667IV. LAW AS THE UNION OF PRIMARY ANDSECONDARY RULESI. A Fresh Start2. The Idea of Obligation3· The Elements of LawVI. THE FOUNDATIONS OF A LEGALSYSTEMI. Rule of Recognition and Legal Validity2. New Questions3· The Pathology of a Legal SystemVII. FORMALISM AND RULE-SCEPTICISMI. The Open Texture of Law2. Varieties of Rule-Scepticism8207979829IIOOIOOI IOI I7I2424II 36
XIICONTENTS3· Finality and Infallibility in JudicialDecision4· Uncertainty in the Rule of RecognitionI4II47VIII. JUSTICE AND MORALITYI. Principles of Justice2. Moral and Legal Obligation3· Moral Ideals and Social CriticismISSIS 7I 67I SoIX. LAWS AND MORALS1. Natural Law and Legal Positivism2. The Minimum Content of Natural Law3· Legal Validity and Moral ValueISSISSI93200X. INTERNATIONAL LAW1. Sources of Doubt2. Obligations and Sanctions3· Obligation and the Sovereignty of States4· International Law and MoralityS· Analogies of Form and Content2I32I 32I 6220227232PostscriptIntroductory1. The Nature of Legal Theory2. The Nature of Legal Positivism(i) Positivism as a Semantic Theory(ii) Positivism as an Interpretive Theory(iii) Soft Positivism3· The Nature of Rules(i) The Practice Theory of Rules(ii) Rules and Principles4· Principles and the Rule of RecognitionPedigree and InterpretationS· Law and Morality(i) Rights and Duties(ii) The Identification of the Law6. judicial 6S269272Notes277Indexgog
IPERSISTENT QUESTIONSI. PERPLEXITIES OF LEGAL THEORYFEw questions concerning human society have been askedwith such persistence and answered by serious thinkers inso many diverse, strange, and even paradoxical ways as thequestion 'What is law?' Even if we confine our attention tothe legal theory of the last I 50 years and neglect classical andmedieval speculation about the 'nature' of law, we shall finda situation not paralleled in any other subject systematicallystudied as a separate academic discipline. No vast literatureis dedicated to answering the questions 'What is chemistry?'or 'What is medicine?', as it is to the question 'What is law?'A few lines on the opening page of an elementary textbook isall that the student of these sciences is asked to consider; andthe answers he is given are of a very different kind from thosetendered to the student oflaw. No one has thought it illuminating or important to insist that medicine is 'what doctors doabout illnesses', or 'a prediction of what doctors will do', orto declare that what is ordinarily recognized as a characteristic, central part of chemistry, say the study of acids, is notreally part of chemistry at all. Yet, in the case of law, thingswhich at first sight look as strange as these have often beensaid, and not only said but urged with eloquence and pas
In this field of study it is particularly . version was obviously not thought by him to be in a final . Vlll EDITORS' NOTE state. There are numerous alterations in pencil and Biro. Moreover, Hart did not discard earlier versions, but seems to have continued to work on whichever version was to hand. While this made the editorial task more difficult, the changes introduced over the last two .