Review: The Concept of Law

The Concept of Law
The Concept of Law: Second Edition
H. L. A. Hart
New York: Oxford University Press, 1997

Review Copyright © 2002 Garret Wilson — 2 November 2002 8:55am

H.L.A. Hart's treatise on legal philosophy, originally published in 1961, stands on a timeline between the works of Austin in the 19th Century and the thoughts of Dworkin in the late 20th and 21st Centuries. Hart clarifies (a little late in the book) that his aim is not to define the term "law" so that one could determine whether a rule is actually a law or not (213), although in many places he does just that. The broader purpose of the book, however, is admittedly to examine how "law" compares and contrasts with other things intertwined with what we consider "legal"—defining the system of law in order to determine a way to analyze it. The book is so titled: The Concept of Law.

Hart's first step is to criticize the description of law popularized by Austin that laws are no more than a set of rules set up by a sovereign who ensures the adherance to those rules by threats. Hart manages to contradict this notion by noting that, in modern legal systems, there is something called legitimacy that can exist separate from the sovereign. Somehow the legitimacy of laws seems to be maintained through the perpetuity of a system, through the changes in the actual ruling individuals or legislature. He also points out that some laws (again pointing to modern legal systems) do not necessarily bring about punishments if they are not followed, but instead describe the bounds of the legitimacy of other laws and the processes that should be used in the legal system.

While Hart pokes valid holes in the theory of laws as orders backed by threats, he fails to propose anything that could adequately explain adherance to laws. Although he notes that ideas of morality may urge adherance to laws in some cases, in others "calculations of long-term interest; disinterested interest in others; an unreflecting inherited or traditional attidude; or the mere wish to do as others do" could serve the same purpose, as he states in passing towards the end of the work (203). Ideas of social construction and acceptance through conditioning are not explored (although hinted at (55)), and the acceptance of some laws because of their economic utility are towards the end given only a glance (223).

Instead Hart falls into the rut common in similar treatises (such as Hedley Bull's The Anarchical Society) of description rather than explanation. The crux of Hart's theory is that all laws are either primary laws, prescribing actions that must or must not be done; or secondary laws, prescribing how laws are made, how jurisdiction is determined, etc. Justice is the concept that these laws are fairly and evenly applied, and morality, though related to law, is a distinct concept.

The benefit of Hart's theory, if it could be called that, is not apparent. The fact he has disproved the Austinian notion of laws as order backed by threats is useful, as is shown by his analysis of international law, which in Hart's time looked less like anything that could be called "law". Hart shows that most objections to categorizing international law as "really law" stem from a mistaken Austinian belief that there must be something analogous to a sovereign that has ultimate power over states to force compliance with laws. In reality, the formation of and adherance to many international laws have analogs in domestic laws of individual states, especially those with advanced legal systems. Evolution of the states system and further globalization since the book has been written show these analyses to have some validity.

There remains unanswered the question of why states adhere to international laws, although Hart dismisses the theory that obligations at the international level arise solely out of contractual arrangements. He also dismisses their being any international "basic norm" (233) for want of defining what that norm is, although later regime theorists could surely take a stab at describing several such norms.

For its descriptive aspects, The Concept of Law is invaluable. The description of formalism in Chapter VII could stand on its own as an outstanding introduction to rule-based as opposed to case-based law. Hart's work was apparently an essential step away from Austinian thought and provided the basis for other formulations such as found in Dworkin's Law's Empire. Perhaps it set the terms for many discussions about legal concepts, and provided new methods of analysis and discussion. It provides appropriate terms to use when discussing what the concept of law is, but instead of providing a theory answering "why law is" or "why law is accepted", The Concept of Law seems to leave that step to others.