The Concept of Law

1. Introduction

The Concept of Law (1961) is H. L. A. Hart’s attempt to answer a cluster of interconnected questions: what kind of social phenomenon law is, how a legal system is structured, how legal rules differ from other social rules, and how law relates to morality and coercion. Hart treats these as conceptual and explanatory questions about the practice lawyers and officials actually engage in, rather than as normative questions about what the law ought to be.

From the outset, Hart distinguishes his project from both traditional natural law theories and earlier versions of legal positivism. Against natural law, he maintains that the existence and validity of legal rules can be explained without building morality into the very definition of law, while still acknowledging significant factual and practical connections between legal and moral norms. Against command theories associated with John Austin, he seeks a more complex account of law than “orders backed by threats,” one that can explain constitutional limits, power‑conferring rules, and the continuity of legal systems.

A central feature of the book is its focus on rules. Hart argues that the best way to understand law is as a union of primary rules that impose duties and secondary rules that confer powers to create, change, and apply those duties. This framework is meant to clarify otherwise puzzling features of legal practice, such as legislation, adjudication, and the notion of legal validity.

Hart also introduces methodological themes that shape the entire work: attention to ordinary legal language, the importance of participants’ internal point of view toward rules, and a descriptive, “hermeneutic” stance that aims to make sense of law from within while remaining philosophically critical. Subsequent sections of this entry track how these themes inform Hart’s treatment of jurisprudential problems across the book.

2. Historical and Intellectual Context

Hart’s book emerged from mid‑twentieth‑century debates in both jurisprudence and analytic philosophy. It is often situated at the intersection of three main developments: the transformation of legal positivism, the rise of ordinary‑language philosophy at Oxford, and post‑war reflections on legality and morality.

Legal Positivism after Austin

Nineteenth‑century English positivism was dominated by John Austin’s command theory, which portrayed laws as orders issued by a sovereign and backed by threats. By the 1950s, many jurists regarded this picture as too crude for constitutional democracies with complex institutions. Continental positivist traditions (e.g. Hans Kelsen’s Pure Theory of Law) had already moved toward more formal, norm‑theoretic accounts.

Hart’s work is often read as an Anglophone alternative to Kelsen, retaining the positivist emphasis on social sources of law while rejecting both Austin’s coercive model and Kelsen’s highly abstract hierarchy of norms.

Analytic Philosophy and Language

At Oxford, Hart was deeply influenced by J. L. Austin, Gilbert Ryle, and other ordinary‑language philosophers. Their attention to how words are actually used in social practices informed Hart’s method. He applies this style of analysis to legal concepts such as “obligation,” “authority,” and “rule,” insisting that many jurisprudential puzzles arise from misdescribing ordinary legal discourse.

Post‑War Legal and Moral Concerns

The experience of totalitarian regimes and post‑war trials prompted renewed interest in the relationship between legality and injustice. Natural lawyers such as Lon L. Fuller argued that legality has an inherently moral dimension. Hart’s book participates in this debate by defending a version of legal positivism that allows condemnation of evil laws while analytically distinguishing legal validity from moral worth.

British Institutional and Pedagogical Context

Commissioned for the Clarendon Law Series, The Concept of Law was also intended as a systematic, accessible text for law students. It reflects the then‑dominant British focus on municipal (domestic) legal systems and common‑law reasoning, even as it engages with broader European theoretical traditions.

3. Author and Composition

H. L. A. Hart (1907–1992) was an English legal philosopher who held the Oxford Chair of Jurisprudence from 1952 to 1968. Trained initially in classics and philosophy, he practiced as a barrister and worked for British intelligence during the Second World War before returning to academic life. His background in both analytic philosophy and legal practice shaped the distinctive character of The Concept of Law.

Hart’s Intellectual Formation

Hart studied under figures such as Gilbert Ryle and worked closely with ordinary‑language philosophers including J. L. Austin. This environment encouraged an approach to jurisprudence grounded in careful analysis of everyday and professional legal language. His earlier essays—such as “Legal Duty and Obligation” (1930s) and “Positivism and the Separation of Law and Morals” (1958)—contain many themes later systematized in the book.

Genesis of The Concept of Law

The book was composed between roughly 1952 and 1960, largely developed from Hart’s Oxford lectures to law students and graduate seminars in jurisprudence. Colleagues and interlocutors—including Tony Honoré, Neil MacCormick, and visiting scholars—provided ongoing critical feedback. Some commentators suggest that Hart was also responding to the perceived inadequacy of existing English‑language jurisprudential textbooks, especially those framed around Austinian ideas.

Later Revisions and Postscript

Although the first edition appeared in 1961, Hart continued to refine his views. In the late 1970s he drafted a substantial Postscript responding mainly to Ronald Dworkin’s criticisms; this was published posthumously in the second edition (1994), edited by Penelope Bulloch and Joseph Raz. The third edition (2012), edited by Leslie Green with Bulloch and Raz, adds editorial notes but leaves Hart’s text—including the Postscript—unaltered apart from minor corrections.

4. Aims and Method: Analytic Jurisprudence

Hart explicitly frames The Concept of Law as an exercise in analytic jurisprudence. His central aim is to clarify the general concept of law as it operates in modern municipal legal systems, not to propose reforms or defend a particular moral view of legislation.

Descriptive, Not Prescriptive

Hart characterizes his project as descriptive sociology of law: an attempt to describe the structure and functioning of legal systems from the standpoint of participants, while abstaining from moral evaluation. Proponents read this as a methodological separation between:

Critics sometimes dispute how strictly this line can be drawn, but Hart’s intention is to provide a conceptual map on which different moral and political theories could then locate themselves.

The Hermeneutic Method and the Internal Point of View

Hart adapts tools from analytic philosophy to legal phenomena. He insists that identifying law’s distinctive features requires attending to the internal point of view of those who use legal rules as standards. This “hermeneutic” stance seeks to understand how participants regard certain norms as binding, rather than merely recording external behavioral regularities or psychological states.

Conceptual Analysis and Ordinary Language

Influenced by Oxford philosophy, Hart uses conceptual analysis to disentangle overlapping ideas such as obligation, habit, coercion, and authority. He focuses on how terms like “law,” “right,” and “duty” function in legal practice, arguing that jurisprudential confusion often stems from stretching ordinary terms to fit theoretical preconceptions (for example, assimilating all laws to coercive orders).

Scope and Limits

Hart confines his primary analysis to developed municipal legal systems with legislatures, courts, and constitutions. He treats cases like international law or primitive societies as limiting instances that test, but do not define, the core concept. This selection has been praised for analytic clarity and criticized for underplaying plural and non‑state legal orders.

5. Structure and Organization of the Work

Hart organizes The Concept of Law into a sequence of chapters that move from critical engagement with existing theories to a positive account of legal systems and their relation to morality and international order. The overall structure is designed to build his model of law cumulatively.

Outline of Main Parts

Pedagogical and Dialectical Design

The sequence is dialectical: Hart first dismantles overly simple conceptions of law (as commands, as habits, or as mere predictions), then introduces the more complex schema of primary and secondary rules, and finally tests this schema against issues of adjudication, morality, and international order. Each chapter presupposes concepts introduced earlier—for example, the discussion of judicial discretion relies on the earlier analysis of rules and open texture.

The Postscript, added decades later, does not restructure the book but comments selectively on earlier claims, especially regarding legal positivism, the rule of recognition, and judicial reasoning.

6. Critique of Command Theories of Law

A major early part of The Concept of Law is devoted to criticizing command theories, particularly that of John Austin, which characterize law primarily as commands issued by a sovereign and backed by threats of sanctions.

Core Features of Command Theories

Austin’s view can be summarized as follows:

Hart argues that this picture captures some aspects of criminal law but fails as a general theory of legal systems.

Main Lines of Hart’s Critique

1. Continuity of Law and Sovereignty
   Command theory struggles to explain how a legal system persists across changes of sovereign. The notion of a “habit of obedience” to a particular person or body does not account, Hart contends, for the complex constitutional rules that govern succession and authority in modern states.

2. Power‑Conferring Rules
   Many legal rules do not order people to behave but confer powers—e.g. to make wills, contracts, or legislation. Hart maintains that describing these as “orders backed by threats” misrepresents their function: they create facilities rather than impose duties.

3. Obligations vs. Coercion
   Hart distinguishes genuine obligations from mere coercive pressure. In his view, obligations arise from social rules internalized by participants, not simply from the fear of sanctions. This undermines the claim that legal obligation can be reduced to predictable coercion.

4. Limits of Sovereign Supremacy
   Constitutional rules often limit what legislatures and executives may do (e.g. bills of rights). Hart argues that treating these constraints as the sovereign’s self‑imposed orders is artificial and cannot explain their juridical status as binding rules.

Alternative Explanations and Responses

Proponents of Austinian or neo‑command views have suggested modifications, such as broadening the notion of “sovereign” to include complex institutions or characterizing power‑conferring rules as fragments of conditional commands. Critics of Hart reply that his standards of adequacy for a theory of law are too demanding, or that command models can be reconceived in more sophisticated, systemic terms. Nonetheless, Hart’s critique became a standard reference point and contributed to the decline of simple command theories in contemporary jurisprudence.

7. Primary and Secondary Rules

Hart’s most influential positive contribution is his model of law as a union of primary and secondary rules. This structure is presented as solving problems that arise in a society governed only by informal social norms.

Primary Rules of Obligation

Primary rules impose duties by requiring or forbidding conduct (e.g. prohibitions on violence, rules requiring tax payment). Hart argues that a society with only such rules faces three main difficulties:

Secondary Rules: Rules about Rules

To address these defects, Hart posits secondary rules, which are rules about how primary rules are identified, changed, and applied. He distinguishes three main types:

• Rule of recognition – specifies criteria for identifying valid legal rules in the system (e.g. enactment by parliament, consistency with a constitution).
• Rules of change – confer powers on individuals or bodies to create, amend, or repeal rules (e.g. legislative procedures).
• Rules of adjudication – confer powers on officials and courts to determine when rules have been breached and to resolve disputes.

Together, these secondary rules transform a diffuse set of social norms into an organized legal system.

The Union Thesis

Hart’s “union thesis” holds that a legal system exists when primary rules of obligation are effectively combined with secondary rules in an integrated practice accepted by officials. This union is meant to:

• Explain the complexity of modern law without reducing it to commands or moral norms.
• Account for legislative and judicial institutions as manifestations of rules of change and adjudication.
• Provide a framework for understanding legal validity (via the rule of recognition) and continuity over time.

Alternative theorists have proposed different typologies of rules or questioned whether Hart’s tripartite classification is exhaustive, but his primary/secondary distinction remains a central organizing device in analytic jurisprudence.

8. The Rule of Recognition and Legal Validity

Within Hart’s scheme, the rule of recognition occupies a foundational role. It is the ultimate secondary rule that specifies the criteria by which other norms count as valid law in a given system.

Nature of the Rule of Recognition

Hart characterizes the rule of recognition as a social rule accepted from the internal point of view by officials (e.g. judges, legislators). It provides shared standards such as:

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“What the Queen in Parliament enacts is law”
“Norms contained in the written constitution and properly enacted statutes are law”

The specific content varies by jurisdiction. What is common, according to Hart, is that officials use this rule in practice to identify sources of law and criticize departures from it.

Legal Validity

A norm is legally valid in Hart’s sense if it satisfies the criteria laid down by the rule of recognition. This allows an explanation of validity that depends on social facts—the convergent practices of officials—rather than on moral correctness. Hart emphasizes that the rule of recognition is a matter of actual practice, not hypothetical agreement.

Incorporation of Moral Standards

Hart allows that a legal system’s rule of recognition may, as a matter of social fact, incorporate moral criteria (e.g. “no law is valid if it violates human rights”). This position—sometimes termed inclusive or soft positivism—permits but does not require such incorporation. Later positivists and critics, including Joseph Raz and Ronald Dworkin, debate the extent and implications of this possibility.

Challenges and Alternatives

Critics raise several questions:

• Whether the focus on officials’ acceptance neglects citizens’ perspectives or broader political structures.
• Whether the rule of recognition can be clearly identified in pluralistic or decentralized systems.
• Whether the idea of an ultimate rule of validity is compatible with constitutionalism, judicial review, or competing sources of authority (e.g. religious law).

Alternative accounts propose, for example, a more dynamic, value‑laden conception of legality (Dworkin) or a more strictly source‑based rule of recognition that excludes moral criteria (Raz). Hart’s own Postscript revisits some of these issues.

9. Internal Point of View and Legal Obligation

Hart introduces the internal point of view and a revised account of legal obligation to distinguish genuine rules from mere regularities of behavior or patterns of coercion.

The Internal and External Points of View

Hart contrasts two perspectives on social rules:

A complete account of law, Hart argues, must acknowledge both, but the internal point of view is crucial for understanding how rules function as reasons for action.

Social Rules and Obligation

For Hart, social rules exist when a group exhibits:

• Regular behavior in accordance with a standard; and
• A critical reflective attitude toward that standard, expressed in criticism, justification, and demands for conformity.

Legal rules are a special class of social rules backed by institutional structures. Obligation arises when failure to comply with such a rule is generally treated as a justified basis for criticism and sanctions. This differs, on Hart’s view, from:

• Mere habits (e.g. customary routes home), which lack critical attitudes.
• Situations of sheer coercion (e.g. a gunman’s threat), where compliance is compelled but not regarded as owed.

Legal Obligation

Within a legal system, officials typically adopt the internal point of view toward the rule of recognition and many other rules, seeing them as standards that justify judicial decisions and criticism. Citizens may vary in their attitudes, but a minimal level of acceptance or acquiescence is usually present.

Some commentators argue that Hart underplays the role of moral reasons in legal obligation, while others question whether his account adequately distinguishes genuine obligations from socially entrenched but unjust practices. Nonetheless, his focus on participants’ attitudes has become central to debates about how law can be both a social fact and a normative system.

10. Open Texture, Hard Cases, and Judicial Discretion

Hart devotes a key chapter to analyzing how rules operate in practice, emphasizing the open texture of legal language and the resulting phenomena of hard cases and judicial discretion.

Core and Penumbra

Hart suggests that most legal rules have:

This open texture stems from the generality of language and the impossibility of foreseeing all future circumstances.

Hard Cases

Hard cases arise in the penumbral zone where existing rules, interpreted in their ordinary meaning and light of their purposes, do not yield a single determinate answer. Hart argues that in such cases judges cannot simply deduce the outcome from existing law; instead, they must exercise a limited discretion to extend, restrict, or qualify rules.

Proponents of this view see it as compatible with:

• Rules decisively governing most routine cases.
• A recognition that policy, moral reasoning, and social aims may legitimately enter judicial decision‑making at the margins.

Against Formalism and Rule‑Skepticism

Hart uses open texture to critique two opposing tendencies:

• Formalism (or “mechanical jurisprudence”), which assumes that legal reasoning can always be a matter of deduction from clear rules.
• Rule‑skepticism, which claims that rules never genuinely constrain judicial outcomes and that judges always decide based on extra‑legal factors.

He argues instead for an intermediate position: rules substantially determine outcomes in the core but leave room for choice in the penumbra.

Alternative Views

Critics—most notably Ronald Dworkin—contend that even in hard cases, judges are often guided by legal principles, not unstructured discretion, and that legal reasoning remains a matter of interpreting the best justification of the legal system as a whole. Others question whether Hart underestimates the indeterminacy present even in apparently “core” cases or, conversely, overstates the extent of open texture in well‑developed legal regimes.

11. Law, Morality, and the Minimum Content of Natural Law

Hart devotes several chapters to clarifying the relationship between law and morality and to defending a modest thesis about a minimum content of natural law.

Separability and Connections

Hart’s separability thesis holds that there is no necessary conceptual connection between legal validity and moral merit: unjust rules can still count as law if they meet the system’s criteria of validity. He contrasts this with natural law views that build moral requirements into the definition of law.

At the same time, Hart emphasizes multiple contingent connections:

• Laws often reflect prevailing moral standards.
• Legal systems typically claim moral authority and structure moral expectations.
• Moral criticism of law presupposes the ability to distinguish what the law is from what it ought to be.

Types of Moral Principles

Hart differentiates:

He argues that legal systems typically incorporate elements of the morality of duty and principles of justice, but may diverge from ideals of aspiration and, at times, from even basic moral norms.

Minimum Content of Natural Law

Hart nonetheless claims there is a “minimum content of natural law”—a set of basic moral rules that any viable legal system must approximately embody to secure social survival. These arise, he suggests, from facts about the human condition:

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human vulnerability, approximate equality, limited altruism, limited resources, and limited understanding.

From these facts, he infers the practical necessity of rules against violence, theft, and deception and of some form of property and contract. This does not make law inherently moral in a robust sense, but it implies that certain minimal moral requirements are nearly universal in functioning legal orders.

Natural law theorists often see this as a partial concession, while some positivists regard it as a purely prudential, not genuinely moral, necessity. Hart’s formulation has prompted continuing debate about whether “minimum content” is best understood as moral, prudential, or a hybrid.

12. International Law and the Concept of a Legal System

Hart uses international law as a test case for his general model of law as a union of primary and secondary rules. He asks whether international law constitutes a full‑fledged legal system or a more primitive order.

Features of International Law

International law exhibits many characteristics of a normative order:

• Rules governing the use of force, treaties, diplomatic relations, and human rights.
• Regularized expectations among states.
• Institutions such as the International Court of Justice and various treaty bodies.

However, Hart notes important differences from municipal systems:

Hart’s Assessment

Hart suggests that international law is predominantly a system of primary rules (e.g. prohibitions on aggression, obligations under treaties) with only rudimentary or fragmented secondary rules. On this view, it more closely resembles a pre‑legal or partially legal order in his terminology, though he does not deny that it is law in an important sense.

He argues that:

• There is no fully developed, universally accepted rule of recognition in the international sphere.
• Rules of change and adjudication exist but are incomplete and largely dependent on state consent.
• Despite these limitations, the regular observance and internalization of norms by states support viewing international law as a legal order, albeit one that diverges from the municipal paradigm.

Alternative Perspectives

Some international lawyers and theorists contend that Hart underestimates the systemic character of international law, pointing to:

• Increasing institutionalization (UN organs, WTO, human rights courts).
• Emerging hierarchies of norms (e.g. jus cogens) that function like elements of a rule of recognition.
• The role of customary international law in stabilizing criteria of validity.

Others agree with Hart that international law illustrates a looser, more decentralized form of legal order, challenging state‑centric and positivist assumptions in different ways.

13. Postscript and Debate with Dworkin

The Postscript to The Concept of Law, published in the second edition (1994), records Hart’s late responses to criticisms, especially those advanced by Ronald Dworkin. It both clarifies and modestly revises aspects of his original position.

Main Targets of the Postscript

Dworkin’s critiques—developed in Taking Rights Seriously and later works—center on three claims he attributes to Hartian positivism:

Hart’s Postscript addresses these interpretations.

Clarifications and Revisions

In the Postscript, Hart:

• Affirms inclusive positivism: He emphasizes that his original theory allows a rule of recognition to incorporate moral criteria as legal tests of validity, depending on social practice.
• Qualifies judicial discretion: He reiterates that discretion is limited and that judges in hard cases often appeal to existing legal standards, including principles; but he maintains that these standards need not always be determined by pre‑existing law.
• Acknowledges principles: Hart concedes that he did not sufficiently discuss the role of legal principles in the original text, but denies that their existence refutes positivism; he treats them as part of the materials that may or may not be incorporated into the rule of recognition.

Relation to Other Debates

Hart also responds to other positivists, such as Joseph Raz, who advocate exclusive positivism, denying that moral criteria can ever be part of the rule of recognition. Hart distances himself from this stronger claim, defending a more flexible, practice‑dependent version of positivism.

Commentators differ on how far the Postscript alters the original theory. Some read it as a significant shift toward a more interpretive view of law; others see it as mainly a restatement and clarification of earlier commitments in light of Dworkin’s influential objections.

14. Major Criticisms and Alternative Views

The Concept of Law has generated extensive critical discussion and competing theoretical frameworks. Major lines of criticism target Hart’s accounts of legality, normativity, and the role of morality.

Dworkin and Interpretivism

Ronald Dworkin argues that Hart’s rule‑based model fails to capture the centrality of principles—norms with weight rather than conclusive force—in legal reasoning. Dworkin maintains that:

• Law includes principles that cannot be derived solely from a rule of recognition keyed to pedigreed sources.
• Judges, even in hard cases, are bound to identify the “best” interpretation of the legal system, not to exercise discretionary choice.
• Legal rights and obligations exist prior to judicial decisions, contrary to Hart’s portrayal of creative discretion in penumbral cases.

This leads to Dworkin’s interpretivist theory, which construes law as integrity rather than as a set of rules fixed by social facts alone.

Natural Law Critiques

Natural law theorists (e.g. John Finnis) argue that Hart’s separability thesis overlooks law’s inherent moral dimension. They contend that:

• Law’s claim to authority is unintelligible without reference to objective moral reasons.
• The concept of a legal system cannot be adequately explained without incorporating basic principles of practical reasonableness.
• Hart’s “minimum content” of natural law understates the extent to which moral norms shape legal validity, not merely legal prudence.

Sociological and Critical Perspectives

Sociological and critical theorists challenge Hart’s focus on officials and formal rules:

• Legal realists and some socio‑legal scholars highlight the gap between “law in books” and “law in action,” suggesting that Hart’s model underplays informal practices, bargaining, and power.
• Critical legal studies authors argue that the distinction between core and penumbra and the idea of relatively determinate rules obscure pervasive indeterminacy and ideological choice.
• Feminist and critical race theorists question Hart’s assumption of neutral, shared standards among officials, emphasizing how the rule of recognition and accepted practices may embed structural inequalities.

Alternative Positivisms and Post‑Positivisms

Within positivism, figures like Joseph Raz and Jules Coleman develop alternative formulations:

Other theorists propose post‑positivist syntheses, combining elements of Hart’s social‑fact focus with moral and interpretive dimensions.

These diverse responses position Hart’s work as a central reference point—sometimes as a foil—against which subsequent theories of law define themselves.

15. Legacy and Historical Significance

The Concept of Law is widely regarded as a foundational text of modern analytic jurisprudence, shaping debates about law’s nature for more than six decades.

Impact on Legal Philosophy

Hart’s concepts—primary and secondary rules, rule of recognition, internal point of view, open texture—have become standard tools in legal theory. Subsequent discussions of legal validity, obligation, and adjudication frequently adopt his terminology, whether to refine, defend, or reject his claims.

Influence on Practice and Doctrine

Hart’s ideas have indirectly influenced legal practice, particularly in common‑law jurisdictions:

• Courts and scholars use the language of “rules of recognition” when discussing constitutional supremacy and hierarchy of norms.
• The distinction between rules and standards or principles, along with the notion of open texture, informs interpretations of statutes and constitutions.
• His account of law’s separability from morality features in debates about the legality and legitimacy of unjust regimes.

Pedagogical and Disciplinary Role

The book has served as a central text in law school and philosophy curricula, helping to professionalize jurisprudence as a specialized field. It has inspired extensive commentary, including monographs by Neil MacCormick, Joseph Raz, and others, and continues to anchor introductory courses in legal theory.

Continuing Relevance and Reassessment

While many aspects of Hart’s framework remain influential, changing legal realities—such as constitutional pluralism, transnational regulation, and evolving forms of international and human rights law—have prompted reassessment. Scholars debate how well Hart’s state‑centered, municipal model accommodates:

• Supranational entities (e.g. the European Union),
• Legal pluralism within and across states,
• Informal or customary normative orders.

Despite these challenges, The Concept of Law continues to function as a primary reference point and common vocabulary for diverse jurisprudential traditions, ensuring its status as a landmark in twentieth‑century legal thought.