H
Hart, H.L.A.
Brian H. Bix
Law and Philosophy, University of Minnesota,
Minneapolis, MN, USA
Introduction
H.L.A. (Herbert Lionel Adolphus) Hart
(1907–1992) is probably the most influential
English-language legal philosopher of the twenti-
eth century. He is best known for his work on
theories of the nature of law, in particular, for his
version of legal positivism. In addition, Hart made
important contributions to the debates about the
legal enforcement of morality, legal rights, causa-
tion, and punishment. There is a substantial liter-
ature on his work – among the best sources are
MacCormick (2008) and Bayles (1992), the col-
lections Gavison (1987) and Hacker and Raz
(1977), and, for the works in the context of the
life, Lacey (2004); many scholars continue to
elaborate Hart’s approach to many topics.
Early Work
In one of his earliest works, Hart introduced two
provocative ideas. First, he argued that judicial
decisions should be seen as performatives – not
propositions that purport to describe the world but
sentences that do something or change something
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in the world; in Hart’s terminology, these propo-
sitions “ascribe” legal conclusions (Hart
1948–1949). Under this analysis, when a judge
declares that “A and B have a valid contract,” that
judge is creating a new legal reality (in analogy to
the presiding clergy who states “I now pro-
nounced you man and wife”), rather than
purporting to describe some preexisting truth.
Secondly, Hart argued that legal reasoning and
legal concepts are essentially defeasible (Hart
1948–1949, 174–183) – e.g., the way that offer,
acceptance, and consideration (under English or
American law) are sufficient to show a contract to
be valid, but if one of the party shows the contract
to have been entered under fraud or duress, the
contract then becomes void or voidable, despite
the presence of offer, acceptance, and consider-
ation. Hart later disowned or downplayed both of
these ideas (e.g., Hart 1983, 1–2); however, the
second, the defeasibility of legal reasoning and
legal concepts, was nonetheless taken up, in dif-
ferent forms, by a number of scholars (e.g., Ferrer
and Ratti 2012).
Hart and Legal Positivism
While how best to define and delimit the approach
to law and legal theory known as “legal positiv-
ism” remains controversial, that approach is gen-
erally equated with the distinction between
questions of validity of legal norms and the label-
ing of systems as “legal,” on one hand, and the
2 Hart, H.L.A.
(moral) merits of those norms or systems, on the
other (Bix 2015, 33–37). Legal positivism is gen-
eral contrasted with natural law theory, which
holds (among other things) that moral evaluation
is central to determining whether a system war-
rants the label “law” or a rule is a valid legal norm
(or that this system and this norm are “law” and
“legal” in the fullest form or central case of those
categories (Finnis 2011, 9–11)).
Hart’s significance was in moving the
(English-language) legal positivism of his time
from the command theory associated with John
Austin toward a less empirical and more herme-
neutic approach. Hart’s view of law was grounded
on his views of rules, in particular on a view of the
difference between rules and habits. According to
Hart, the difference between these two kinds of
regularities of behavior can be seen through the
participants’ attitudes. With habits, the statement
of the behavior is nothing more than a description:
e.g., I play basketball every Saturday. With a rule,
however, the statement can take on additional
roles: as an explanation, a justification, and a
basis for criticizing deviation. The statement has
a normative role. Many people are not merely “in
the habit” of obeying the authorities; they have
internalized the rules as reasons for acting in
certain ways and for criticizing others when they
do not behave as required.
Hart argued that John Austin’s theory, with its
equation of law with commands (orders backed by
threats), invited a confusion between imposed
force and accepted norms. Hart asserted that a
legal system is something different from, and
presumably something better than, the rule over
a frightened populace by gangsters. Many citizens
do not act according to the law simply because of
fear, simply because they feel coerced; citizens
who (in Hart’s terms) take an “internal point of
view” toward the law view the law as giving them
reasons for action. Hart’s emphasizing the internal
perspective, his belief that one cannot understand
a social system unless one understands how the
people who created the system or who participate
in the system perceive it, constituted a “herme-
neutic” approach, in contrast to the more “behav-
ioral” or “scientific” approach of other theorists.
In Hart’s words, to understand “any form of
normative social structure,” “the methodology of
the empirical sciences is useless; what is needed is
a ‘hermeneutic’ method which involves
portraying rule-governed behaviour as it appears
to its participants” (Hart 1983, 13).
Another contrast between Hart’s theory and
that of his predecessor, John Austin, regarded
whether to think of legal rules as having a single
essence. Against a view that reduced all legal rules
to variations on some single type, as Austin’s
theory seemed to reduce all legal rules to com-
mands (and Hans Kelsen’s comparable reduction
of all legal rules to authorizations to officials to
impose sanctions (Kelsen 1967, 111–119)), Hart
emphasized the multiplicity of law. He contrasted
rules that imposed duties with those that conferred
powers (whether power conferred on officials
within the legal system, or the delegation of cer-
tain legal powers to citizens, as can be said to
occur through the operation of rules for contracts,
wills, trusts, and so on), and he contrasted rules
that applied directly to citizens (“primary rules”)
and rules that governed the operation of the rule
system itself (“secondary rules”). The secondary
rules include rules of change, rules of adjudica-
tion, and the rule of recognition. Hart further
argued that there were two necessary and suffi-
cient conditions for the existence of a legal sys-
tem: (1) that the valid rules of the system “must be
generally obeyed” and (2) that the criteria set forth
in the system’s rule of recognition “must be effec-
tively accepted as common public standards of
official behaviour by its officials” (Hart 2012,
116).
Central to Hart’s theory is the concept of a rule
of recognition: the set of criteria by which the
officials determine which rules are, and which
rules are not, part of the legal system. The stan-
dards applied are referred to as justifications for
the actions of the officials, though to some extent
the standards are also created by those actions.
The rule of recognition expresses, or symbolizes,
the basic tenet of legal positivism: that there are
conventional criteria, agreed upon by officials, for
determining which rules are and which are not
part of the legal system; this in turn points to the
separation of the identification of the law from its
moral evaluation and the separation of statements
Hart, H.L.A.
about what the law is from statements about what
it should be.
In discussing legal reasoning, Hart concluded
that judges inevitably use their discretion in hard
cases to make new law, particularly on the occa-
sions where the legal rules have “open texture”
(Hart 2012, 123–136). He also argued that this
was a benefit, not a problem, that judicial law-
making at the margins gave needed flexibility to
the application of legal rules.
Prominent criticisms of Hart’s approach to law
and legal theory include those derived from the
procedural natural law theory of Lon Fuller (1958,
1969), the traditional (Thomistic) natural law the-
ory of John Finnis (2007, 2011), the interpretive
theory of Ronald Dworkin (1977, 1986), and the
exclusive legal positivism of Joseph Raz (1990,
2009). Some of the most heated debates surround
Dworkin’s critiques of Hart’s approach. Dworkin
argued (among other things) that judges do not
have discretion (in any strong or Meaning Full
sense of that term), but rather that there was
always or almost always a preexisting right
answer to legal disputes, that legal systems
contained principles as well as rules, and that no
conventional and content-neutral “rule of recog-
nition” could distinguish legal from nonlegal
standards – that moral evaluation was central to
determining what the law required. Hart replied to
some of Dworkin’s arguments in a posthumously
published Postscript to his The Concept of Law
(Hart 2012, 238–276).
Other Contributions
There is space only for brief mentions of other
areas where Hart’s works were influential. First,
Hart had a series of exchanges with Lord Patrick
Devlin regarding the legal enforcement of moral
norms (Hart 1963; Devlin 1965). Devlin was
responding to the 1957 Wolfenden Report, which
had suggested that prostitution and homosexuality
be decriminalized; the report argued that such
matters of “private morality” were not the law’s
business. Devlin argued that communities had a
right to defend themselves against actions that
would undermine the shared morality that
3
undergird society. Hart’s response largely tracked
John Stuart Mill’s “Harm Principle” (Mill 1974)
but also introduced the important distinction
between “conventional morality” (what people
believe morality to required) and “critical moral-
ity” (what morality actually requires). Hart
asserted that the defense of a community’s con-
ventional morality would not justify the interfer-
ence with liberty that the legal enforcement of
(sexual) morality would entail, especially as
there was little evidence, historically, that changes
in a society’s conventional morality generally
undermined society.
Second, in the area of legal rights, Hart advo-
cated a “will theory” (as contrasted to the “interest
theory”). This approach claimed that choice is
central to the nature of rights. Hart analyzed rights
in terms of a protected bilateral liberty, with the
right holder “being given by the law exclusive
control, more or less extensive, over another per-
son’s duty so that in the area of conduct covered
by that duty the individual who has the right is a
small-scale sovereign to whom the duty is owed”
(Hart 1982: 183).
Third, Hart’s work on punishment (Hart 2008)
offered a compromise between consequentialist
and deontological schools, arguing for a deonto-
logical/retributivist approach to whom to punish
(no punishing of the innocent, regardless of how
good the consequences might be) but a conse-
quentialist approach to how much to punish.
One should also mention the comprehensive
study Hart did with Tony Honoré on causation in
the law (Hart and Honoré 1985) and the valuable
efforts Hart gave to having the works of Jeremy
Bentham edited and published (a process that is
still ongoing under the auspices of The Bentham
Project). Many of Hart’s writings on Bentham are
brought together in a published collection (Hart
1982).
Conclusion
H. L. A. Hart’s primary significance for legal
philosophy was his development of a hermeneutic
and convention-based legal positivist theory of
the nature of law, an approach that remains central
4 Hart, H.L.A.
to contemporary Anglo-American jurisprudence.
He is also properly remembered for important
works on causation, punishment, defeasibility,
the will theory of rights, limitations on the legal
enforcement of morality, and Jeremy Bentham.
Cross-References
▶ Descriptive Legal Theory
▶ Dworkin, Ronald: Legal Philosophy
▶ Exclusive Legal Positivism
▶ Hermeneutical Legal Theory
▶ Inclusive Legal Positivism
▶ Legal Conventionalism
▶ Positive Law and Natural Law
▶ Raz, Joseph
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