What makes something a law and how does it come about to be a law? Is morality necessary or sufficient for law in general? Can the two or should they be separate? Two types of views answering these questions are the Natural Law Theory and the Positivist Theory. One prominent natural law theorist, St. Thomas Aquinas, states that in order for something to be a law it must be a rule that has the following properties: it must be created by reason, must be for the common good, it must be made by a person who has authority to care for the community, and must be promulgated. An important aspect to consider in this theory is the idea of extrinsic principles of acts, such that that extrinsic principle which moves to bad is the devil and that which moves to good is God. God instructs us by the means of his law (Aquinas 8). In interpreting these ideas, it is discovered that something can only be a law if it is for the common good; if it does not pertain to the common good, it cannot be a law. This suggests that there can be no such thing as “bad laws,” as that would be an oxymoron according to the ideas of natural law theory. This is a crucial element, along with the need for God for law, in the distinction between natural law theory and positivist theory. Whereas natural law theory suggests morality and law are inseparable, positivists argue to the contrary. Positivists argue that law and morality are conceptually distinct, but can often coincide; thus, allowing the possibility of “bad laws.” In Positive Law, law is distinct from morality, and God; because laws are issued by men in a political society, God is not necessary for law. Through this paper I will address the aforementioned questions in accordance to the answers provided by a classified positivist, H.L.A. Hart, where he reveals the ultimate importance of the rule of recognition with respect to law.
Effectively presenting Hart’s argument for the rule of recognition first requires presenting his explanation of why the previous ideas of a positive law failed. The earlier theory of law had been regarding coercive orders where it’s thought that “human conduct is made in some sense non-optional or obligatory” (Hart 69). In the very beginning here, Hart expresses there is an error in the coercive view of obligation because there is a difference between being obliged and having an obligation. An example presented is that of the gunman where A threatens to shoot B if B does not hand over his money (Hart 70). In this situation, B was obliged to hand over his money because B believed that if he didn’t he would consequently be seriously harmed. But, person B having an obligation would mean that he had a duty to hand over his money, which does not make sense in this case. This idea, in relevance to law, suggests that a person’s beliefs and motives are irrelevant toward someone having an obligation to do something. Hart states that because of this some theorists wrongly treated obligatory statements as predictions of punishment for disobedience. Hart responds that this concept can be rejected for several reasons and that “it is not, in fact, the only alternative to obscure metaphysics” (Hart 70-71). The latter statement is one of the evidences of Hart’s positivism; that is, his rejection of the need for metaphysics in law. One of the objections, though, raised against the predictive interpretation of obligation regards the statement being true that a person having an obligation means that he will suffer if he is disobedient. In individual cases, a contradiction can be presented such that a person is said to have an obligation, but because he escaped from jurisdiction or bribed the court or the police, there is no possible way for him to be caught or made to suffer.
In continuation with his thoughts regarding laws and obligation, Hart states that “rules are conceived and spoken as imposing obligations when the general demand for conformity is insistent and the social pressure brought to bear upon those who deviate or threaten to deviate is great” (Hart 72). With this statement, he further describes how rules can be classified as part of the morality of a social group and the obligation can be classified as moral obligation; this occurs when the social group expresses its disapproval through verbal means or in regards to the individual’s respect when the individual violates a rule. Then, the classification of obligation as a primitive form of law occurs when the social group, the larger community and not any judicial authority, implements sanctions as a form of pressure. Here, again, Hart’s positivism is evident due to his distinction between the two types of pressures resulting in a distinct morality and law, and thus supporting the positivist separability thesis. Though, he does state that the main conclusion from his argument of social pressures is that social pressure is the primary factor in determining whether the rules give rise to obligations. This conclusion of Hart’s argument might be falsely taken by predictive obligation theorists to strengthen their idea that the threat of punishment or sanctions would prevent someone from committing a crime or going against society’s rules. Hart takes this into consideration and presents the case of a swindler that does not feel any social pressure, might have had an obligation to pay rent, “but felt no pressure to pay when he made off without doing so” (Hart 73). Just because social pressure may exist, or there might be an obligation, does not mean the individual always acts according to those factors, so it would not make sense to create a law that was centrally based on this concept.
The main error in this coercive theory of law, Hart suggests, is that it focuses excessively on the external points of view for law, and loses focus of the internal. An external point of view of law can be described as that of an outsider observing a community from the outside; the observer sees all the ways the community interacts and then is able to predict correctly most of the time what would happen in different situations. For example, the outsider would see a driver given a ticket by the police officer for skipping a red light, or see the driver pass the red light without a ticket being given, and then predict the chances of success or failure in receiving punishment for deviating from the social rules. This might help the observer then go into that community and live successfully without getting into trouble, but this view does not explain why internally the rules are followed by the people since it has been demonstrated that people do not always respond according to expectation from an obligation to do something or from social pressure. Hart explains that external views “cannot reproduce [the way] in which the rules function as rules in the lives of those who normally are the majority of the society” (Hart 74). For the majority of the society, the driver crossing a red light is not just an action that produces a punishment, but a reason of why the driver should get a ticket; violating a rule isn’t just the basis for predicting a hostile reaction, “but a reason for the hostility” (Hart 74). This is the important internal aspect that the predictive theory of obligation fails to account for and is why a new theory, which is presented by Hart, is necessary in order to explain the full scope of how law works in society.
Few evidences of Hart’s positivism have been revealed through the process of this paper, but it is most evident in the latter part of his writing where he explains what a law is and how it comes about. It has been important, so far, to explain the aforementioned information because obligation, thought not understood the same way by Hart as by a coercive theorist, is still important to Hart’s theory; also, every new theory seeks to replace older ones by explaining more in a more broader way, and by eliminating those bits of information that are unnecessary to the theory. In order for a new theory to be accepted it must persuade that something was wrong or lacking in the previous theories, and the latter of which has been demonstrated in this paper.
Now, in regards to Hart’s theory, he splits his ideas into those of primary rules and secondary rules. Primary rules are described as obligatory rules, and are the ones that are abundant in primal levels of society that do not have even the simplest form of a legal system. Though several of these societies have been discovered to have existed, there are obvious massive problems that arise in simply relying on primary rules, and so secondary rules are necessary as remedies for the primary. Primary rules can be thought of as moral rules, since they consist of “restrictions on the free use of violence, theft, and deception,” and since they rely on obligation and social pressure to be enforced; though, as discussed earlier, majority of the people follow the rules from an internal view. The main problems present in the primary rules are that of uncertainty, static character, and inefficiency.
Uncertainty illustrates the problem that since there is nothing written to indicate where the rules came from, a deviant can just as well argue on an interpretation of the “custom” from which the rules are followed in order to argue that he did not do something deviant. Fixing this problem, the rule of recognition is created. The rule relies on the creation of some type of writing or inscription about the obligations or duties of the members of society. The critical aspect of the rule, though, is the “acknowledgement of reference to the writing or inscription as authoritative” (Hart 76). Through this rule, it can no longer be argued what the duties or obligations are. There is a conclusive evidence of what they are.
The problem of the static character of primary rules is that they do not allow, for the primitive society, flexibility and adaptation for new situations and changing circumstances; the only way for the rules to change is “the slow process of growth” (Hart 75). This would make a society extremely incompetent in the long run, so in order to remedy this problem the rule of change is created. This rule creates the idea of a legislative body and empowers that body to create new primary rules so that the society may be able to adjust to the changing circumstances. There is a connection to the first rule here, such that it would “necessarily incorporate a reference to legislation as an identifying feature of the rules” (Hart 77).
The third main problem of inefficiency is related to the issues of conclusive judgments on disputes regarding the rules, and also heavily on the implementation of the punishments for the violations of the rules. In primitive societies, relying on primary rules, the implementation is not done by any special agency but “[is] left to the individuals affected or to the group at large” (Hart 75).
It is obvious that the waste of time involved in the group’s unorganized efforts to catch and punish offenders, and the smoldering vendettas which may result from self help in the absence of an official monopoly of “sanctions,” may be serious. The history of law does, however, strongly suggest that the lack of official agencies to determine authoritatively the fact of violation of the rules is a much more serious defect; for many societies have remedies for this defect long before the other. (Hart 75-76)
The remedy Hart suggests for this problem is the rule of adjudication. This rule would have the power to provide conclusive judgment on the dispute, as well as provide an effective means of implementing punishments. Apparent though, again, is the relation to the rule of recognition, because without the latter a decisive judgment could still not be given. There would be no written rules to refer to and acknowledge. This rule though, since it creates judgments on disputes, creates sources of law from the many judgments.
Much of the basic ideas of Hart’s concept have been presented and discussed, and to be noted in all of this is the critical role and interplay between primary and secondary rules. Collectively these rules form “not only the heart of a legal system, but a most powerful tool for the analysis of much that has puzzled both the jurist and the political theorist” (Hart 78). Although they may not complete the legal system, they do provide the essence of the idea of law, of what is law, and how it is created. The identity of law and the creation of it then can be seen as the creation and implementation of the secondary rules, and most importantly the rule of recognition. Without the rule of recognition nothing can come to be law, because it would not be acknowledged as authoritative. Law, then, comes into being from the need to fix the problems with the primary rules as has been discussed earlier, and from the rule of recognition. Mostly, the rule of recognition is not stated anywhere, but its “existence is shown in the way in which the particular rules are identified, either by the courts or other officials or private person or their advisers” (Hart 79). Consequently, this is why law is heavily based on the rule of recognition, because law operates on the basis of the rule of recognition, just as games of chess and other games have operative, authoritative rules that decide how the game is to be scored.
In all of these ideas of primary and secondary rules, the positivist concept of separability is quite evident, which illuminates an interesting way in which the primary rules, moral rules, and secondary rules, rules of law, can be related. The separability thesis can be obviously seen when the definition Hart provides regarding what are moral rules and at least rudimentary forms of law are applied to and contemplated with his presentation of the ideas of primary and secondary rules (Hart 72). More interestingly, Hart does not reject morality as being a part of law, as he has just identified it, as a form of primary rules, as being at the heart of law along with secondary rules. The conceptual difference has been demonstrated such that the secondary rules being created were distinct from the primary and were necessary, since the primary rules themselves were not sufficient for the success of societies (Hart 76). From both of these rules being at the center of a legal system, it can be deduced that primary rules, or morality, could possibly be used as a tool of analysis and verification of a secondary rule doing its job justifiably. Since secondary rules were created to supplement the primary, the primary rules could then be used to recheck if the secondary rules are morally just in societies. Through this process, Hart has kept morality as an important aspect of law, though showing it isn’t entirely sufficient. He has also reduced the concept of law from natural law, since in this entire process nothing regarding God is necessary, and it is perfectly possible and effective to have a legal system solely with primary and secondary rules at its heart with no notion of God.
Hart, H.L.A. “A Fresh Start.” Philosophy of Law: Eighth Edition. Feinberg and Coleman.