Plot Summary
The Concept of Law
H. L. A. Hart
The Concept of Law
Nonfiction | Book | Adult | Published in 1961
Plot Summary
The Concept of Law (1961) by English legal philosopher Herbert Lionel Adolphus (H.L.A.) Hart revisits foundational philosophical tracts regarding law to analyze, reject, or expand their theories of law and social control. He ultimately concludes that the idea of law is a social construction with no direct tie to an equal, fair, and prosperous society. After graduating from Oxford, Hart worked for MI5 (Britain’s FBI) for several years, before becoming Professor of Jurisprudence at Oxford. (Jurisprudence is the study of law). Several historians and theorists consider The Concept of Law to be the most important work on jurisprudence of the 20th century.
Its themes include the nebulous nature of law, reasons behind force and compliance, as well as the development and coercion of morality. Hart, who died in 1992, remains an impactful figure in several fields, including law, psychology, sociology, and religious studies where author Karen Armstrong considers him hugely influential.
In the preface, Hart contends that law is a form of social control, but it is more nuanced that brutal enforcement. There are laws in the formal sense—trial rooms, judges, statutes—but there are also many forms of informal laws.
Hart critiques the work of the noted lawyer and professor John Austin (1790-1859). In particular, Hart dissects Austin’s theory of “Command Law.” This concept posits that individuals follow laws only because there are consequences, i.e., there is some visible force near them that compels them to act in a particular way. People generally fear the law because they feel that it may be applied toward all of their actions. Hart calls this tendency “the internal view of law.”
Hart agrees that the presence of force does, in fact, command large swaths of people to do something, but he adds that disobeying certain laws doesn’t necessarily mean there are legal consequences: sometimes the punishment is as simple as a loss of social prestige. This dynamic is known as “the rule of recognition.”
Also, just because someone has the force to act on their threats, this doesn’t mean that people will follow their commands. Hart gives the example of a bank robber, someone who in a specific time and space “commands” the room, but who is recognized by virtually no as the law.
Hart delves further into the idea of informal “laws” by looking at social “habit” and social “rule.” A social habit is a slightly odd action, like cracking one’s knuckles loudly in an elevator. Breaking a social rule is considered more of a real offense, although there is no formal punishment, e.g., not standing up for the pledge of allegiance. People internalize all of these rules over the years to the point that they appear to be natural.
In general, the idea of law is too nuanced to be accurately encapsulated by Austin’s Command Law Theory. There is not one name that can capture all of the mechanics of law. So for the rest of the book, Hart parses out specific definitions to adumbrate the concept of law.
For starters, “rules” is too large a term and needs to be broken down to comprehensively describe reality. Primary rules dictate behavior, such as the regulation that in the U.S. one must be 21 or older to consume alcohol; secondary rules grant an authority (The Justice Department, lawyers, judges, police officers) the right to create, interpret, apply, or edit new laws as necessary.
The fact that modern states have secondary laws means that they can continually improve the system. It is also an indirect admission that laws can never be thorough enough to properly adjudicate all events--they must be continually improved, and often require the oversight of a judge or lawyer. When secondary rules are appropriately applied, the law will be applied equally amongst a population. In most democracies, this encourages open and free societies, though in some countries, secondary laws will only be used to forward oppressive regimes.
In one of his biggest points, Hart writes that laws written by humans are entirely arbitrary. If the human-made laws happen to overlap with natural law (a theory forwarded by Thomas Aquinas, e.g., an impulse not to inflict pain on people), it is entirely a coincidence. Law is “law” only because a recognized, powerful, and authoritative body has proclaimed that such and such is the law. This view is known as logical positivism. Law is whatever is “posited” as fact. Therefore, within the judicial system, there is always room for improvement, i.e., to set forward laws that should be in place for a more just society.
Hart saw legal systems as, ideally, being a collection of codified, logical statements that govern society without relying on social considerations, such as the wealthy status of an individual or that a woman is pregnant.
According to Hart, moral statements are arrived at through feelings; one cannot use logic to arrive at a moral statement. At first glance, this appears to be a negative thing, but Hart contends that this is actually a positive: morality cannot, like law, be changed by a single judge or a group of legislators.
Morality has no place in official law books. With that said, Hart does see morality working through social habits and social rules.
Its themes include the nebulous nature of law, reasons behind force and compliance, as well as the development and coercion of morality. Hart, who died in 1992, remains an impactful figure in several fields, including law, psychology, sociology, and religious studies where author Karen Armstrong considers him hugely influential.
In the preface, Hart contends that law is a form of social control, but it is more nuanced that brutal enforcement. There are laws in the formal sense—trial rooms, judges, statutes—but there are also many forms of informal laws.
Hart critiques the work of the noted lawyer and professor John Austin (1790-1859). In particular, Hart dissects Austin’s theory of “Command Law.” This concept posits that individuals follow laws only because there are consequences, i.e., there is some visible force near them that compels them to act in a particular way. People generally fear the law because they feel that it may be applied toward all of their actions. Hart calls this tendency “the internal view of law.”
Hart agrees that the presence of force does, in fact, command large swaths of people to do something, but he adds that disobeying certain laws doesn’t necessarily mean there are legal consequences: sometimes the punishment is as simple as a loss of social prestige. This dynamic is known as “the rule of recognition.”
Also, just because someone has the force to act on their threats, this doesn’t mean that people will follow their commands. Hart gives the example of a bank robber, someone who in a specific time and space “commands” the room, but who is recognized by virtually no as the law.
Hart delves further into the idea of informal “laws” by looking at social “habit” and social “rule.” A social habit is a slightly odd action, like cracking one’s knuckles loudly in an elevator. Breaking a social rule is considered more of a real offense, although there is no formal punishment, e.g., not standing up for the pledge of allegiance. People internalize all of these rules over the years to the point that they appear to be natural.
In general, the idea of law is too nuanced to be accurately encapsulated by Austin’s Command Law Theory. There is not one name that can capture all of the mechanics of law. So for the rest of the book, Hart parses out specific definitions to adumbrate the concept of law.
For starters, “rules” is too large a term and needs to be broken down to comprehensively describe reality. Primary rules dictate behavior, such as the regulation that in the U.S. one must be 21 or older to consume alcohol; secondary rules grant an authority (The Justice Department, lawyers, judges, police officers) the right to create, interpret, apply, or edit new laws as necessary.
The fact that modern states have secondary laws means that they can continually improve the system. It is also an indirect admission that laws can never be thorough enough to properly adjudicate all events--they must be continually improved, and often require the oversight of a judge or lawyer. When secondary rules are appropriately applied, the law will be applied equally amongst a population. In most democracies, this encourages open and free societies, though in some countries, secondary laws will only be used to forward oppressive regimes.
In one of his biggest points, Hart writes that laws written by humans are entirely arbitrary. If the human-made laws happen to overlap with natural law (a theory forwarded by Thomas Aquinas, e.g., an impulse not to inflict pain on people), it is entirely a coincidence. Law is “law” only because a recognized, powerful, and authoritative body has proclaimed that such and such is the law. This view is known as logical positivism. Law is whatever is “posited” as fact. Therefore, within the judicial system, there is always room for improvement, i.e., to set forward laws that should be in place for a more just society.
Hart saw legal systems as, ideally, being a collection of codified, logical statements that govern society without relying on social considerations, such as the wealthy status of an individual or that a woman is pregnant.
According to Hart, moral statements are arrived at through feelings; one cannot use logic to arrive at a moral statement. At first glance, this appears to be a negative thing, but Hart contends that this is actually a positive: morality cannot, like law, be changed by a single judge or a group of legislators.
Morality has no place in official law books. With that said, Hart does see morality working through social habits and social rules.
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