Lecture 3 – Hart – Kelson
Revision overview:
• Hart defines the Law as “a union of primary and secondary rules” – must know what these are
and the social habits/rules!!!
• Social habits and social rules – the latter involve obligatoriness
The reason why laws contain a specific content: “The minimum content of natural law” (Hart,
“Concept” Chapter 9 section 2) (this is a very interesting chapter which approaches Natural Law but
isn’t – Hart described himself as a “modified positivist”). You might even describe Hart as being similar
to Hobbs because he sees the problems of a legal system, that Hobbs sees the problems of life rather
without a legal system than Hobbs sees that people have tendencies of aggression and self-interest,
selfishness, and they're not particularly altruistic. And heart decides that something needs to be done
to resolve this. Chapter nine of the concept of law, he describes those subjects which a system of law
must always deal with as the remnant of natural law. There are five things that he describes and that
the law must deal with, the minimum content of natural law:
• (i) Human vulnerability
It is the case that very often human beings, people who live in a society with differing amounts
of power, power may be expressed physically, but power may also be expressed in other ways
as well, such as economically and politically. And so Hart says that because human beings are
to some extent vulnerable at times, even strong men may be ill at times or they may be asleep.
So the law has to provide some kind of protection to protect individuals against attack to kerb
the aggressive tendencies that people may otherwise have. We need to be protected. The law
performs that function.
• (ii) Approximate equality
Because the law applies to us all equally, the law assumes that people are at least
approximately equal. So that assumption has become extremely important in any system of
law that it makes demands of people or it gives benefits to people equally, regardless of status,
regardless of actual physical and political power, regardless of wealth. It's an assumption
which exists within the law and is expressed again and again, but not always with great clarity.
• (iii) Limited altruism
Very often people are limited in their altruism. They are quite happy to be altruistic towards
their own relatives, particularly towards their own children and their parents. But sometimes
people have to be prepared to put themselves out for others. For example, you may feel that
it should be a matter of law that if you witness a car accident, you should stop and you should
provide assistance. It certainly would seem to be a morally correct thing to do. And in this
way, the law therefore requires that people take account of others. Actually, interestingly
enough, in Britain, that isn't part of the law. If you see a car accident, you can just sail past and
not bother yourself. But most people would regard it as an important duty upon them, even
if it isn't raised into the status of being a legal requirement.
There are, of course, lots of other examples where people are required to do something. If
you find an expensive piece of property that appears to have been lost, it is necessary to take
it to the police and reported. If you don't do this, then you may be charged with theft by
, finding. So there are situations where people must be given a nudge by the law in order to
make sure that they are altruistic.
• (iv) Limited resources
• the resources which are available to people are limited, not everybody has them. This is
particularly so when it comes to social welfare provision, and so the law must actually set out
to distribute those resources to people as they require them. Equally, the law also must
provide a means for recouping the costs of doing this where that is appropriate. So not only
are benefits shared, but also costs, the costs are often recouped by means of tax revenues. So
all legal systems will have these elements.
• (v) Limited understanding and strength of will.
Sometimes they simply have to be forced to do things which they don't otherwise want to do
or don't understand why they should do.
• These are the five elements that give rise to what Hart calls the minimum content of natural
law. This is the amount of natural law. He says that must be included somewhere. It's not
entirely clear why he sees it as natural law, but certainly these five elements do address our
nature.
• Note: Similar to Hobbes, tendencies of aggression/selfishness need to be controlled by force
of law.
• So there is a need to develop a system of rules which sets out to “protect persons, property
& promises” – as Hart puts it.
• Primary rules (rules of conduct addressed to citizens) have an internal aspect and an external
aspect
• The internal aspect is that feeling that we are obliged as a measure of obligatory in us, involved
in the external aspect, is simply that a third party could see that because our behaviour is
regular and regulated, that there is a set of rules which we are following the defects.
• In any advanced society, problems necessarily arise with rules
1. Defect of uncertainty – hence rule of recognition
2. Defect of static rules – rules of change
3. Defect of inefficiency – rules of adjudication
Secondary rules are addressed to officials.
But as we saw with Plato, a system does not need to be bottom up, it can be top down. Plato thinks
that the ruler should, from the top down, impose their views and either punish or award the citizen in
accordance with what they deserve in order that they will learn to be good and to live a virtuous life.
Plato is not a natural lawyer. But nonetheless, the circumstances are that he sees, just like some others
have done, Austin to Hobbs as well, that the legal system starts with the dispensation of power
downwards from a monarch or leader. Hart’s view can’t cope with this. The impetus for creating the
laws and the powers that are being used in order to enforce the laws come from the people.
