Summary of "The Concept of Law"

 

Summary of

The Concept of Law

LA Hart, with a postscript edited by Penelope A. Bulloch and Joseph Raz

Summary written by T.A. O'Lonergan, Conflict Research Consortium


Citation: The Concept of Law, HLA Hart, ( Clarendon Press, 1961), with a postscript edited by Penelope A. Bulloch and Joseph Raz, 307pp.


The Concept of Law has had far reaching effects, not only on the thought and study of jurisprudence founded upon English common law, but on political and moral theory as well. It is a philosophical examination of the basis for law.

The Concept of Law has been required reading in multiple philosophy courses and PSCI 5086/7086 as taught by Professor Charles Lester. This work will be of interest to those who seek an understanding of the philosophical basis for law. The work is constituted by ten chapters, each addressing an aspect of law. The first chapter addresses persistent questions and perplexities of legal theory. Hart addresses three questions in this first chapter: "How does law differ from and how is it related to orders backed by threats? How does legal obligation differ from, and how is it related to, moral obligation? What are rules and to what extent is law an affair of rules?". Toward the end of an answer to these questions, Hart offers an answer to the question; What is law?. Chapter two examines laws, commands and orders. Specifically the author examines varieties of imperatives and law as coercive orders. This is followed by a discussion of the variety of laws, their content, range of application and modes of origin.

Chapter four addresses the relationship between sovereign and subject. Hart discusses the habit of obedience and the continuity and persistence of law. The chapter concludes with an examination of legal limitations on legislative power and the sovereign behind the legislature. Hart proposes that law is a union of primary and secondary rules. He discusses the idea of obligation and the elements of law. Chapter six offers Hart's assertions regarding the foundations of a legal system: the rule of recognition and legal validity. He also poses some new questions which arise out of his assertions and examines the pathology of a legal system. Chapter six addresses formalism and rule-skepticism. Hart examines: the open texture of law, the varieties of rule-skepticism, judicial decision and uncertainty in the rule of recognition.

The subsequent two chapters address the relationships between justice and morality and laws and morals respectively. The former includes Hart's assertions concerning: principles of justice, moral and legal obligation, and moral ideals and social criticism. The latter chapter examines: natural law and legal positivism, the minimum content of natural law, legal validity and moral value. The final chapter focuses upon international law. The topics discussed include: sources of doubt, obligations and sanctions, the sovereignty of the states and international law and morality.

The postscript authored by Bulloch and Raz follows the text of the second edition. Until the time of his death, Hart was at work on a chapter to be appended to his original text. Therein, he had hoped to address the tremendous amount of commentary and criticism that The Concept of Law had prompted. Most importantly he had hoped to acknowledge the well-founded criticism and offer adjustments to his original work which would accommodate these criticisms. Sadly, Hart died before this task was complete. The editors reviewed and completed Hart's work in a conceptually integral way which is properly appended to the text as additional work done by Hart, but edited after his death.

The Concept of Law is a thorough-going examination of the philosophical foundations of the Western legal tradition. Much of the work in the succeeding thirty years since its publication hold Hart's work implicit in discussions of philosophy of law.