Stuart M. Brown-PhilosophicalReview-1963

Review
Reviewed Work(s): The Concept of Law by H. L. A. Hart

Review by: Stuart M. Brown, Jr.
Source: The Philosophical Review , Apr., 1963, Vol. 72, No. 2 (Apr., 1963), pp. 250-253
Published by: Duke University Press on behalf of Philosophical Review
Stable URL: https://www.jstor.org/stable/2183110
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BOOK REVIEWS
THE CONCEPT OF LAW. By H. L. A. HART. New York, Oxford

University Press, i96i. Pp. x, 263. $3.40.
Professor Hart's main contention is that the law is to be elucidated in

terms of the union and interplay between two types of rules. Rules of
one type are primary. They impose duties upon the members of a
community by requiring or prohibiting certain actions. Thus, in all or
most existing communities, there are primary rules which prohibit
certain kinds of violence and deception, impose restrictions upon the
use and acquisition of certain kinds of objects, and require compensa-
tion for certain kinds of bodily or other harm. But in the circumstances
under which social controls are achieved by rules, a regime of primary
rules unsupplemented by rules of any other type would be uncertain,
static, and inefficient. It would be uncertain, because there is no
settled way of recognizing or identifying the primary rules. It would be
static, because there is no provision for changing the rules, of adopting
new ones and amending or repealing old ones. It would be inefficient,
because there is no procedure for adjudicating cases which arise under
the primary rules. In order to remedy defects of these kinds, there must
be secondary rules: rules of recognition, which provide criteria for identi-
fying the primary rules; rules of change, which empower some individual
or body of individuals to modify primary rules; and rules of adjudication,
which specify procedures for hearing and deciding cases. The concept
of law, Hart contends, is to be elucidated in terms of these three sorts
of secondary rules conjoined with the primary ones. Without the con-
cept of a rule, "we cannot hope to elucidate even the most elementary
forms of law" (p. 78). In terms of this union of primary and secondary
rules, Hart undertakes to elucidate the concept of law and some of the
persistent problems in philosophy of law.
The idea of a rule actually employed by Hart to elucidate law is
clear, though somewhat complex. Examples are rules of games and
mariners' rules of the road. In a game like college football, one can
distinguish between the primary and the secondary rules. Some primary
rules impose duties, like the rule prohibiting clipping; others define
the conditions for scoring points. Conjoined with these primary rules
are secondary rules of recognition, change, and adjudication. To
formulate or to cite these rules is not to make empirical generalizations
about observed regularities of human behavior. In all of these respects,
the analogy with rules of law is perfect. Some legal rules impose duties,
like the rules of prohibiting certain kinds of violence; others specify
the conditions for obtaining certain ends, like the rules specifying
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BOOK REVIEWS
how wills must be written and witnessed. With these are conjoined
the three sorts of secondary rules. None of these primary or secondary
rules, from the point of view of those subject to them, is a mere empirical
generalization. So far, there is nothing specially perplexing about this
idea of a rule, and the concept of law may, perhaps with profit, be
defined in terms of it.
Surprisingly, Hart does define law in just these terms. This is
surprising, because in stating his problem and talking about it, he
everywhere insists that law cannot profitably be defined and that, in
particular, it cannot be defined in terms of rules. In the special section
which he devoted to definition (pp. 13-17) he makes three main
points. (i) The concept of law cannot be defined in the traditional
manner, because it is an open concept. (2) If it were definable in the
traditional way per genus et differentiam, the genus would be rules of
behavior. But any such definition would fail, because the idea of a rule
is as perplexing as the idea of law itself. And (3), although there are
methods of defining other than the traditional one, no formula concise
enough to count as definition can satisfactorily answer the question
"What is law?"
Nonetheless, Hart defines law; that is, he specifies the necessary and
sufficient conditions for the use of the concept. A set of primary rules is
one necessary condition. A set of secondary rules is another. These two
conditions together are sufficient: the satisfaction of them entails a
genuine case of the concept. That Hart defines the concept is implied
by the manner in which he treats it. But at one point, he is quite
explicit about it:
There are therefore two minimum conditions necessary and sufficient for
existence of a legal system. On the one hand those rules of behavior which are
valid according to the system's ultimate criteria of validity must be generally
obeyed, and, on the other hand, its rules of recognition specifying the criteria
of legal validity and its rules of changes and adjudication must be effectively
accepted as common public standards of official behavior by its officials [p. I I 3].
It is quite idle to deny that this is a definition, or that it is concise

enough to count as one, or that it answers the question "What is law ?"
It is sufficiently concise. In the form of a definition, it purports to
answer the question. And, says Hart, "if we stand back and consider
the structure which has resulted from the combination of primary rules
of obligation with the secondary rules of recognition, change and
adjudication, it is plain that we have here 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" (p. 95).
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BOOK REVIEWS
But if what I have said here is correct, the concept of law in Hart's
treatment is confused. He describes the concept in one way when he is
talking about his problem, whereas his solution describes it in a different
and incompatible way. The problem, as Hart states it, is to elucidate a
concept which cannot profitably be defined and, in particular, cannot
be defined in terms of rules. The problem, as he solves it, is to formulate
a definition in precisely these terms. On the first account, the concept
of law is open, and the idea of a rule obscure and perplexing. On the
second, the concept of law is closed, and the idea of a combination of
primary and secondary rules is apparently clear enough to provide a
most powerful tool for analysis. Something has gone wrong. As the
following statement made at the beginning of his last chapter shows,
the difficulty persists throughout the book:
Though the idea of the union of primary and secondary rules has these virtues
[that it permits the multiple relationships between law, coercion, and morality
to be seen and considered afresh], and though it would accord with usage to
treat the existence of this characteristic union of rules as a sufficient condition
for the application of the expression "legal system," we have not claimed that
the word "law" must be defined in its terms. It is because we make no such
claim to identify or regulate in this way the use of words like "law" or "legal,"
that this book is offered as an elucidation of the concept of law, rather than a
definition of "law" [p. 208].
The difficulty is that Hart does not establish and makes no attempt
to establish either the precise sense in which the concept of law is
assumed to be open or the precise bearing which this important fact
is assumed to have upon the issues treated systematically in the book.
In consequence, he fails to see that if his treatment of the issues is
correct the concept cannot in any clear sense be open in respect to
them. One important issue, to which Hart devotes the first quarter of
his book, is the theory of law as coercive orders. He subjects the theory
to sustained, illuminating, and devastating criticism. The theory is
false, on his account, because it is inapplicable to any genuine case of
law whatsoever. If this theory could account for some genuine cases
of law and were false only because it could not account for all cases,
then one might argue that the concept of law is open in respect to what
is at issue and that the theory is defective because it treats the concept as
closed. But clearly this is not what Hart claims to be the case. In
respect to what is at issue between this theory and his own, the concept
of law is closed. It is closed also in respect to what is at issue in his
account of the contention that there is some logically necessary con-
nection between law and morality. If one held that, in some but not
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all cases, iniquitous statutes and decisions lose their status as valid
law, one might argue that the concept of law is open on the point at
issue. But this is not what Hart holds or argues. He admits the obvious,
that we can refuse if we wish to apply the word "law" to iniquitous
statutes and decisions and can insist that iniquitous "laws" are not
laws properly so-called. He insists, however, that the cost of doing this
is theoretical and moral confusion (pp. 203-207). Whether or not this
is true, to insist that it is implies that the concept of law in respect to
this point is closed. Finally, if it is true that all legal rules are at some
point intrinsically indeterminate in application and have an open
texture permitting judges to exercise discretion and a creative function,
as Hart contends (pp. I23-I25), then this is a characteristic feature of
law concerning which the concept of law itself is not open. The sense
in which legal rules have an open texture is not the sense in which the
concept of law has or could have one. A legal rule has an open texture
in that the question "How does the rule apply to this particular case?"
may sometimes be open and in genuine doubt until the judge answers
it. But the judge's answer closes the matter: within the system, the
question of the application of the rule to that particular case is settled
once and for all. The question "Are legal rules open textured ?" is not
analogous. There is no one in the privileged position of a judge
empowered to settle the matter by decision. There is nothing open to
be settled by decision. There is merely a question whose answer is
to be given in terms of facts about legal rules and how they are used.
And so long as there is a definite answer, whether or not we happen
to know what it is, the concept of law with regard to it is closed.
Unless the concept of law is open in ways which Hart has not shown
and in ways which have some obvious bearing upon solutions to the
persistent problems of jurisprudence, it is only confusing to stress the
fact of openness and to emphasize elucidation, for which there are no
clear criteria of success, over definition.
STUART M. BROWN, JR.
Cornell University
THE JUDICIAL DECISION: TOWARD A THEORr OF LEGAL

JUSTIFICATION. By RICHARD A. WASSERSTROM. Stanford,
Stanford University Press, i96i. Pp. I97. $5.00.
Professor Wasserstrom asks: How should judges decide cases brought
before them for adjudication? As legal philosophers have seldom dealt
directly with this important question, his generally clear and sensible
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Review

Reviewed Work(s): The Concept of Law by H. L. A. Hart

Stable URL: https://www.jstor.org/stable/2183110

This content downloaded from

THE CONCEPT OF LAW. By H. L. A. HART. New York, Oxford

Professor Hart's main contention is that the law is to be elucidated in

This content downloaded from

It is quite idle to deny that this is a definition, or that it is concise

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THE JUDICIAL DECISION: TOWARD A THEORr OF LEGAL

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