Reading HLA Hart's 'The Concept of Law'

Luís Duarte d'Almeida, James Edwards, Andrea Dolcetti, Luís Duarte d'Almeida, James Edwards, Andrea Dolcetti

• Publisher: Hart Publishing
• Year: 2014
• ISBN:
  9781782252160
• Edition: 1
• Topic: Jura
• Subtopic: Rechtswissenschaft

More than 50 years after it was first published, The Concept of Law remains the most important work of legal philosophy in the English-speaking world. In this volume, written for both students and specialists, 13 leading scholars look afresh at Hart's great book. Unique in format, the volume proceeds sequentially through all the main ideas in The Concept of Law: each contributor addresses a single chapter of Hart's book, critically discussing its arguments in light of subsequent developments in the field. Four concluding essays assess the continued relevance for jurisprudence of the 'persistent questions' identified by Hart at the beginning of The Concept of Law. The collection also includes Hart's 'Answers to Eight Questions', written in 1988 and never before published in English. Contributors include Timothy Endicott, Richard HS Tur, Pavlos Eleftheriadis, John Gardner, Grant Lamond, Nicos Stavropoulos, Leslie Green, John Tasioulas, Jeremy Waldron, John Finnis, Frederick Schauer, Pierluigi Chiassoni and Nicola Lacey.

1

Hart’s Readers

LUÍS DUARTE D’ALMEIDA, JAMES EDWARDS AND ANDREA DOLCETTI

I. TO THE STUDENT

I‘N LAW AS elsewhere, we can know and yet not understand.’ Thus began HLA Hart’s 1953 inaugural lecture as Professor of Jurisprudence at Oxford.¹ To promote, not principally our knowledge, but our understanding of law: this was how Hart saw his task. The Concept of Law opens on a similar note. Hart’s ‘aim in this book’, he announces, is ‘to further the understanding of law, coercion, and morality as different but related social phenomena’.²

The point is not that there is some radical divide between knowing and understanding. To further one’s understanding, of law or anything else, is to further one’s knowledge. The point is that there may be things we simultaneously know and yet do not fully understand. To further one’s understanding of something is to further one’s knowledge in depth, as it were, rather than in breadth. Hart expands on this in chapter I of The Concept of Law, but he had put matters more straightforwardly in a 1957 essay:

[I]t is characteristic not only of the use of legal concepts, but also of many concepts in other disciplines and in ordinary life, that we may have adequate mastery of them for the purpose of their day-to-day use; and yet they may still require elucidation; for we are puzzled when we try to understand our own conceptual apparatus. We may know how to use these concepts, but we cannot say how or describe how we do this in ways which are intelligible to others and indeed to ourselves. We know, and yet do not fully understand, even quite familiar features of legal thinking – much in the way perhaps that a man may know his own way about a familiar town by rote without being able to draw a map of it or explain to others how he finds his way about the town.³

In a sense, then, Hart does not in his work set out to tell his readers new things about law. He sets out to tell them new things about things they already know about law.⁴ It follows that if one is to count oneself among Hart’s intended readers there is a certain body of knowledge about law that one must already have. This does not mean that The Concept of Law is a book addressed to experts, a book for trained lawyers only. For the body of knowledge about law with which Hart is concerned is a body of general rather than specialised knowledge. It is general, in fact, in at least two ways. First, it is a body of knowledge about law that Hart takes ‘virtually everyone’ (‘any educated man’, at any rate) to have.⁵ Second, it is a body of knowledge about law in general, not about the distinctive details of any particular legal system at any particular moment. It is knowledge about the ‘structure’ and ‘salient features’, as he often puts it,⁶ of legal systems everywhere.

What propositions form part of this body of ‘common knowledge’?⁷ Here is a list. (1) The laws of any country ‘form some sort of system’.⁸ (2) Legal systems are in all countries ‘broadly similar in structure’.⁹ Among the points of similarity, the ‘most prominent’ is that (3) law’s existence ‘means that certain kinds of human conduct are no longer optional but in some sense obligatory’.¹⁰ Another is that (4) ‘[t]he legal system of a modern state is characterized by a certain kind of supremacy within its territory and independence of other systems’.¹¹ And (5) legal systems in all countries also similarly comprise ‘rules of many different types’,¹² namely

(i) rules forbidding or enjoining certain types of behaviour under penalty; (ii) rules requiring people to compensate those whom they injure in certain ways; (iii) rules specifying what must be done to make wills, contracts or other arrangements which confer rights and create obligations; (iv) courts to determine what the rules are and when they have been broken; (v) a legislature to make new rules and abolish old ones.¹³

‘Familiar’ as these facts may be,¹⁴ ‘even skilled lawyers’, Hart says, ‘cannot explain and do not fully understand’ much about them.¹⁵ This may strike you as a somewhat immodest claim. How can Hart know what his readers, skilled lawyers or otherwise, do and do not understand? And supposing he were right, why should anyone bother to ‘understand’ those facts any better? If even professional jurists may happily go about their lives equipped with whatever little ‘understanding’ of law Hart is willing to grant them – what reason could one have for developing more?

To think along these lines is to miss the point of Hart’s endeavour. He is not telling his readers that they need to improve their current understanding of law. Perhaps that common body of knowledge does contain all one needs to know about law in general. After all, what one needs to know about law is dependent on one’s own goals. We can be sure, however, that the common body of knowledge is relatively superficial. How do we know that? Because for more than two millennia, as Hart remarks, many ‘serious thinkers’¹⁶ have been trying precisely to increase their understanding (as well as ours) of law in general – and all have felt recurrently compelled to tackle the same issues. This is solid evidence, thinks Hart, not only that there are questions to which law seems ‘naturally’¹⁷ to give rise, but that such questions are far from easy to put to rest. The ‘deep perplexity’ which has kept these questions alive is certainly not a product of ‘ignorance or forgetfulness or inability to recognize the phenomena to which the word “law” commonly refers’.¹⁸ It is a product of the fact that reflection on the body of knowledge we share about law soon gives rise to many puzzles. And this is why Hart thinks there will be things about law his readers do not fully understand.

To see Hart’s point, consider the three ‘persistent questions’ he identifies at the outset of The Concept of Law :

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?¹⁹

Take this last query – a good example of what Hart means about knowing something and yet not fully understanding it. We know, it seems saf...