legalphilomidhart

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Explain the difference between making a prediction and giving a reason.

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How can law provide individuals with faculties for realizing their wishes? (27)

But there are important classes of law where this analogy with orders backed by threats altogether fails, since they perform a quite different social function. Legal rules defining the ways in which valid contracts or wills or marriages are made do not require persons to act in certain ways whether they wish to or not. Such laws do not impose duties or obligations. Instead, they provide individuals with facilities for realizing their wishes, by conferring legal powers upon them to create, by certain specified procedures and subject to certain conditions, structures of rights and duties within the coercive framework of the law.

1. Why does Hart think that answers to the question "What is law?" have been "diverse, strange, and even paradoxical?" (1-2)

Just read page 1-2 in the textbook for this one

How is the rule of recognition like the standard metre bar in Paris? (109)

Neither of these two presuppositions are well described as 'assumptions' of a 'validity' which cannot be demonstrated. We only need the word 'validity', and commonly only use it, to answer questions which arise within a system of rules where the status of a rule as a member of the system depends on its satisfying certain criteria provided by the rule of recognition. No such question can arise as to the validity of the very rule of recognition which provides the criteria; it can neither be valid nor invalid but is simply accepted as appropriate for use in this way. To express this simple fact by saying darkly that its validity is 'assumed but cannot be demonstrated', is like saying that we assume, but can never demonstrate, that the standard metre bar in Paris which is the ultimate test of the correctness of all measurement in metres, is itself correct.

How has an uncritical understanding of sovereignty affected the debate concerning international law? (221-224)

READ THESE PAGES: It is worth observing that an uncritical use of the idea of sovereignty has spread similar confusion in the theory both of municipal and international law, and demands in both a similar corrective. Under its influence, we are led to believe that there must in every municipal legal system be a sovereign legislator subject to no legal limitations; just as we are led to believe that international law must be of a certain character because states are sovereign and incapable of legal limitation save by themselves. In both cases, belief in the necessary existence of the legally unlimited sovereign prejudges a question which we can only answer when we examine the actual rules. The question for municipal law is: what is the extent of the supreme legislative authority recognized in this system? For international law it is: what is the maximum area of autonomy which the rules allow to states?

What are the 3 categories of objections to Austin's theory? (26)

The objections we have mentioned fall into three main groups. Some of them concern the content of laws, others their mode of origin, and others again their range of application. All legal systems, at any rate, seem to contain laws which in respect of one or more of these three matters diverge from the model of general orders which we have set up. In the rest of this chapter we shall consider separately these three types of objection. We shall leave to the next chapter a more fundamental criticism that apart from these objections on the score of content, mode of origin, and range of application, the whole conception of a supreme and independent sovereign habitually obeyed, on which the model rests, is misleading, since there is little in any actual legal system which corresponds to it.

What does Hart mean by ultimate rule? (105)

The rule of recognition providing the criteria by which the validity of other rules of the system is assessed is in an important sense, which we shall try to clarify, an ultimate rule: and where, as is usual, there are several criteria ranked in order of relative subordination and primacy one of them is supreme. These ideas of the ultimacy of the rule of recognition and the supremacy of one of its criteria merit some attention. It is important to disentangle them from the theory, which we have rejected, that somewhere in every legal system, even though it lurks behind legal forms, there must be a sovereign legislative power which is legally unlimited.

The first sentence of the second paragraph on p. 24 is a good summary of what Hart has said so far about Austin's theory.

The same negative characterization of the Queen in Parliament, as not habitually obeying the orders of others, roughly defines the notion of independence which we use in speaking of the separate legal systems of different countries

Why is it odd to say that you have an obligation to obey the rules of grammar? (86)

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What is the difference between saying that a law is morally bad and that it is unjust? (166-169)

morally bad may make someone do something immoral. unjust does not balance out the proportion or treat classes of citizens alike.

What do you think that Hart means by natural language? (128)

o far we have presented this, in the case of legislation, as a general feature of human language; uncertainty at the borderline is the price to be paid for the use of general classifying terms in any form of communication concerning matters of fact. Natural languages like English are when so used irreducibly open-textured. It is, however, important to appreciate why, apart from this dependence on language as it actually is, with its characteristics of open texture, we should not cherish, even as an ideal, the conception of a rule so detailed that the question whether it applied or not to a particular case was always settled in advance, and never involved, at the point of actual application, a fresh choice between open alternatives. Put shortly, the reason is that the necessity for such choice is thrust upon us because we are men, not gods. It is a feature of the human predicament (and so of the legislative one) that we labour under two connected handicaps whenever we seek to regulate, unambiguously and in advance, some sphere of conduct by means of general standards to be used without further official direction on particular occasions. The first handicap is our relative ignorance of fact: the second is our relative indeterminacy of aim.

How does this distinction explain the common predictive theory? (104)

A grasp of the normal contextual connection between the internal statement that a given rule of a system is valid and the external statement of fact that the system is generally efficacious, will help us see in its proper perspective the common theory that to assert the validity of a rule is to predict that it will be enforced by courts or some other official action taken. In many ways this theory is similar to the predictive analysis of obligation which we considered and rejected in the last chapter. In both cases alike the motive for advancing this predictive theory is the conviction that only thus can metaphysical interpretations be avoided: that either a statement that a rule is valid must ascribe some mysterious property which cannot be detected by empirical means or it must be a prediction of future behaviour of officials. In both cases also the plausibility of the theory is due to the same important fact: that the truth of the external statement of fact, which an observer might record, that the system is generally efficacious and likely to continue so, is normally presupposed by anyone who accepts the rules and makes an internal statement of obligation or validity. The two are certainly very closely associated. Finally, in both cases alike the mistake of the theory is the same: it consists in neglecting the special character of the internal statement and treating it as an external statement about official action.

What does Hart say about the legislative power? (31)

A statute conferring legislative power on a subordinate legislative authority similarly exemplifies a type of legal rule that cannot, except at the cost of distortion, be assimilated to a general order. Here too, as in the exercise of private powers, conformity with the conditions specified by the rules conferring the legislative powers is a step which is like a 'move' in a game such as chess; it has consequences definable in terms of the rules, which the system enables persons to achieve. Legislation is an exercise of legal powers 'operative' or effective in creating legal rights and duties. Failure to conform to the conditions of the enabling rule makes what is done ineffective and so a nullity for this purpose.

What does Hart say about a rule of recognition and the international law? (235-237)

Again once we emancipate ourselves from the assumption that international law must contain a basic rule, the question to be faced is one of fact. What is the actual character of the rules as they function in the relations between states? Different interpretations of the phenomena to be observed are of course possible; but it is submitted that there is no basic rule providing general criteria of validity for the rules of international law, and that the rules which are in fact operative constitute not a system but a set of rules, among which are the rules providing for the binding force of treaties. It is true that, on many important matters, the relations between states are regulated by multilateral treaties, and it is sometimes argued that these may bind states that are not parties. If this were generally recognized, such treaties would in fact be legislative enactments and international law would have distinct criteria of validity for its rules. A basic rule of recognition could then be formulated which would represent an actual feature of the system and would be more than an empty restatement of the fact that a set of rules are in fact observed by states. Perhaps international law is at present in a stage of transition towards acceptance of this and other forms which would bring it nearer in structure to a municipal system. If, and when, this transition is completed the formal analogies, which at present seem thin and even delusive, would acquire substance, and the sceptic's last doubts about the legal 'quality' of international law may then be laid to rest. Till this stage is reached the analogies are surely those of function and content, not of form. Those of function emerge most clearly when we reflect on the ways in which international law differs from morality, some of which we examined in the last section. The analogies of content consist in the range of principles, concepts, and methods which are common to both municipal and international law, and make the lawyers' technique freely transferable from the one to the other. Bentham, the inventor of the expression 'international law', defended it simply by saying that it was 'sufficiently analogous'1 to municipal law. To this, two comments are perhaps worth adding. First, that the analogy is one of content not of form: secondly, that, in this analogy of content, no other social rules are so close to municipal law as those of international law.

What are the three points that Hart makes about the "honest use of precedent?" (134-135)

Any honest description of the use of precedent in English law must allow a place for the following pairs of contrasting facts. First, there is no single method of determining the rule for which a given authoritative precedent is an authority. Notwithstanding this, in the vast majority of decided cases there is very little doubt. The head-note is usually correct enough. Secondly, there is no authoritative or uniquely correct formulation of any rule to be extracted from cases. On the other hand, there is often very general agreement, when the bearing of a precedent on a later case is in issue, that a given formulation is adequate. Thirdly, whatever authoritative status a rule extracted from precedent may have, it is compatible with the exercise by courts that are bound by it of the following two types of creative or legislative activity. On the one hand, courts deciding a later case may reach an opposite decision to that in a precedent by narrowing the rule extracted from the precedent, and admitting some exception to it not before considered, or, if considered, left open. This process of 'distinguishing' the earlier case involves finding some legally relevant difference between it and the present case, and the class of such differences can never be exhaustively determined. On the other hand, in following an earlier precedent the courts may discard a restriction found in the rule as formulated from the earlier case, on the ground that it is not required by any rule established by statute or earlier precedent. To do this is to widen the rule. Notwithstanding these two forms of legislative activity, left open by the binding force of precedent, the result of the English system of precedent has been to produce, by its use, a body of rules of which a vast number, of both major and minor importance, are as determinate as any statutory rule. They can now only be altered by statute, as the courts themselves often declare in cases where the 'merits' seem to run counter to the requirements of the established precedents.

Why is generality important? (21)

Basically, when a gunman leaves and puts the gun away, their power leaves. Law has a general power that even in the absence of a present threat to one's life, it still holds power.

What does Hart mean by the internal and external points of view? (89)

But they will not need forms of expression like 'I had an obligation' or 'You have an obligation' for these are required only by those who see their own and other persons' conduct from the internal point of view. What the external point of view, which limits itself to the observable regularities of behaviour, cannot reproduce is the way in which the rules function as rules in the lives of those who normally are the majority of society. These are the officials, lawyers, or private persons who use them, in one situation after another, as guides to the conduct of social life, as the basis for claims, demands, admissions, criticism, or punishment, viz., in all the familiar transactions of life according to rules. For them the violation of a rule is not merely a basis for the prediction that a hostile reaction will follow but a reason for hostility

What does Hart mean when he says that "the rules are constitutive of the sovereign?" (76)

Can we then say that these rules are just parts of the description of the population's habits of obedience? In a simple case where the sovereign is a single person whom the bulk of the society obey if, and only if, he gives his orders in a certain form, e.g. in writing signed and witnessed, we might say (subject to the objections made in Section 1 to the use here of the notion of habit) that the rule that he must legislate in this fashion is just part of the description of the society's habit of obedience: they habitually obey him when he gives orders in this way. But, where the sovereign person is not identifiable independently of the rules, we cannot represent the rules in this way as merely the terms or conditions under which the society habitually obeys the sovereign. The rules are constitutive of the sovereign, not merely things which we should have to mention in a description of the habits of obedience to the sovereign. So we cannot say that in the present case the rules specifying the procedure of the electorate represent the conditions under which the society, as so many individuals, obeys itself as an electorate; for 'itself as an electorate' is not a reference to a person identifiable apart from the rules. It is a condensed reference to the fact that the electors have complied with rules in electing their representatives. At the most we might say (subject to the objections in Section 1) that the rules set forth the conditions under which the elected persons are habitually obeyed: but this would take us back to a form of the theory in which the legislature, not the electorate, is sovereign, and all the difficulties, arising from the fact that such a legislature might be subject to legal limitations on its legislative powers, would remain unsolved.

Hart is, like Austin, a legal positivist. He believes that law is a social convention and that conventional laws are separable from morality. Hart, however, disagrees with Austin's form of legal positivism. His own theory, articulated in The ______________ has become the dominant legal theory in the Anglo-American world.Hart strives for meticulous clarity in his writing.

Concept of Law

What is the relationship between the continuity of legislative authority and the acceptance of a rule? (59)

Consideration of the simple legal worlds of Rex I and Rex II is perhaps enough to show that the continuity of legislative authority which characterizes most legal systems depends on that form of social practice which constitutes the acceptance of a rule, and differs, in the ways we have indicated, from the simpler facts of mere habitual obedience. We may summarize the argument as follows. Even if we concede that a person, such as Rex, whose general orders are habitually obeyed, may be called a legislator and his orders laws, habits of obedience to each of a succession of such legislators are not enough to account for the right of a successor to succeed and for the consequent continuity in legislative power. First, because habits are not 'normative'; they cannot confer rights or authority on anyone. Secondly, because habits of obedience to one individual cannot, though accepted rules can, refer to a class or line of future successive legislators as well as to the current legislator, or render obedience to them likely. So the fact that there is habitual obedience to one legislator neither affords grounds for the statement that his successor has the right to make law, nor for the factual statement that he is likely to be obeyed.

Has natural law always been associated with divine governance? (187)

Critics like Bentham and Mill, who most fiercely attacked Natural Law, often attributed their opponents' confusion between these distinct senses of law, to the survival of the belief that the observed regularities of nature were prescribed or decreed by a Divine Governor of the Universe. On such a theocratic view, the only difference between the law of gravity and the Ten Commandments—God's law for Man—was, as Blackstone asserted, the relatively minor one that men, alone of created things, were endowed with reason and free will; and so unlike things, could discover and disobey the divine prescriptions. Natural Law has, however, not always been associated with belief in a Divine Governor or Lawgiver of the universe, and even where it has been, its characteristic tenets have not been logically dependent on that belief. Both the relevant sense of the word 'natural', which enters into Natural Law, and its general outlook minimizing the difference, so obvious and so important to modern minds, between prescriptive and descriptive laws, have their roots in Greek thought which was, for this purpose, quite secular. Indeed, the continued reassertion of some form of Natural Law doctrine is due in part to the fact that its appeal is independent of both divine and human authority, and to the fact that despite a terminology, and much metaphysics, which few could now accept, it contains certain elementary truths of importance for the understanding of both morality and law. These we shall endeavour to disentangle from their metaphysical setting and restate here in simpler terms.

How does formalism deal with choice? (129)

Different legal systems, or the same system at different times, may either ignore or acknowledge more or less explicitly such a need for the further exercise of choice in the application of general rules to particular cases. The vice known to legal theory as formalism or conceptualism consists in an attitude to verbally formulated rules which both seeks to disguise and to minimize the need for such choice, once the general rule has been laid down. One way of doing this is to freeze the meaning of the rule so that its general terms must have the same meaning in every case where its application is in question. To secure this we may fasten on certain features present in the plain case and insist that these are both necessary and sufficient to bring anything which has them within the scope of the rule, whatever other features it may have or lack, and whatever may be the social consequences of applying the rule in this way. To do this is to secure a measure of certainty or predictability at the cost of blindly prejudging what is to be done in a range of future cases, about whose composition we are ignorant. We shall thus indeed succeed in settling in advance, but also in the dark, issues which can only reasonably be settled when they arise and are identified. We shall be forced by this technique to include in the scope of a rule cases which we would wish to exclude in order to give effect to reasonable social aims, and which the open-textured terms of our language would have allowed us to exclude, had we left them less rigidly defined. The rigidity of our classifications will thus war with our aims in having or maintaining the rule.

What are the three salient differences between social rules and habits? (55-56)

First, for the group to have a habit it is enough that their behaviour in fact converges. Deviation from the regular course need not be a matter for any form of criticism. But such general convergence or even identity of behaviour is not enough to constitute the existence of a rule requiring that behaviour: where there is such a rule deviations are generally regarded as lapses or faults open to criticism, and threatened deviations meet with pressure for conformity, though the forms of criticism and pressure differ with different types of rule. Secondly, where there are such rules, not only is such criticism in fact made but deviation from the standard is generally accepted as a good reason for making it. Criticism for deviation is regarded as legitimate or justified in this sense, as are demands for compliance with the standard when deviation is threatened. Moreover, except by a minority of hardened offenders, such criticism and demands are generally regarded as legitimate, or made with good reason, both by those who make them and those to whom they are made. How many of the group must in these various ways treat the regular mode of behaviour as a standard of criticism, and how often and for how long they must do so to warrant the statement that the group has a rule, are not definite matters; they need not worry us more than the question as to the number of hairs a man may have and still be bald. We need only remember that the statement that a group has a certain rule is compatible with the existence of a minority who not only break the rule but refuse to look upon it as a standard either for themselves or others. The third feature distinguishing social rules from habits is implicit in what has already been said, but it is one so important and so frequently disregarded or misrepresented in jurisprudence that we shall elaborate it here. It is a feature which throughout this book we shall call the internal aspect of rules. When a habit is general in a social group, this generality is merely a fact about the observable behaviour of most of the group. In order that there should be such a habit no members of the group need in any way think of the general behaviour, or even know that the behaviour in question is general; still less need they strive to teach or intend to maintain it. It is enough that each for his part behaves in the way that others also in fact do. By contrast, if a social rule is to exist some at least must look upon the behaviour in question as a general standard to be followed by the group as a whole. A social rule has an 'internal' aspect, in addition to the external aspect which it shares with a social habit and which consists in the regular uniform behaviour which an observer could record.

Why can the ordinary person and the courts think about rules in different ways? (115-116)

He need not, though he may, share the internal point of view accepting the rules as standards for all to whom they apply. Instead, he may think of the rule only as something demanding action from him under threat of penalty; he may obey it out of fear of the consequences, or from inertia, without thinking of himself or others as having an obligation to do so and without being disposed to criticize either himself or others for deviations. But this merely personal concern with the rules, which is all the ordinary citizen may have in obeying them, cannot characterize the attitude of the courts to the rules with which they operate as courts. This is most patently the case with the ultimate rule of recognition in terms of which the validity of other rules is assessed. This, if it is to exist at all, must be regarded from the internal point of view as a public, common standard of correct judicial decision, and not as something which each judge merely obeys for his part only. Individual courts of the system though they may, on occasion, deviate from these rules must, in general, be critically concerned with such deviations as lapses from standards, which are essentially common or public. This is not merely a matter of the efficiency or health of the legal system, but is logically a necessary condition of our ability to speak of the existence of a single legal system. If only some judges acted 'for their part only' on the footing that what the Queen in Parliament enacts is law, and made no criticisms of those who did not respect this rule of recognition, the characteristic unity and continuity of a legal system would have disappeared. For this depends on the acceptance, at this crucial point, of common standards of legal validity. In the interval between these vagaries of judicial behaviour and the chaos which would ultimately ensue when the ordinary man was faced with contrary judicial orders, we would be at a loss to describe the situation. We would be in the presence of a lusus naturae worth thinking about only because it sharpens our awareness of what is often too obvious to be noticed.

How does Hart bring the internal and external point of view back here? (201-201)

Hence a society with law contains those who look upon its rules from the internal point of view as accepted standards of behaviour, and not merely as reliable predictions of what will befall them, at the hands of officials, if they disobey. But it also comprises those upon whom, either because they are malefactors or mere helpless victims of the system, these legal standards have to be imposed by force or threat of force; they are concerned with the rules merely as a source of possible punishment. The balance between these two components will be determined by many different factors. If the system is fair and caters genuinely for the vital interests of all those from whom it demands obedience, it may gain and retain the allegiance of most for most of the time, and will accordingly be stable. On the other hand, it may be a narrow and exclusive system run in the interests of the dominant group, and it may be made continually more repressive and unstable with the latent threat of upheaval. Between these two extremes various combinations of these attitudes to law are to be found, often in the same individual.

What do you think Hart means by quashed? (30)

Hence, until it is set aside on appeal as an order given in excess of jurisdiction, it stands as a legally effective order between the parties which will be enforced. But it has a legal defect: it is liable to be set aside or 'quashed' on appeal because of the lack of jurisdiction. It is to be noted that there is an important difference between what is ordinarily spoken of in England as a 'reversal' by a superior court of an inferior court's order and the 'quashing' of an order for lack of jurisdiction. If an order is reversed, it is because what the lower court has said either about the law applicable to the case or the facts, is considered wrong. But an order of the lower court which is quashed for lack of jurisdiction may be impeccable in both these respects. It is not what the judge in the lower court has said or ordered that is wrong, but his saying or ordering of it. He has purported to do something which he is not legally empowered to do though other courts may be so empowered. But for the complication that, in the interests of public order a decision given in excess of jurisdiction stands till quashed by a superior court, conformity or failure to conform to rules of jurisdiction is like conformity and failure to conform to rules defining the conditions for the valid exercise of legal powers by private individuals. The relationship between the conforming action and the rule is ill-conveyed by the words 'obey' and 'disobey', which are more apposite in the case of the criminal law where the rules are analogous to orders.

What is the role of the primary rules of obligation in primitive communities? (91)

If a society is to live by such primary rules alone, there are certain conditions which, granted a few of the most obvious truisms about human nature and the world we live in, must clearly be satisfied. The first of these conditions is that the rules must contain in some form restrictions on the free use of violence, theft, and deception to which human beings are tempted but which they must, in general, repress, if they are to coexist in close proximity to each other. Such rules are in fact always found in the primitive societies of which we have knowledge, together with a variety of others imposing on individuals various positive duties to perform services or make contributions to the common life. Secondly, though such a society may exhibit the tension, already described, between those who accept the rules and those who reject the rules except where fear of social pressure induces them to conform, it is plain that the latter cannot be more than a minority, if so loosely organized a society of persons, approximately equal in physical strength, is to endure: for otherwise those who reject the rules would have too little social pressure to fear. This too is confirmed by what we know of primitive communities where, though there are dissidents and malefactors, the majority live by the rules seen from the internal point of view.

How does the internal/external statement distinction mirror the internal/external aspect of the rules? (102-103) [See question 15 above]

If this use of an accepted rule of recognition in making internal statements is understood and carefully distinguished from an external statement of fact that the rule is accepted, many obscurities concerning the notion of legal 'validity' disappear. For the word 'valid' is most frequently, though not always, used, in just such internal statements, applying to a particular rule of a legal system, an unstated but accepted rule of recognition. To say that a given rule is valid is to recognize it as passing all the tests provided by the rule of recognition and so as a rule of the system. We can indeed simply say that the statement that a particular rule is valid means that it satisfies all the criteria provided by the rule of recognition. This is incorrect only to the extent that it might obscure the internal character of such statements; for, like the cricketers' 'Out', these statements of validity normally apply to a particular case a rule of recognition accepted by the speaker and others, rather than expressly state that the rule is satisfied.

Why does Hart think that general standards of conduct are so important to law? (124)

In any large group general rules, standards, and principles must be the main instrument of social control, and not particular directions given to each individual separately. If it were not possible to communicate general standards of conduct, which multitudes of individuals could understand, without further direction, as requiring from them certain conduct when occasion arose, nothing that we now recognize as law could exist. Hence the law must predominantly, but by no means exclusively, refer to classes of person, and to classes of acts, things, and circumstances; and its successful operation over vast areas of social life depends on a widely diffused capacity to recognize particular acts, things, and circumstances as instances of the general classifications which the law makes.

How is the idea of justice even more clear when we are talking about applications of the law? (160)

In certain cases, indeed, the resemblances and differences between human beings which are relevant for the criticism of legal arrangements as just or unjust are quite obvious. This is pre-eminently the case when we are concerned not with the justice or injustice of the law but of its application in particular cases. For here the relevant resemblances and differences between individuals, to which the person who administers the law must attend, are determined by the law itself. To say that the law against murder is justly applied is to say that it is impartially applied to all those and only those who are alike in having done what the law forbids; no prejudice or interest has deflected the administrator from treating them 'equally'. Consistently with this the procedural standards such as 'audi alteram partem' 'let no one be a judge in his own cause' are thought of as requirements of justice, and in England and America are often referred to as principles of Natural Justice. This is so because they are guarantees of impartiality or objectivity, designed to secure that the law is applied to all those and only to those who are alike in the relevant respect marked out by the law itself.

Why isn't Austin entitled to use the word "title?" (54)

In explaining the continuity of law-making power through a changing succession of individual legislators, it is natural to use the expressions 'rule of succession', 'title', 'right to succeed', and 'right to make law'. It is plain, however, that with these expressions we have introduced a new set of elements, of which no account can be given in terms of habits of obedience to general orders, out of which, following the prescription of the theory of sovereignty, we constructed the simple legal world of Rex I. For in that world there were no rules, and so no rights or titles, and hence a fortiori no right or title to succeed: there were just the facts that orders were given by Rex I, and his orders were habitually obeyed. To constitute Rex sovereign during his lifetime and to make his orders law, no more was needed; but this is not enough to account for his successor's rights. In fact, the idea of habitual obedience fails, in two different though related ways, to account for the continuity to be observed in every normal legal system, when one legislator succeeds another. First, mere habits of obedience to orders given by one legislator cannot confer on the new legislator any right to succeed the old and give orders in his place. Secondly, habitual obedience to the old lawgiver cannot by itself render probable, or found any presumption, that the new legislator's orders will be obeyed. If there is to be this right and this presumption at the moment of succession there must, during the reign of the earlier legislator, have been somewhere in the society a general social practice more complex than any that can be described in terms of habit of obedience: there must have been the acceptance of the rule under which the new legislator is entitled to succeed.

How do all systems "compromise?" (130)

In fact all systems, in different ways, compromise between two social needs: the need for certain rules which can, over great areas of conduct, safely be applied by private individuals to themselves without fresh official guidance or weighing up of social issues, and the need to leave open, for later settlement by an informed, official choice, issues which can only be properly appreciated and settled when they arise in a concrete case. In some legal systems at some periods it may be that too much is sacrificed to certainty, and that judicial interpretation of statutes or of precedent is too formal and so fails to respond to the similarities and differences between cases which are visible only when they are considered in the light of social aims. In other systems or at other periods it may seem that too much is treated by courts as perennially open or revisable in precedents, and too little respect paid to such limits as legislative language, despite its open texture, does after all provide. Legal theory has in this matter a curious history; for it is apt either to ignore or to exaggerate the indeterminacies of legal rules. To escape this oscillation between extremes we need to remind ourselves that human inability to anticipate the future, which is at the root of this indeterminacy, varies in degree in different fields of conduct, and that legal systems cater for this inability by a corresponding variety of techniques.

Why is the rule of recognition shown and not stated? (101)

In the day-to-day life of a legal system its rule of recognition is very seldom expressly formulated as a rule; though occasionally, courts in England may announce in general terms the relative place of one criterion of law in relation to another, as when they assert the supremacy of Acts of Parliament over other sources or suggested sources of law. For the most part the rule of recognition is not stated, but its existence is shown in the way in which particular rules are identified, either by courts or other officials or private persons or their advisers. There is, of course, a difference in the use made by courts of the criteria provided by the rule and the use of them by others: for when courts reach a particular conclusion on the footing that a particular rule has been correctly identified as law, what they say has a special authoritative status conferred on it by other rules. In this respect, as in many others, the rule of recognition of a legal system is like the scoring rule of a game. In the course of the game the general rule defining the activities which constitute scoring (runs, goals, &c.) is seldom formulated; instead it is used by officials and players in identifying the particular phases which count towards winning. Here too, the declarations of officials (umpire or scorer) have a special authoritative status attributed to them by other rules. Further, in both cases there is the possibility of a conflict between these authoritative applications of the rule and the general understanding of what the rule plainly requires according to its terms. This, as we shall see later, is a complication which must be catered for in any account of what it is for a system of rules of this sort to exist.

Explain the you are blind/you are dreaming debate. (186)

In the vast literature from Plato to the present day which is dedicated to the assertion, and also to the denial, of the proposition that the ways in which men ought to behave may be discovered by human reason, the disputants on one side seem to say to those on the other, 'You are blind if you cannot see this' only to receive in reply, 'You have been dreaming.' This is so, because the claim that there are true principles of right conduct, rationally discoverable, has not usually been advanced as a separate doctrine but was originally presented, and for long defended, as part of a general conception of nature, inanimate and living. This outlook is, in many ways, antithetic to the general conception of nature which constitutes the framework of modern secular thought. Hence it is that, to its critics, Natural Law theory has seemed to spring from deep and old confusions from which modern thought has triumphantly freed itself; while to its advocates, the critics appear merely to insist on surface trivialities, ignoring profounder truths.

How might natural law be associated with metaphysics? (188)

Indeed, the continued reassertion of some form of Natural Law doctrine is due in part to the fact that its appeal is independent of both divine and human authority, and to the fact that despite a terminology, and much metaphysics, which few could now accept, it contains certain elementary truths of importance for the understanding of both morality and law. These we shall endeavour to disentangle from their metaphysical setting and restate here in simpler terms.

How is international law problematic? (3-4)

International law lacks a legislature, states cannot be brought before international courts without their prior consent, and there is no centrally organized effective system of sanctions. Certain types of primitive law, including those out of which some contemporary legal systems may have gradually evolved, similarly lack these features, and it is perfectly clear to everyone that it is their deviation in these respects from the standard case which makes their classification appear questionable. There is no mystery about this.

What are the standard problems with international law? (214)

International law presents us with the converse case. For, though it is consistent with the usage of the last 150 years to use the expression 'law' here, the absence of an international legislature, courts with compulsory jurisdiction, and centrally organized sanctions have inspired misgivings, at any rate in the breasts of legal theorists. The absence of these institutions means that the rules for states resemble that simple form of social structure, consisting only of primary rules of obligation, which, when we find it among societies of individuals, we are accustomed to contrast with a developed legal system. It is indeed arguable, as we shall show, that international law not only lacks the secondary rules of change and adjudication which provide for legislature and courts, but also a unifying rule of recognition specifying 'sources' of law and providing general criteria for the identification of its rules. These differences are indeed striking and the question 'Is international law really law?' can hardly be put aside. But in this case also, we shall neither dismiss the doubts, which many feel, with a simple reminder of the existing usage; nor shall we simply confirm them on the footing that the existence of a union of primary and secondary rules is a necessary as well as a sufficient condition for the proper use of the expression 'legal system'. Instead we shall inquire into the detailed character of the doubts which have been felt, and, as in the German case, we shall ask whether the common wider usage that speaks of 'international law' is likely to obstruct any practical or theoretical aim.

5. What does Hart mean when he says that there is a connection between natural facts and moral and legal rules? (193)

It is important to stress the distinctively rational connection between natural facts and the content of legal and moral rules in this approach, because it is both possible and important to inquire into quite different forms of connection between natural facts and legal or moral rules. Thus, the still young sciences of psychology and sociology may discover or may even have discovered that, unless certain physical, psychological, or economic conditions are satisfied, e.g. unless young children are fed and nurtured in certain ways within the family, no system of laws or code of morals can be established, or that only those laws can function successfully which conform to a certain type. Connections of this sort between natural conditions and systems of rules are not mediated by reasons; for they do not relate the existence of certain rules to the conscious aims or purpose of those whose rules they are. Being fed in infancy in a certain way may well be shown to be a necessary condition or even a cause of a population developing or maintaining a moral or legal code, but it is not a reason for their doing so. Such causal connections do not of course conflict with the connections which rest on purposes or conscious aims; they may indeed be considered more important or fundamental than the latter, since they may actually explain why human beings have those conscious aims or purposes which Natural Law takes as its starting-points. Causal explanations of this type do not rest on truisms nor are they mediated by conscious aims or purposes: they are for sociology or psychology like other sciences to establish by the methods of generalization and theory, resting on observation and, where possible, on experiment. Such connections therefore are of a different kind from those which relate the content of certain legal and moral rules to the facts stated in the following truisms.

What does Hart say about punishment? (10)

It is obvious that predictability of punishment is one important aspect of legal rules; but it is not possible to accept this as an exhaustive account of what is meant by the statement that a social rule exists or of the element of 'must' or 'ought' involved in rules. To such a predictive account there are many objections, but one in particular, which characterizes a whole school of legal theory in Scandinavia, deserves careful consideration. It is that if we look closely at the activity of the judge or official who punishes deviations from legal rules (or those private persons who reprove or criticize deviations from non-legal rules), we see that rules are involved in this activity in a way which this predictive account leaves quite unexplained. For the judge, in punishing, takes the rule as his guide and the breach of the rule as his reason and justification for punishing the offender.

What does the existence of moral ideals tell us about the nature of morality? (182)

It is, however, both true and important that morality includes much more than the obligations and duties which are recognized in the actual practice of social groups. Obligation and duty are only the bedrock of morality, even of social morality, and there are forms of morality which extend beyond the accepted shared morality of particular societies. Two further aspects of morality require attention here. First, even within the morality of a particular society, there exist side by side with the structure of mandatory moral obligations and duties and the relatively clear rules that define them, certain moral ideals. The realization of these is not taken, as duty is, as a matter of course, but as an achievement deserving praise. The hero and the saint are extreme types of those who do more than their duty. What they do is not like obligation or duty, something which can be demanded of them, and failure to do it is not regarded as wrong or a matter for censure. On a humbler scale than the saint or hero, are those who are recognized in a society as deserving praise for the moral virtues which they manifest in daily life such as bravery, charity, benevolence, patience, or chastity. The connection between such socially recognized ideals and virtues and the primary mandatory forms of social obligation and duty is fairly clear. Many moral virtues are qualities consisting in the ability and disposition to carry forward beyond the limited extent which duty demands, the kind of concern for others' interests or sacrifice of personal interest which it does demand. Benevolence and charity are examples of this. Other moral virtues like temperance, patience, bravery, or conscientiousness are in a sense ancillary: they are qualities of character shown in exceptional devotion to duty or in the pursuit of substantive moral ideals in the face of special temptation or danger.

What does Hart mean by primitive communities? (91)

It is, of course, possible to imagine a society without a legislature, courts, or officials of any kind. Indeed, there are many studies of primitive communities which not only claim that this possibility is realized but depict in detail the life of a society where the only means of social control is that general attitude of the group towards its own standard modes of behaviour in terms of which we have characterized rules of obligation. A social structure of this kind is often referred to as one of 'custom'; but we shall not use this term, because it often implies that the customary rules are very old and supported with less social pressure than other rules. To avoid these implications we shall refer to such a social structure as one of primary rules of obligation. If a society is to live by such primary rules alone, there are certain conditions which, granted a few of the most obvious truisms about human nature and the world we live in, must clearly be satisfied. The first of these conditions is that the rules must contain in some form restrictions on the free use of violence, theft, and deception to which human beings are tempted but which they must, in general, repress, if they are to coexist in close proximity to each other. Such rules are in fact always found in the primitive societies of which we have knowledge, together with a variety of others imposing on individuals various positive duties to perform services or make contributions to the common life. Secondly, though such a society may exhibit the tension, already described, between those who accept the rules and those who reject the rules except where fear of social pressure induces them to conform, it is plain that the latter cannot be more than a minority, if so loosely organized a society of persons, approximately equal in physical strength, is to endure: for otherwise those who reject the rules would have too little social pressure to fear. This too is confirmed by what we know of primitive communities where, though there are dissidents and malefactors, the majority live by the rules seen from the internal point of view.

Why are extreme forms of rule-scepticism absurd? (136)

It may seem strange that the contention that rules have a central place in the structure of a legal system could ever be seriously doubted. Yet 'rule-scepticism', or the claim that talk of rules is a myth, cloaking the truth that law consists simply of the decisions of courts and the prediction of them, can make a powerful appeal to a lawyer's candour. Stated in an unqualified general form, so as to embrace both secondary and primary rules, it is indeed quite incoherent; for the assertion that there are decisions of courts cannot consistently be combined with the denial that there are any rules at all. This is so because, as we have seen, the existence of a court entails the existence of secondary rules conferring jurisdiction on a changing succession of individuals and so making their decisions authoritative. In a community of people who understood the notions of a decision and a prediction of a decision, but not the notion of a rule, the idea of an authoritative decision would be lacking and with it the idea of a court. There would be nothing to distinguish the decision of a private person from that of a court. We might try to eke out, with the notion of 'habitual obedience', the deficiencies of predictability of decision as a foundation for the authoritative jurisdiction required in a court. But if we do this we shall find that the notion of a habit suffers, for this purpose, from all the inadequacies which came to light when in Chapter IV we considered it as a substitute for a rule conferring legislative powers.

What specifically happens when Rex I dies and Rex II starts issuing general orders? (53)

Let us now suppose that, after a successful reign, Rex dies leaving a son Rex II who then starts to issue general orders. The mere fact that there was a general habit of obedience to Rex I in his lifetime does not by itself even render probable that Rex II will be habitually obeyed. Hence if we have nothing more to go on than the fact of obedience to Rex I and the likelihood that he would continue to be obeyed, we shall not be able to say of Rex II's first order, as we could have said of Rex I's last order, that it was given by one who was sovereign and was therefore law. There is as yet no established habit of obedience to Rex II. We shall have to wait and see whether such obedience will be accorded to Rex II, as it was to his father, before we can say, in accordance with the theory, that he is now sovereign and his orders are law. There is nothing to make him sovereign from the start. Only after we know that his orders have been obeyed for some time shall we be able to say that a habit of obedience has been established. Then, but not till then, we shall be able to say of any further order that it is already law as soon as it is issued and before it is obeyed. Till this stage is reached there will be an interregnum in which no law can be made.

How do we distinguish a normal game from a game of "scorer's discretion?"

Like the changes from a regime of custom to a mature system of law, the addition to the game of secondary rules providing for the institution of a scorer whose rulings are final, brings into the system a new kind of internal statement; for unlike the players' statements as to the score, the scorer's determinations are given, by secondary rules, a status which renders them unchallengeable. In this sense it is true that for the purposes of the game 'the score is what the scorer says it is'. But it is important to see that the scoring rule remains what it was before and it is the scorer's duty to apply it as best he can. 'The score is what the scorer says it is' would be false if it meant that there was no rule for scoring save what the scorer in his discretion chose to apply. There might indeed be a game with such a rule, and some amusement might be found in playing it if the scorer's discretion were exercised with some regularity; but it would be a different game. We may call such a game the game of 'scorer's discretion'

What are the three defects in the simple social structure of primary rules? (92-93)

More important for our present purpose is the following consideration. It is plain that only a small community closely knit by ties of kinship, common sentiment, and belief, and placed in a stable environment, could live successfully by such a regime of unofficial rules. In any other conditions such a simple form of social control must prove defective and will require supplementation in different ways. In the first place, the rules by which the group lives will not form a system, but will simply be a set of separate standards, without any identifying or common mark, except of course that they are the rules which a particular group of human beings accepts. They will in this respect resemble our own rules of etiquette. Hence if doubts arise as to what the rules are or as to the precise scope of some given rule, there will be no procedure for settling this doubt, either by reference to an authoritative text or to an official whose declarations on this point are authoritative. For, plainly, such a procedure and the acknowledgement of either authoritative text or persons involve the existence of rules of a type different from the rules of obligation or duty which ex hypothesi are all that the group has. This defect in the simple social structure of primary rules we may call its uncertainty. A second defect is the static character of the rules. The only mode of change in the rules known to such a society will be the slow process of growth, whereby courses of conduct once thought optional become first habitual or usual, and then obligatory, and the converse process of decay, when deviations, once severely dealt with, are first tolerated and then pass unnoticed. There will be no means, in such a society, of deliberately adapting the rules to changing circumstances, either by eliminating old rules or introducing new ones: for, again, the possibility of doing this presupposes the existence of rules of a different type from the primary rules of obligation by which alone the society lives. In an extreme case the rules may be static in a more drastic sense. This, though never perhaps fully realized in any actual community, is worth considering because the remedy for it is something very characteristic of law. In this extreme case, not only would there be no way of deliberately changing the general rules, but the obligations which arise under the rules in particular cases could not be varied or modified by the deliberate choice of any individual. Each individual would simply have fixed obligations or duties to do or abstain from doing certain things. It might indeed very often be the case that others would benefit from the performance of these obligations; yet if there are only primary rules of obligation they would have no power to release those bound from performance or to transfer to others the benefits which would accrue from performance. For such operations of release or transfer create changes in the initial positions of individuals under the primary rules of obligation, and for these operations to be possible there must be rules of a sort different from the primary rules. The third defect of this simple form of social life is the inefficiency of the diffuse social pressure by which the rules are maintained. Disputes as to whether an admitted rule has or has not been violated will always occur and will, in any but the smallest societies, continue interminably, if there is no agency specially empowered to ascertain finally, and authoritatively, the fact of violation. Lack of such final and authoritative determinations is to be distinguished from another weakness associated with it. This is the fact that punishments for violations of the rules, and other forms of social pressure involving physical effort or the use of force, are not administered by a special agency but are left to the individuals affected or to the group at large. It is obvious that the waste of time involved in the group's unorganized efforts to catch and punish offenders, and the smouldering vendettas which may result from self-help in the absence of an official monopoly of 'sanctions', may be serious. The history of law does, however, strongly suggest that the lack of official agencies to determine authoritatively the fact of violation of the rules is a much more serious defect; for many societies have remedies for this defect long before the other.

Why are uncertainties unavoidable? (126)

Much of the jurisprudence of this century has consisted of the progressive realization (and sometimes the exaggeration) of the important fact that the distinction between the uncertainties of communication by authoritative example (precedent), and the certainties of communication by authoritative general language (legislation) is far less firm than this naïve contrast suggests. Even when verbally formulated general rules are used, uncertainties as to the form of behaviour required by them may break out in particular concrete cases. Particular fact-situations do not await us already marked off from each other, and labelled as instances of the general rule, the application of which is in question; nor can the rule itself step forward to claim its own instances. In all fields of experience, not only that of rules, there is a limit, inherent in the nature of language, to the guidance which general language can provide. There will indeed be plain cases constantly recurring in similar contexts to which general expressions are clearly applicable ('If anything is a vehicle a motor-car is one') but there will also be cases where it is not clear whether they apply or not. ('Does "vehicle" used here include bicycles, airplanes, roller skates?') The latter are fact-situations, continually thrown up by nature or human invention, which possess only some of the features of the plain cases but others which they lack. Canons of 'interpretation' cannot eliminate, though they can diminish, these uncertainties; for these canons are themselves general rules for the use of language, and make use of general terms which themselves require interpretation. They cannot, any more than other rules, provide for their own interpretation. The plain case, where the general terms seem to need no interpretation and where the recognition of instances seems unproblematic or 'automatic', are only the familiar ones, constantly recurring in similar contexts, where there is general agreement in judgments as to the applicability of the classifying terms.

How does Hart talk about standards? (33)

Nevertheless the itch for uniformity in jurisprudence is strong: and since it is by no means disreputable, we must consider two alternative arguments in favour of it which have been sponsored by great jurists. These arguments are designed to show that the distinction between varieties of law which we have stressed is superficial, if not unreal, and that 'ultimately' the notion of orders backed by threats is adequate for the analysis of rules conferring powers as well as for the rules of criminal law. As with most theories which have persisted long in jurisprudence there is an element of truth in these arguments. There certainly are points of resemblance between the legal rules of the two sorts which we have distinguished. In both cases actions may be criticized or assessed by reference to the rules as legally the 'right' or 'wrong' thing to do. Both the power-conferring rules concerning the making of a will and the rule of criminal law prohibiting assault under penalty constitute standards by which particular actions may be thus critically appraised. So much is perhaps implied in speaking of them both as rules. Further it is important to realize that rules of the power-conferring sort, though different from rules which impose duties and so have some analogy to orders backed by threats, are always related to such rules; for the powers which they confer are powers to make general rules of the latter sort or to impose duties on particular persons who would otherwise not be subject to them. This is most obviously the case when the power conferred is what would ordinarily be termed a power to legislate. But, as we shall see, it is also true in the case of other legal powers. It might be said, at the cost of some inaccuracy, that whereas rules like those of the criminal law impose duties, power-conferring rules are recipes for creating duties.

How does the idea that states can be bound in different ways affect the understanding of international law? (224-226)

READ THESE PAGES: First, these theories fail completely to explain how it is known that states 'can' only be bound by self-imposed obligations, or why this view of their sovereignty should be accepted, in advance of any examination of the actual character of international law. Is there anything more to support it besides the fact that it has often been repeated? Secondly, there is something incoherent in the argument designed to show that states, because of their sovereignty, can only be subject to or bound by rules which they have imposed upon themselves. In some very extreme forms of 'auto-limitation' theory, a state's agreement or treaty engagements are treated as mere declarations of its proposed future conduct, and failure to perform is not considered to be a breach of any obligation. This, though very much at variance with the facts, has at least the merit of consistency: it is the simple theory that the absolute sovereignty of states is inconsistent with obligation of any kind, so that, like Parliament, a state cannot bind itself. The less extreme view that a state may impose obligations on itself by promise, agreement, or treaty is not, however, consistent with the theory that states are subject only to rules which they have thus imposed on themselves. For, in order that words, spoken or written, should in certain circumstances function as a promise, agreement, or treaty, and so give rise to obligations and confer rights which others may claim, rules must already exist providing that a state is bound to do whatever it undertakes by appropriate words to do. Such rules presupposed in the very notion of a self-imposed obligation obviously cannot derive their obligatory status from a self-imposed obligation to obey them.

What are some obligations that states may have to obey the international law that are not moral? (228-232)

READ THESE PAGES: It is for this reason that just as we expect a municipal legal system, but not morality, to tell us how many witnesses a validly executed will must have, so we expect international law, but not morality, to tell us such things as the number of days a belligerent vessel may stay for refueling or repairs in a neutral port; the width of territorial waters; the methods to be used in their measurement. All these things are necessary and desirable provisions for legal rules to make, but so long as the sense is retained that such rules may equally well take any of several forms, or are important only as one among many possible means to specific ends, they remain distinct from rules which have the status in individual or social life characteristic of morality. Of course not all the rules of international law are of this formal, or arbitrary, or morally neutral kind. The point is only that legal rules can and moral rules cannot be of this kind.

Why can't one give a simple definition of law? (14-16)

Read 14-16 for this

What is the serious claim made by rule-scepticim? (138)

Rule-scepticism has a serious claim on our attention, but only as a theory of the function of rules in judicial decision. In this form, while conceding all the objections to which we have drawn attention, it amounts to the contention that, so far as the courts are concerned, there is nothing to circumscribe the area of open texture: so that it is false, if not senseless, to regard judges as themselves subject to rules or 'bound' to decide cases as they do. They may act with sufficient predictable regularity and uniformity to enable others, over long periods, to live by courts' decisions as rules. Judges may even experience feelings of compulsion when they decide as they do, and these feelings may be predictable too; but beyond this there is nothing which can be characterized as a rule which they observe. There is nothing which courts treat as standards of correct judicial behaviour, and so nothing in that behaviour which manifests the internal point of view characteristic of the acceptance of rules.

What does "baldness" have to do with this? (4)

Secondly, it is not a peculiarity of complex terms like 'law' and 'legal system' that we are forced to recognize both clear standard cases and challengeable borderline cases. It is now a familiar fact (though once too little stressed) that this distinction must be made in the case of almost every general term which we use in classifying features of human life and of the world in which we live. Sometimes the difference between the clear, standard case or paradigm for the use of an expression and the questionable cases is only a matter of degree. A man with a shining smooth pate is clearly bald; another with a luxuriant mop clearly is not; but the question whether a third man, with a fringe of hair here and there, is bald might be indefinitely disputed, if it were thought worth while or any practical issue turned on it. Sometimes the deviation from the standard case is not a mere matter of degree but arises when the standard case is in fact a complex of normally concomitant but distinct elements, some one or more of which may be lacking in the cases open to challenge. Is a flying boat a 'vessel'? Is it still 'chess' if the game is played without a queen? Such questions may be instructive because they force us to reflect on, and make explicit, our conception of the composition of the standard case; but it is plain that what may be called the borderline aspect of things is too common to account for the long debate about law. Moreover, only a relatively small and unimportant part of the most famous and controversial theories of law is concerned with the propriety of using the expressions 'primitive law' or 'international law' to describe the cases to which they are conventionally applied.

Why is it important that the giving of an order is a deliberate datable act? (44)

So far we have confined our discussion of the varieties of law to statutes which, in spite of the differences we have emphasized, have one salient point of analogy with coercive orders. The enactment of a law, like the giving of an order, is a deliberate datable act. Those who take part in legislation consciously operate a procedure for making law, just as the man who gives an order consciously uses a form of words to secure recognition of, and compliance with, his intentions. Accordingly, theories which use the model of coercive orders in the analysis of law make the claim that all law can be seen, if we strip away the disguises, to have this point of resemblance to legislation and to owe its status as law to a deliberate law-creating act. The type of law which most obviously conflicts with this claim is custom; but the discussion whether custom is 'really' law has often been confused by the failure to disentangle two distinct issues. The first is whether 'custom as such' is law or not. The meaning and good sense of the denial that custom, as such, is law lie in the simple truth that, in any society, there are many customs which form no part of its law. Failure to take off a hat to a lady is not a breach of any rule of law; it has no legal status save that of being permitted by law. This shows that custom is law only if it is one of a class of customs which is 'recognized' as law by a particular legal system. The second issue concerns the meaning of 'legal recognition'. What is it for a custom to be legally recognized? Does it, as the model of coercive orders requires, consist in the fact that someone, perhaps 'the sovereign' or his agent, has ordered the custom to be obeyed, so that its status as law is due to something which, in this respect, resembles the act of legislation?

What does the administrative body do? (131)

Sometimes the sphere to be legally controlled is recognized from the start as one in which the features of individual cases will vary so much in socially important but unpredictable respects, that uniform rules to be applied from case to case without further official direction cannot usefully be framed by the legislature in advance. Accordingly, to regulate such a sphere the legislature sets up very general standards and then delegates to an administrative, rule-making body acquainted with the varying types of case, the task of fashioning rules adapted to their special needs. Thus the legislature may require an industry to maintain certain standards: to charge only a fair rate or to provide safe systems of work. Instead of leaving the different enterprises to apply these vague standards to themselves, at the risk of being found to have violated them ex post facto, it may be found best to defer the use of sanctions for violations until the administrative body has by regulation specified what, for a given industry, is to count as a 'fair rate' or a 'safe system'. This rule-making power may be exercisable only after something like a judicial inquiry into the facts about the particular industry, and a hearing of arguments pro and con a given form of regulation.

Why is the identification of the sovereign with the electorate of a democratic state so difficult for Austin's theory? (75)

That this is so may be shown in many different ways. It emerges most clearly if we consider a democracy in which the electorate excludes only infants and mental defectives and so itself constitutes 'the bulk' of the population, or if we imagine a simple social group of sane adults where all have the right to vote. If we attempt to treat the electorate in such cases as the sovereign and apply to it the simple definitions of the original theory, we shall find ourselves saying that here the 'bulk' of the society habitually obey themselves. Thus the original clear image of a society divided into two segments: the sovereign free from legal limitation who gives orders, and the subjects who habitually obey, has given place to the blurred image of a society in which the majority obey orders given by the majority or by all. Surely we have here neither 'orders' in the original sense (expression of intention that others shall behave in certain ways) or 'obedience'.

What is the twofold contention made by the Thomist tradition of natural law? (156)

The claim that between law and morality there is a necessary connection has many important variants, not all of them conspicuous for their clarity. There are many possible interpretations of the key terms 'necessary' and 'morality' and these have not always been distinguished and separately considered by either advocates or critics. The clearest, perhaps, because it is the most extreme form of expression of this point of view, is that associated with the Thomist tradition of Natural Law. This comprises a twofold contention: first, that there are certain principles of true morality or justice, discoverable by human reason without the aid of revelation even though they have a divine origin; secondly, that man-made laws which conflict with these principles are not valid law, 'Lex iniusta non est lex.' Other variants of this general point of view take a different view of both the status of principles of morality and of the consequences of conflict between law and morality. Some conceive morality not as immutable principles of conduct or as discoverable by reason, but as expressions of human attitudes to conduct which may vary from society to society or from individual to individual. Theories of this form usually also hold that conflict between law and even the most fundamental requirements of morality is not sufficient to deprive a rule of its status as law; they interpret the 'necessary' connection between law and morality in a different way. They claim that for a legal system to exist there must be a widely diffused, though not necessarily universal, recognition of a moral obligation to obey the law, even though this may be overriden in particular cases by a stronger moral obligation not to obey particular morally iniquitous laws.

How does this relate to the father and son going to church? (124-125)

The communication or teaching of standards of conduct by example may take different forms, far more sophisticated than our simple case. Our case would more closely resemble the legal use of precedent, if instead of the child being told on the particular occasion to regard what his father did on entering the church as an example of the right thing to do, the father assumed that the child would regard him as an authority on proper behaviour, and would watch him in order to learn the way to behave. To approach further the legal use of precedent, we must suppose that the father is conceived by himself and others to subscribe to traditional standards of behaviour and not to be introducing new ones.

What is the jurists' "heaven of concepts?" (130)

The consummation of this process is the jurists' 'heaven of concepts'; this is reached when a general term is given the same meaning not only in every application of a single rule, but whenever it appears in any rule in the legal system. No effort is then ever required or made to interpret the term in the light of the different issues at stake in its various recurrences.

Relate what Hart says on page 120 to the American Revolution.

The converse of the situation just described is to be seen in the fascinating moments of transition during which a new legal system emerges from the womb of an old one—sometimes only after a Caesarian operation. The recent history of the Commonwealth is an admirable field of study of this aspect of the embryology of legal systems. The schematic, simplified outline of this development is as follows. At the beginning of a period we may have a colony with a local legislature, judiciary, and executive. This constitutional structure has been set up by a statute of the United Kingdom Parliament, which retains full legal competence to legislate for the colony; this includes power to amend or repeal both the local laws and any of its own statutes, including those referring to the constitution of the colony. At this stage the legal system of the colony is plainly a subordinate part of a wider system characterized by the ultimate rule of recognition that what the Queen in Parliament enacts is law for (inter alia) the colony. At the end of the period of development we find that the ultimate rule of recognition has shifted, for the legal competence of the Westminster Parliament to legislate for the former colony is no longer recognized in its courts. It is still true that much of the constitutional structure of the former colony is to be found in the original statute of the Westminster Parliament: but this is now only an historical fact, for it no longer owes its contemporary legal status in the territory to the authority of the Westminster Parliament. The legal system in the former colony has now a 'local root' in that the rule of recognition specifying the ultimate criteria of legal validity no longer refers to enactments of a legislature of another territory. The new rule rests simply on the fact that it is accepted and used as such a rule in the judicial and other official operations of a local system whose rules are generally obeyed. Hence, though the composition, mode of enactment, and structure of the local legislature may still be that prescribed in the original constitution, its enactments are valid now not because they are the exercise of powers granted by a valid statute of the Westminster Parliament. They are valid because, under the rule of recognition locally accepted, enactment by the local legislature is an ultimate criterion of validity.

How are terms like justice and fairness not completely a part of moral philosophy? (158)

The distinctive features of justice and their special connection with law begin to emerge if it is observed that most of the criticisms made in terms of just and unjust could almost equally well be conveyed by the words 'fair' and 'unfair'. Fairness is plainly not coextensive with morality in general; references to it are mainly relevant in two situations in social life. One is when we are concerned not with a single individual's conduct but with the way in which classes of individuals are treated, when some burden or benefit falls to be distributed among them. Hence what is typically fair or unfair is a 'share'. The second situation is when some injury has been done and compensation or redress is claimed. These are not the only contexts where appraisals in terms of justice or fairness are made. We speak not only of distributions or compensations as just or fair but also of a judge as just or unjust; a trial as fair or unfair; and a person as justly or unjustly convicted. These are derivative applications of the notion of justice which are explicable once the primary application of justice to matters of distribution and compensation is understood.

What does Hart argue is being distorted? (38-40)

The distortion effected by this recasting is worth considering for it illuminates many different aspects of law. There are many techniques by which society may be controlled, but the characteristic technique of the criminal law is to designate by rules certain types of behaviour as standards for the guidance either of the members of society as a whole or of special classes within it: they are expected without the aid or intervention of officials to understand the rules and to see that the rules apply to them and to conform to them. Only when the law is broken, and this primary function of the law fails, are officials concerned to identify the fact of breach and impose the threatened sanctions. What is distinctive of this technique, as compared with individuated face-to-face orders which an official, like a policeman on traffic duty, might give to a motorist, is that the members of society are left to discover the rules and conform their behaviour to them; in this sense they 'apply' the rules themselves to themselves, though they are provided with a motive for conformity in the sanction added to the rule. Plainly we shall conceal the characteristic way in which such rules function if we concentrate on, or make primary, the rules requiring the courts to impose the sanctions in the event of disobedience; for these latter rules make provision for the breakdown or failure of the primary purpose of the system. They may indeed be indispensable but they are ancillary.

Is nullity always an evil?

The first argument, designed to show the fundamental identity of the two sorts of rule and to exhibit both as coercive orders, fastens on the 'nullity' which ensues when some essential condition for the exercise of the power is not fulfilled. This, it is urged, is like the punishment attached to the criminal law, a threatened evil or sanction exacted by law for breach of the rule; though it is conceded that in certain cases this sanction may only amount to a slight inconvenience. It is in this light that we are invited to view the case of one who seeks to enforce by law, as contractually binding, a promise made to him, and finds, to his chagrin, that, since it is not under seal and he gave no consideration for the promise, the written promise is legally a nullity. Similarly we are to think of the rule providing that a will without two witnesses will be inoperative, as moving testators to compliance with s. 9 of the Wills Act, just as we are moved to obedience to the criminal law by the thought of imprisonment.

How are moral rules and legal rules alike? (172)

The most famous attempt to convey in summary fashion their essential difference is the theory which asserts that, while legal rules only require 'external' behaviour and are indifferent to the motives, intentions, or other 'internal' accompaniments of conduct, morals on the other hand do not require any specific external actions but only a good will or proper intentions or motive. This really amounts to the surprising assertion that legal and moral rules properly understood could not ever have the same content; and though it does contain a hint of the truth it is, as it stands, profoundly misleading. It is in fact an inference, though a mistaken one, from certain important characteristics of morals, and particularly from certain differences between moral blame and legal punishment. If someone does something forbidden by moral rules or fails to do what they require, the fact that he did so unintentionally and in spite of every care is an excuse from moral blame; whereas a legal system or custom may have rules of 'strict liability' under which those who have broken the rules unintentionally and without 'fault' may be liable to punishment. So it is indeed true that while the notion of 'strict liability' in morals comes as near to being a contradiction in terms as anything in this sphere, it is something which may be merely open to criticism when found in a legal system. But this does not mean that morals require only good intention, will, or motives. Indeed to argue thus is, as we show later, to confuse the idea of an excuse with that of a justification for conduct.

What is the point of Hart's discussion of "due care?" (132)

The most famous example of this technique in Anglo-American law is the use of the standard of due care in cases of negligence. Civil, and less frequently criminal, sanctions may be applied to those who fail to take reasonable care to avoid inflicting physical injuries on others. But what is reasonable or due care in a concrete situation? We can, of course, cite typical examples of due care: doing such things as stopping, looking, and listening where traffic is to be expected. But we are all well aware that the situations where care is demanded are hugely various and that many other actions are now required besides, or in place of, 'stop, look, and listen'; indeed these may not be enough and might be quite useless if looking would not help to avert the danger. What we are striving for in the application of standards of reasonable care is to ensure (1) that precautions will be taken which will avert substantial harm, yet (2) that the precautions are such that the burden of proper precautions does not involve too great a sacrifice of other respectable interests. Nothing much is sacrificed by stopping, looking, and listening unless of course a man bleeding to death is being driven to the hospital. But owing to the immense variety of possible cases where care is called for, we cannot ab initio foresee what combinations of circumstances will arise nor foresee what interests will have to be sacrificed or to what extent, if precaution against harm is to be taken. Hence it is that we are unable to consider, before particular cases arise, precisely what sacrifice or compromise of interests or values we wish to make in order to reduce the risk of harm. Again, our aim of securing people against harm is indeterminate till we put it in conjunction with, or test it against, possibilities which only experience will bring before us; when it does, then we have to face a decision which will, when made, render our aim pro tanto determinate.

What is the point of Hart's extended game metaphor (think about a game of pickup basketball)? (142-143)

The most interesting and instructive feature of this form of the theory is its exploitation of the ambiguity of such statements as 'the law (or the constitution) is what the courts say it is', and the account which the theory must, to be consistent, give of the relation of non-official statements of law to the official statements of a court. To understand this ambiguity, we shall turn aside to consider its analogue in the case of a game. Many competitive games are played without an official scorer: notwithstanding their competing interests, the players succeed tolerably well in applying the scoring rule to particular cases; they usually agree in their judgments, and unresolved disputes may be few. Before the institution of an official scorer, a statement of the score made by a player represents, if he is honest, an effort to assess the progress of the game by reference to the particular scoring rule accepted in that game. Such statements of the score are internal statements applying the scoring rule, which though they presuppose that the players will, in general, abide by the rules and will object to their violation, are not statements or predictions of these facts. Like the changes from a regime of custom to a mature system of law, the addition to the game of secondary rules providing for the institution of a scorer whose rulings are final, brings into the system a new kind of internal statement; for unlike the players' statements as to the score, the scorer's determinations are given, by secondary rules, a status which renders them unchallengeable. In this sense it is true that for the purposes of the game 'the score is what the scorer says it is'. But it is important to see that the scoring rule remains what it was before and it is the scorer's duty to apply it as best he can. 'The score is what the scorer says it is' would be false if it meant that there was no rule for scoring save what the scorer in his discretion chose to apply. There might indeed be a game with such a rule, and some amusement might be found in playing it if the scorer's discretion were exercised with some regularity; but it would be a different game. We may call such a game the game of 'scorer's discretion'.

Why does a theory like Austin's have trouble explaining "legal limitations" on the sovereign's power? (68)

The objection to the theory as a general theory of law is that the existence of a sovereign such as Rex in this imagined society, who is subject to no legal limitations, is not a necessary condition or presupposition of the existence of law. To establish this we need not invoke disputable or challengeable types of law. Our argument therefore is not drawn from systems of customary law or international law, to which some wish to deny the title of law just because they lack a legislature. Appeal to these cases is quite unnecessary; for the conception of the legally unlimited sovereign misrepresents the character of law in many modern states where no one would question that there is law. Here there are legislatures but sometimes the supreme legislative power within the system is far from unlimited. A written constitution may restrict the competence of the legislature not merely by specifying the form and manner of legislation (which we may allow not to be limitations) but by excluding altogether certain matters from the scope of its legislative competence, thus imposing limitations of substance.

What is as important to society as the "invention of the wheel?" (42)

The reduction of rules conferring and defining legislative and judicial powers to statements of the conditions under which duties arise has, in the public sphere, a similar obscuring vice. Those who exercise these powers to make authoritative enactments and orders use these rules in a form of purposive activity utterly different from performance of duty or submission to coercive control. To represent such rules as mere aspects or fragments of the rules of duty is, even more than in the private sphere, to obscure the distinctive characteristics of law and of the activities possible within its framework. For the introduction into society of rules enabling legislators to change and add to the rules of duty, and judges to determine when the rules of duty have been broken, is a step forward as important to society as the invention of the wheel. Not only was it an important step; but it is one which, as we shall argue in Chapter V, may fairly be considered as the step from the pre-legal into the legal world.

What are secondary rules? (94)

The remedy for each of these three main defects in this simplest form of social structure consists in supplementing the primary rules of obligation with secondary rules which are rules of a different kind. The introduction of the remedy for each defect might, in itself, be considered a step from the pre-legal into the legal world; since each remedy brings with it many elements that permeate law: certainly all three remedies together are enough to convert the regime of primary rules into what is indisputably a legal system. We shall consider in turn each of these remedies and show why law may most illuminatingly be characterized as a union of primary rules of obligation with such secondary rules. Before we do this, however, the following general points should be noted. Though the remedies consist in the introduction of rules which are certainly different from each other, as well as from the primary rules of obligation which they supplement, they have important features in common and are connected in various ways. Thus they may all be said to be on a different level from the primary rules, for they are all about such rules; in the sense that while primary rules are concerned with the actions that individuals must or must not do, these secondary rules are all concerned with the primary rules themselves. They specify the ways in which the primary rules may be conclusively ascertained, introduced, eliminated, varied, and the fact of their violation conclusively determined.

What are the rules of change? (95)

The remedy for the static quality of the regime of primary rules consists in the introduction of what we shall call 'rules of change'. The simplest form of such a rule is that which empowers an individual or body of persons to introduce new primary rules for the conduct of the life of the group, or of some class within it, and to eliminate old rules. As we have already argued in Chapter IV it is in terms of such a rule, and not in terms of orders backed by threats, that the ideas of legislative enactment and repeal are to be understood. Such rules of change may be very simple or very complex: the powers conferred may be unrestricted or limited in various ways: and the rules may, besides specifying the persons who are to legislate, define in more or less rigid terms the procedure to be followed in legislation. Plainly, there will be a very close connection between the rules of change and the rules of recognition: for where the former exist the latter will necessarily incorporate a reference to legislation as an identifying feature of the rules, though it need not refer to all the details of procedure involved in legislation. Usually some official certificate or official copy will, under the rules of recognition, be taken as a sufficient proof of due enactment. Of course if there is a social structure so simple that the only 'source of law' is legislation, the rule of recognition will simply specify enactment as the unique identifying mark or criterion of validity of the rules. This will be the case for example in the imaginary kingdom of Rex I depicted in Chapter IV: there the rule of recognition would simply be that whatever Rex I enacts is law.

What is the rule of recognition? (94)

The simplest form of remedy for the uncertainty of the regime of primary rules is the introduction of what we shall call a 'rule of recognition'. This will specify some feature or features possession of which by a suggested rule is taken as a conclusive affirmative indication that it is a rule of the group to be supported by the social pressure it exerts. The existence of such a rule of recognition may take any of a huge variety of forms, simple or complex. It may, as in the early law of many societies, be no more than that an authoritative list or text of the rules is to be found in a written document or carved on some public monument. No doubt as a matter of history this step from the pre-legal to the legal may be accomplished in distinguishable stages, of which the first is the mere reduction to writing of hitherto unwritten rules. This is not itself the crucial step, though it is a very important one: what is crucial is the acknowledgement of reference to the writing or inscription as authoritative, i.e. as the proper way of disposing of doubts as to the existence of the rule. Where there is such an acknowledgement there is a very simple form of secondary rule: a rule for conclusive identification of the primary rules of obligation.

What are the rules of adjudication? (97)

The third supplement to the simple regime of primary rules, intended to remedy the inefficiency of its diffused social pressure, consists of secondary rules empowering individuals to make authoritative determinations of the question whether, on a particular occasion, a primary rule has been broken. The minimal form of adjudication consists in such determinations, and we shall call the secondary rules which confer the power to make them 'rules of adjudication'. Besides identifying the individuals who are to adjudicate, such rules will also define the procedure to be followed. Like the other secondary rules these are on a different level from the primary rules: though they may be reinforced by further rules imposing duties on judges to adjudicate, they do not impose duties but confer judicial powers and a special status on judicial declarations about the breach of obligations. Again these rules, like the other secondary rules, define a group of important legal concepts: in this case the concepts of judge or court, jurisdiction and judgment. Besides these resemblances to the other secondary rules, rules of adjudication have intimate connections with them. Indeed, a system which has rules of adjudication is necessarily also committed to a rule of recognition of an elementary and imperfect sort. This is so because, if courts are empowered to make authoritative determinations of the fact that a rule has been broken, these cannot avoid being taken as authoritative determinations of what the rules are. So the rule which confers jurisdiction will also be a rule of recognition, identifying the primary rules through the judgments of the courts and these judgments will become a 'source' of law. It is true that this form of rule of recognition, inseparable from the minimum form of jurisdiction, will be very imperfect. Unlike an authoritative text or a statute book, judgments may not be couched in general terms and their use as authoritative guides to the rules depends on a somewhat shaky inference from particular decisions, and the reliability of this must fluctuate both with the skill of the interpreter and the consistency of the judges.

How is this related to the internal point of view? (102)

The use of unstated rules of recognition, by courts and others, in identifying particular rules of the system is characteristic of the internal point of view. Those who use them in this way thereby manifest their own acceptance of them as guiding rules and with this attitude there goes a characteristic vocabulary different from the natural expressions of the external point of view. Perhaps the simplest of these is the expression, 'It is the law that ...', which we may find on the lips not only of judges, but of ordinary men living under a legal system, when they identify a given rule of the system. This, like the expression 'Out' or 'Goal', is the language of one assessing a situation by reference to rules which he in common with others acknowledges as appropriate for this purpose. This attitude of shared acceptance of rules is to be contrasted with that of an observer who records ab extra the fact that a social group accepts such rules but does not himself accept them. The natural expression of this external point of view is not 'It is the law that ...' but 'In England they recognize as law ... whatever the Queen in Parliament enacts....' The first of these forms of expression we shall call an internal statement because it manifests the internal point of view and is naturally used by one who, accepting the rule of recognition and without stating the fact that it is accepted, applies the rule in recognizing some particular rule of the system as valid. The second form of expression we shall call an external statement because it is the natural language of an external observer of the system who, without himself accepting its rule of recognition, states the fact that others accept it.

12. Why does Hart reject the claim that custom is a tacit order? (45-47)

This account of the legal status of custom is open to two different criticisms. The first is that it is not necessarily the case that until they are used in litigation customary rules have no status as law. The assertion that this is necessarily the case is either merely dogmatic or fails to distinguish what is necessary from what may be the case in certain systems. Why, if statutes made in certain defined ways are law before they are applied by the courts in particular cases, should not customs of certain defined kinds also be so? Why should it not be true that, just as the courts recognize as binding the general principle that what the legislature enacts is law, they also recognize as binding another general principle: that customs of certain defined sorts are law? What absurdity is there in the contention that, when particular cases arise, courts apply custom, as they apply statute, as something which is already law and because it is law? It is, of course, possible that a legal system should provide that no customary rule should have the status of law until the courts, in their uncontrolled discretion, declared that it should. But this would be just one possibility, which cannot exclude the possibility of systems in which the courts have no such discretion. How can it establish the general contention that a customary rule cannot have the status of law till applied in court? The second criticism of the theory that custom, when it is law, owes its legal status to the sovereign's tacit order is more fundamental. Even if it is conceded that it is not law till enforced by the court in the particular case, is it possible to treat the failure of the sovereign to interfere as a tacit expression of the wish that the rules should be obeyed? Even in the very simple military example on page 46 it is not a necessary inference from the fact that the general did not interfere with the sergeant's orders that he wished them to be obeyed. He may merely have wished to placate a valued subordinate and hoped that the men would find some way of evading the fatigues. No doubt we might in some cases draw the inference that he wished the fatigues to be done, but if we did this, a material part of our evidence would be the fact that the general knew that the orders had been given, had time to consider them, and decided to do nothing. The main objection to the use of the idea of tacit expressions of the sovereign's will to explain the legal status of custom is that, in any modern state, it is rarely possible to ascribe such knowledge, consideration and decision not to interfere to the 'sovereign', whether we identify the sovereign with the supreme legislature or the electorate. It is, of course, true that in most legal systems custom is a source of law subordinate to statute. This means that the legislature could take away their legal status; but failure to do this may not be a sign of the legislator's wishes. Only very rarely is the attention of a legislature, and still more rarely that of the electorate, turned to the customary rules applied by courts. Their non-interference can therefore not be compared to the general's non-interference with his sergeant; even if, in his case, we are prepared to infer from it a wish that his subordinate's orders be obeyed.

5. What does Hart mean by the internal aspect of rules? (56) THIS IS AN IMPORTANT POINT.

This internal aspect of rules may be simply illustrated from the rules of any game. Chess players do not merely have similar habits of moving the Queen in the same way which an external observer, who knew nothing about their attitude to the moves which they make, could record. In addition, they have a reflective critical attitude to this pattern of behaviour: they regard it as a standard for all who play the game. Each not only moves the Queen in a certain way himself but 'has views' about the propriety of all moving the Queen in that way. These views are manifested in the criticism of others and demands for conformity made upon others when deviation is actual or threatened, and in the acknowledgement of the legitimacy of such criticism and demands when received from others. For the expression of such criticisms, demands, and acknowledgements a wide range of 'normative' language is used. 'I (You) ought not to have moved the Queen like that', 'I (You) must do that', 'That is right', 'That is wrong'.

How can legal decisions be intuitive? What does that mean? (140-141)

This is not to say that pretence or 'window dressing' is not possible and sometimes successful. Tests for whether a person has merely pretended ex post facto that he acted on a rule are, like all empirical tests, inherently fallible but they are not inveterately so. It is possible that, in a given society, judges might always first reach their decisions intuitively or 'by hunches', and then merely choose from a catalogue of legal rules one which, they pretended, resembled the case in hand; they might then claim that this was the rule which they regarded as requiring their decision, although nothing else in their actions or words suggested that they regarded it as a rule binding on them. Some judicial decisions may be like this, but it is surely evident that for the most part decisions, like the chess-player's moves, are reached either by genuine effort to conform to rules consciously taken as guiding standards of decision or, if intuitively reached, are justified by rules which the judge was antecedently disposed to observe and whose relevance to the case in hand would generally be acknowledged. The last but most interesting form of rule-scepticism does not rest either on the open character of legal rules or on the intuitive character of many decisions; but on the fact that the decision of a court has a unique position as something authoritative, and in the case of supreme tribunals, final. This form of the theory, to which we shall devote the next section, is implicit in Bishop Hoadly's famous phrase echoed so often by Gray in The Nature and Sources of Law, 'Nay whoever hath an absolute authority to interpret any written or spoken laws it is he who is the lawgiver to all intents and purposes and not the person who first wrote or spake them.'

How is aggression between states different from aggression between individuals? (219-220)

This is so because aggression between states is very unlike that between individuals. The use of violence between states must be public, and though there is no international police force, there can be very little certainty that it will remain a matter between aggressor and victim, as a murder or theft, in the absence of a police force, might. To initiate a war is, even for the strongest power, to risk much for an outcome which is rarely predictable with reasonable confidence. On the other hand, because of the inequality of states, there can be no standing assurance that the combined strength of those on the side of international order is likely to preponderate over the powers tempted to aggression. Hence the organization and use of sanctions may involve fearful risks and the threat of them add little to the natural deterrents. Against this very different background of fact, international law has developed in a form different from that of municipal law. In a population of a modern state, if there were no organized repression and punishment of crime, violence and theft would be hourly expected; but for states, long years of peace have intervened between disastrous wars. These years of peace are only rationally to be expected, given the risks and stakes of war and the mutual needs of states; but they are worth regulating by rules which differ from those of municipal law in (among other things) not providing for their enforcement by any central organ. Yet what these rules require is thought and spoken of as obligatory; there is general pressure for conformity to the rules; claims and admissions are based on them and their breach is held to justify not only insistent demands for compensation, but reprisals and counter-measures. When the rules are disregarded, it is not on the footing that they are not binding; instead efforts are made to conceal the facts. It may of course be said that such rules are efficacious only so far as they concern issues over which states are unwilling to fight. This may be so, and may reflect adversely on the importance of the system and its value to humanity. Yet that even so much may be secured shows that no simple deduction can be made from the necessity of organized sanctions to municipal law, in its setting of physical and psychological facts, to the conclusion that without them international law, in its very different setting, imposes no obligations, is not 'binding', and so not worth the title of 'law'.

The concept of open texture on page 123 is very important.

This last case brings us to the borders of a wider topic which we discuss in the next chapter both in relation to the high constitutional matter of a legal system's ultimate criteria of validity and its 'ordinary' law. All rules involve recognizing or classifying particular cases as instances of general terms, and in the case of everything which we are prepared to call a rule it is possible to distinguish clear central cases, where it certainly applies and others where there are reasons for both asserting and denying that it applies. Nothing can eliminate this duality of a core of certainty and a penumbra of doubt when we are engaged in bringing particular situations under general rules. This imparts to all rules a fringe of vagueness or 'open texture', and this may affect the rule of recognition specifying the ultimate criteria used in the identification of the law as much as a particular statute. This aspect of law is often held to show that any elucidation of the concept of law in terms of rules must be misleading. To insist on it in the face of the realities of the situation is often stigmatized as 'conceptualism' or 'formalism', and it is to the estimation of this charge that we shall now turn.

What is a teleological view? (189-190)

This mode of thinking about nature seems strange when stated abstractly. It may appear less fantastic if we recall some of the ways in which even now we refer at least to living things, for a teleological view is still reflected in common ways of describing their development. Thus in the case of an acorn, growth into an oak is something which is not only regularly achieved by acorns, but is distinguished unlike its decay (which is also regular) as an optimum state of maturity in the light of which the intermediate stages are both explained and judged as good or bad, and the 'functions' of its various parts and structural changes identified. The normal growth of leaves is required if it is to obtain the moisture necessary for 'full' or 'proper' development, and it is the 'function' of leaves to supply this. Hence we think and speak of this growth as what 'ought naturally to occur'. In the case of the action or movements of inanimate things, such ways of talking seem much less plausible unless they are artefacts designed by human beings for a purpose. The notion that a stone on falling to the ground is realizing some appropriate 'end' or returning to its 'proper place', like a horse galloping home to a stable, is now somewhat comic.

Why is "how can international law be binding?" a bad question? (216-217)

To argue that international law is not binding because of its lack of organized sanctions is tacitly to accept the analysis of obligation contained in the theory that law is essentially a matter of orders backed by threats. This theory, as we have seen, identifies 'having an obligation' or 'being bound' with 'likely to suffer the sanction or punishment threatened for disobedience'. Yet, as we have argued, this identification distorts the role played in all legal thought and discourse of the ideas of obligation and duty. Even in municipal law, where there are effective organized sanctions, we must distinguish, for the variety of reasons given in Chapter III, the meaning of the external predictive statement 'I (you) are likely to suffer for disobedience', from the internal normative statement 'I (you) have an obligation to act thus' which assesses a particular person's situation from the point of view of rules accepted as guiding standards of behaviour. It is true that not all rules give rise to obligations or duties; and it is also true that the rules which do so generally call for some sacrifice of private interests, and are generally supported by serious demands for conformity and insistent criticism of deviations. Yet once we free ourselves from the predictive analysis and its parent conception of law as essentially an order backed by threats, there seems no good reason for limiting the normative idea of obligation to rules supported by organized sanctions.

How is law like a promise? (43)

To promise is to say something which creates an obligation for the promisor: in order that words should have this kind of effect, rules must exist providing that if words are used by appropriate persons on appropriate occasions (i.e. by sane persons understanding their position and free from various sorts of pressure) those who use these words shall be bound to do the things designated by them. So, when we promise, we make use of specified procedures to change our own moral situation by imposing obligations on ourselves and conferring rights on others; in lawyers' parlance we exercise 'a power' conferred by rules to do this. It would be indeed possible, but not helpful, to distinguish two persons 'within' the promisor: one acting in the capacity of creator of obligations and the other in the capacity of person bound: and to think of one as ordering the other to do something.

What does a threat of pinching have to do with this? (83)

Two further elements slightly complicate the elucidation of the notion of being obliged to do something. It seems clear that we should not think of B as obliged to hand over the money if the threatened harm was, according to common judgments, trivial in comparison with the disadvantage or serious consequences, either for B or for others, of complying with the orders, as it would be, for example, if A merely threatened to pinch B. Nor perhaps should we say that B was obliged, if there were no reasonable grounds for thinking that A could or would probably implement his threat of relatively serious harm. Yet, though such references to common judgments of comparative harm and reasonable estimates of likelihood, are implicit in this notion, the statement that a person was obliged to obey someone is, in the main, a psychological one referring to the beliefs and motives with which an action was done. But the statement that someone had an obligation to do something is of a very different type and there are many signs of this difference. Thus not only is it the case that the facts about B's action and his beliefs and motives in the gunman case, though sufficient to warrant the statement that B was obliged to hand over his purse, are not sufficient to warrant the statement that he had an obligation to do this; it is also the case that facts of this sort, i.e. facts about beliefs and motives, are not necessary for the truth of a statement that a person had an obligation to do something. Thus the statement that a person had an obligation, e.g. to tell the truth or report for military service, remains true even if he believed (reasonably or unreasonably) that he would never be found out and had nothing to fear from disobedience. Moreover, whereas the statement that he had this obligation is quite independent of the question whether or not he in fact reported for service, the statement that someone was obliged to do something, normally carries the implication that he actually did it.

What is the difference between being obliged and having an obligation? (82)

Two further elements slightly complicate the elucidation of the notion of being obliged to do something. It seems clear that we should not think of B as obliged to hand over the money if the threatened harm was, according to common judgments, trivial in comparison with the disadvantage or serious consequences, either for B or for others, of complying with the orders, as it would be, for example, if A merely threatened to pinch B. Nor perhaps should we say that B was obliged, if there were no reasonable grounds for thinking that A could or would probably implement his threat of relatively serious harm. Yet, though such references to common judgments of comparative harm and reasonable estimates of likelihood, are implicit in this notion, the statement that a person was obliged to obey someone is, in the main, a psychological one referring to the beliefs and motives with which an action was done. But the statement that someone had an obligation to do something is of a very different type and there are many signs of this difference. Thus not only is it the case that the facts about B's action and his beliefs and motives in the gunman case, though sufficient to warrant the statement that B was obliged to hand over his purse, are not sufficient to warrant the statement that he had an obligation to do this; it is also the case that facts of this sort, i.e. facts about beliefs and motives, are not necessary for the truth of a statement that a person had an obligation to do something. Thus the statement that a person had an obligation, e.g. to tell the truth or report for military service, remains true even if he believed (reasonably or unreasonably) that he would never be found out and had nothing to fear from disobedience. Moreover, whereas the statement that he had this obligation is quite independent of the question whether or not he in fact reported for service, the statement that someone was obliged to do something, normally carries the implication that he actually did it.

What are three recurrent issues? (6-8)

Two of these issues arise in the following way. The most prominent general feature of law at all times and places is that its existence means that certain kinds of human conduct are no longer optional, but in some sense obligatory. Yet this apparently simple characteristic of law is not in fact a simple one; for within the sphere of non-optional obligatory conduct we can distinguish different forms. The first, simplest sense in which conduct is no longer optional, is when one man is forced to do what another tells him, not because he is physically compelled in the sense that his body is pushed or pulled about, but because the other threatens him with unpleasant consequences if he refuses. The gunman orders his victim to hand over his purse and threatens to shoot if he refuses; if the victim complies we refer to the way in which he was forced to do so by saying that he was obliged to do so. To some it has seemed clear that in this situation where one person gives another an order backed by threats, and, in this sense of 'oblige', obliges him to comply, we have the essence of law, or at least 'the key to the science of jurisprudence'.1 This is the starting-point of Austin's analysis by which so much English jurisprudence has been influenced. A second such issue arises from a second way in which conduct may be not optional but obligatory. Moral rules impose obligations and withdraw certain areas of conduct from the free option of the individual to do as he likes. Just as a legal system obviously contains elements closely connected with the simple cases of orders backed by threats, so equally obviously it contains elements closely connected with certain aspects of morality. In both cases alike there is a difficulty in identifying precisely the relationship and a temptation to see in the obviously close connection an identity. The third main issue perennially prompting the question 'What is law?' is a more general one. At first sight it might seem that the statement that a legal system consists, in general at any rate, of rules could hardly be doubted or found difficult to understand. Both those who have found the key to the understanding of law in the notion of orders backed by threats, and those who have found it in its relation to morality or justice, alike speak of law as containing, if not consisting largely of, rules. Yet dissatisfaction, confusion, and uncertainty concerning this seemingly unproblematic notion underlies much of the perplexity about the nature of law. What are rules? What does it mean to say that a rule exists? Do courts really apply rules or merely pretend to do so? Once the notion is queried, as it has been especially in the jurisprudence of this century, major divergencies in opinion appear. These we shall merely outline here.

What are the two points of central importance in this chapter? (50-51)

Two points in this doctrine are of special importance and we shall emphasize them here in general terms in order to indicate the lines of criticism pursued in detail in the rest of the chapter. The first concerns the idea of a habit of obedience, which is all that is required on the part of those to whom the sovereign's laws apply. Here we shall inquire whether such a habit is sufficient to account for two salient features of most legal systems: the continuity of the authority to make law possessed by a succession of different legislators, and the persistence of laws long after their maker and those who rendered him habitual obedience have perished. Our second point concerns the position occupied by the sovereign above the law: he creates law for others and so imposes legal duties or 'limitations' upon them whereas he is said himself to be legally unlimited and illimitable. Here we shall inquire whether this legally illimitable status of the supreme lawgiver is necessary for the existence of law, and whether either the presence or the absence of legal limits on legislative power can be understood in the simple terms of habit and obedience into which this theory analyses these notions.

How does Hart distinguish between legislation and precedent? (124)

Two principal devices, at first sight very different from each other, have been used for the communication of such general standards of conduct in advance of the successive occasions on which they are to be applied. One of them makes a maximal and the other a minimal use of general classifying words. The first is typified by what we call legislation and the second by precedent. We can see the distinguishing features of these in the following simple non-legal cases. One father before going to church says to his son, 'Every man and boy must take off his hat on entering a church.' Another baring his head as he enters the church says, 'Look: this is the right way to behave on such occasions.'

What does Hart mean by aberrations? (144)

Up to a certain point, the fact that some rulings given by a scorer are plainly wrong is not inconsistent with the game continuing: they count as much as rulings which are obviously correct; but there is a limit to the extent to which tolerance of incorrect decisions is compatible with the continued existence of the same game, and this has an important legal analogue. The fact that isolated or exceptional official aberrations are tolerated does not mean that the game of cricket or baseball is no longer being played. On the other hand, if these aberrations are frequent, or if the scorer repudiates the scoring rule, there must come a point when either the players no longer accept the scorer's aberrant rulings or, if they do, the game has changed. It is no longer cricket or baseball but 'scorer's discretion'; for it is a defining feature of these other games that, in general, their results should be assessed in the way demanded by the plain meaning of the rule, whatever latitude its open texture may leave to the scorer. In some imaginable condition we should say that in truth the game being played was 'scorer's discretion' but the fact that in all games the scorer's rulings are final does not mean that that is what all games are.

Why does Hart mention witchcraft? (61)

We cannot, however, narrow our view of laws to the lifetime of their makers, for the feature which we have to explain is just their obdurate capacity to survive their makers and those who habitually obeyed them. Why is the Witchcraft Act law still for us, if it was not law for the contemporary French? Surely, by no stretch of language can we, the English of the twentieth century, now be said habitually to obey George II and his Parliament. In this respect, the English now and the French then are alike: neither habitually obey or obeyed the maker of this law. The Witchcraft Act might be the sole Act surviving from this reign and yet it would still be law in England now. The answer to this problem of 'Why law still?' is in principle the same as the answer to our first problem of 'Why law already?' and it involves the substitution, for the too simple notion of habits of obedience to a sovereign person, of the notion of currently accepted fundamental rules specifying a class or line of persons whose word is to constitute a standard of behaviour for the society, i.e. who have the right to legislate. Such a rule, though it must exist now, may in a sense be timeless in its reference: it may not only look forward and refer to the legislative operation of a future legislator but it may also look back and refer to the operations of a past one.

How does Hart describe discretion? (136)

We have discussed at some length the open texture of law because it is important to see this feature in a just perspective. Failure to do justice to it will always provoke exaggerations which will obscure other features of law. In every legal system a large and important field is left open for the exercise of discretion by courts and other officials in rendering initially vague standards determinate, in resolving the uncertainties of statutes, or in developing and qualifying rules only broadly communicated by authoritative precedents. None the less these activities, important and insufficiently studied though they are, must not disguise the fact that both the framework within which they take place and their chief end-product is one of general rules. These are rules the application of which individuals can see for themselves in case after case, without further recourse to official direction or discretion.

Besides generality, how also does the gunman's order differ from law? (23)

We must therefore suppose that there is a general belief on the part of those to whom the general orders apply that disobedience is likely to be followed by the execution of the threat not only on the first promulgation of the order, but continuously until the order is withdrawn or cancelled. This continuing belief in the consequences of disobedience may be said to keep the original orders alive or 'standing', though as we shall see later there is difficulty in analysing the persistent quality of laws in these simple terms. Of course the concurrence of many factors which could not be reproduced in the gunman situation may, in fact, be required if such a general belief in the continuing likelihood of the execution of the threat is to exist: it may be that the power to carry out threats attached to such standing orders affecting large numbers of persons could only in fact exist, and would only be thought to exist, if it was known that some considerable number of the population were prepared both themselves to obey voluntarily, i.e. independently of fear of the threat, and to co-operate in the execution of the threats on those who disobeyed. Whatever the basis of this general belief in the likelihood of the execution of the threats, we must distinguish from it a further necessary feature which we must add to the gunman situation if it is to approximate to the settled situation in which there is law. We must suppose that, whatever the motive, most of the orders are more often obeyed than disobeyed by most of those affected. We shall call this here, following Austin, 'a general habit of obedience' and note, with him, that like many other aspects of law it is an essentially vague or imprecise notion. The question how many people must obey how many such general orders, and for how long, if there is to be law, no more admits of definite answers than the question how few hairs must a man have to be bald. Yet in this fact of general obedience lies a crucial distinction between laws and the original simple case of the gunman's order. Mere temporary ascendancy of one person over another is naturally thought of as the polar opposite of law, with its relatively enduring and settled character, and, indeed, in most legal systems to exercise such short-term coercive power as the gunman has would constitute a criminal offence. It remains indeed to be seen whether this simple, though admittedly vague, notion of general habitual obedience to general orders backed by threats is really enough to reproduce the settled character and continuity which legal systems possess.

How are those who are mistaken about international law like Austineans? (217-218)

We must, however, consider another form of the argument, more plausible because it is not committed to definition of obligation in terms of the likelihood of threatened sanctions. The sceptic may point out that there are in a municipal system, as we have ourselves stressed, certain provisions which are justifiably called necessary; among these are primary rules of obligation, prohibiting the free use of violence, and rules providing for the official use of force as a sanction for these and other rules. If such rules and organized sanctions supporting them are in this sense necessary for municipal law, are they not equally so for international law? That they are may be maintained without insisting that this follows from the very meaning of words like 'binding' or 'obligation'. The answer to the argument in this form is to be found in those elementary truths about human beings and their environment which constitute the enduring psychological and physical setting of municipal law. In societies of individuals, approximately equal in physical strength and vulnerability, physical sanctions are both necessary and possible. They are required in order that those who would voluntarily submit to the restraints of law shall not be mere victims of malefactors who would, in the absence of such sanctions, reap the advantages of respect for law on the part of others, without respecting it themselves. Among individuals living in close proximity to each other, opportunities for injuring others, by guile, if not by open attack, are so great, and the chances of escape so considerable, that no mere natural deterrents could in any but the simplest forms of society be adequate to restrain those too wicked, too stupid, or too weak to obey the law. Yet, because of the same fact of approximate equality and the patent advantages of submission to a system of restraints, no combination of malefactors is likely to exceed in strength those who would voluntarily co-operate in its maintenance. In these circumstances, which constitute the background of municipal law, sanctions may successfully be used against malefactors with relatively small risks, and the threat of them will add much to whatever natural deterrents there may be. But, just because the simple truisms which hold good for individuals do not hold good for states, and the factual background to international law is so different from that of municipal law, there is neither a similar necessity for sanctions (desirable though it may be that international law should be supported by them) nor a similar prospect of their safe and efficacious use.

What does Hart say about a command and authority? (20)

We need not here concern ourselves with these subtleties. Although a suggestion of authority and deference to authority may often attach to the words 'order' and 'obedience', we shall use the expressions 'orders backed by threats' and 'coercive orders' to refer to orders which, like the gunman's, are supported only by threats, and we shall use the words 'obedience' and 'obey' to include compliance with such orders. It is, however, important to notice, if only because of the great influence on jurists of Austin's definition of the notion of a command, that the simple situation, where threats of harm and nothing else is used to force obedience, is not the situation where we naturally speak of 'commands'. This word, which is not very common outside military contexts, carries with it very strong implications that there is a relatively stable hierarchical organization of men, such as an army or a body of disciples in which the commander occupies a position of pre-eminence. Typically it is the general (not the sergeant) who is the commander and gives commands, though other forms of special pre-eminence are spoken of in these terms, as when Christ in the New Testament is said to command his disciples. More important—for this is a crucial distinction between different forms of 'imperative'—is the point that it need not be the case, where a command is given, that there should be a latent threat of harm in the event of disobedience. To command is characteristically to exercise authority over men, not power to inflict harm, and though it may be combined with threats of harm a command is primarily an appeal not to fear but to respect for authority. It is obvious that the idea of a command with its very strong connection with authority is much closer to that of law than our gunman's order backed by threats, though the latter is an instance of what Austin, ignoring the distinctions noticed in the last paragraph, misleadingly calls a command. A command is, however, too close to law for our purpose; for the element of authority involved in law has always been one of the obstacles in the path of any easy explanation of what law is. We cannot therefore profitably use, in the elucidation of law, the notion of a command which also involves it. Indeed it is a virtue of Austin's analysis, whatever its defects, that the elements of the gunman situation are, unlike the element of authority, not themselves obscure or in need of much explanation; and hence we shall follow Austin in an attempt to build up from it the idea of law. We shall not, however, hope, as Austin did, for success, but rather to learn from our failure.

What are the further class of laws which also confer powers? (28)

We shall consider later the attempts made by jurists to assimilate those laws which provide facilities or powers and say, 'If you wish to do this, this is the way to do it' to the criminal laws which, like orders backed by threats, say, 'Do this whether you wish to or not.' Here, however, we shall consider a further class of laws which also confer legal powers but, in contrast to those just discussed, the powers are of a public or official rather than a private nature. Examples of these are to be found in all the three departments, judicial, legislative, and administrative, into which government is customarily though vaguely divided. Consider first those laws which lie behind the operation of a law court. In the case of a court some rules specify the subject-matter and content of the judge's jurisdiction or, as we say, give him 'power to try' certain types of case. Other rules specify the manner of appointment, the qualifications for, and tenure of judicial office. Others again will lay down canons of correct judicial behaviour and determine the procedure to be followed in the court. Examples of such rules, forming something like a judicial code, are to be found in the County Courts Act, 1959, the Court of Criminal Appeal Act, 1907, or Title 28 of the United States Code. It is salutary to observe the variety of provisions made in these statutes for the constitution and normal operation of a law court. Few of these seem at first sight to be orders given to the judge to do or abstain from doing anything; for though of course there is no reason why the law should not also by special rules prohibit a judge under penalty from exceeding his jurisdiction or trying a case in which he has a financial interest, these rules imposing such legal duties would be additional to those conferring judicial powers on him and defining his jurisdiction. For the concern of rules conferring such powers is not to deter judges from improprieties but to define the conditions and limits under which the court's decisions shall be valid.

What does Hart mean by open texture? (128)

Whichever device, precedent or legislation, is chosen for the communication of standards of behaviour, these, however smoothly they work over the great mass of ordinary cases, will, at some point where their application is in question, prove indeterminate; they will have what has been termed an open texture. So far we have presented this, in the case of legislation, as a general feature of human language; uncertainty at the borderline is the price to be paid for the use of general classifying terms in any form of communication concerning matters of fact. Natural languages like English are when so used irreducibly open-textured. It is, however, important to appreciate why, apart from this dependence on language as it actually is, with its characteristics of open texture

What is Hart's point about Huckleberry Finn? (200)

Yet it is plain that neither the law nor the accepted morality of societies need extend their minimal protections and benefits to all within their scope, and often they have not done so. In slave-owning societies the sense that the slaves are human beings, not mere objects to be used, may be lost by the dominant group, who may yet remain morally most sensitive to each other's claims and interests. Huckleberry Finn, when asked if the explosion of a steamboat boiler had hurt anyone, replied, 'No'm: killed a *****.' Aunt Sally's comment 'Well it's lucky because sometimes people do get hurt' sums up a whole morality which has often prevailed among men. Where it does prevail, as Huck found to his cost, to extend to slaves the concern for others which is natural between members of the dominant group may well be looked on as a grave moral offence, bringing with it all the sequelae of moral guilt. Nazi Germany and South Africa offer parallels unpleasantly near to us in time.

Summarize Hart's criticism of the claim that "Treat like cases alike and different cases differently" is an adequate account of the meaning of justice. (164-167)

ask prof

What are the five natural facts that Hart discusses? (194-200)

read these pages but: human vulnerability, approximate equality, limited altruism, limited resources, limited understanding and strength of will.

Discuss the six reasons for the claim that law must confirm to morality beyond the minimum content of natural law. Then, discuss Hart's responses to each. (202-208)

read these pages but: power and authority, the influence of morality, interpretation, the criticism of law, principles of legality and justice, legal validity and resistance to law.

How does this relate to the Nuremberg trials (trials of Nazis held after World War II)? (208-212)

read these pages.

What are the four ways that moral rules and legal rules are different? (173-180)

read this pages but: importance, immunity from deliberate change, voluntary character of moral offences, the form of moral pressure.

The summary on pages 70-71 are useful and important.

read those


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