HLA Hart’s Concept of Legal Obligation

INTRODUCTION.

This essay will be about HLA Hart’s concept of legal obligation. It will be divided into two sections, the first one explaining what legal obligation is for Hart and in which situation an individual is under a legal obligation. The second one will analyse whether the account of the legal obligation provided by Hart is adequate or not by analysing some criticism it faces.

H.L.A. HART’S ACCOUNT OF LEGAL OBLIGATION

In The Concept of Law[1], Hart uses Austin’s notion of legal obligation as a starting point in order to explain his own account. In summary, Austin’s model treated the law as a body of commands laid down by a habitually obeyed sovereign and backed up by threats, meaning that the conditions outlined before were enough for a legal obligation to arise. Hart, however, criticised the model of law as coercive orders due to its lack of the idea of a rule.

Another characteristic that Austin’s model lacked, according to Hart, was the absence of the distinction between being obliged and having an obligation. To explain this difference, Hart provides an example of a gunman[2] who orders an individual to hand over the money with the threat of shooting if the order was not complied with. According to the theory of coercive orders, this scenario shows an example of obligation; however, the individual obeyed since he/she was obliged to act accordingly. Being obliged can compel an individual to act or abstain to act in a certain manner caused by fear of suffering a sanction. Meanwhile, having an obligation requires an individual to act or abstain to act in a certain manner because of the presence of an authoritative set of norms. The fact that an individual is under an obligation remains true even if the individual believed that no one would find out and had nothing to fear from disobedience[3].

According to Hart, the presence of an obligation binding on an individual implies the fact that there are rules imposing such. However, not all rules impose an obligation, and Hart gives the example of the rules of etiquette[4].

In a Hartian universe, the concept of legal obligation is closely linked to the concept of legal system. As long as there is a legal system, there would be legal obligation binding on an individual[5]. According to Hart[6], a legal system is composed of a combination of primary and secondary rules. Primary rules guide conduct, whereas secondary rules aid the former. In a Hartian legal system there are three secondary rules: rules of adjudication, recognition and change. Among the secondary rules, the rule of recognition is considered to be the most important as it enlightens individuals to recognise what is the authoritative source which is entitled to change primary rules or enact new ones. For Hart, a law is valid when it is enacted by an authoritative source recognised by the rule of recognition, this concept is referred to as the “sources thesis”[7]. According to Hart, in order for a rule to impose legal obligation, it must be legally valid; thus, it must be enacted form the authoritative source.

Hart further explains that rules can be understood from two different points of views:

• The external point of view[8]: the point of view of an observer where rules are seen as a regular pattern of conforming behaviour.
• The internal point of view[9]: the point of view of a participant who accepts the regular standard of behaviour as a guide of conduct and as a standard of criticism. The rules are treated as something that are ought to be complied with, which impose and obligate or confer rights.

Hart’s concept of the legal system is only based on the officials of the system recognising the authoritative source of law and accepting the rule of recognition and regarding it as something that is ought to be obeyed from an internal point of view[10]. The community members only have to comply with the primary rules of the system; hence they do not have to “accept” them from an internal point of view or recognising the rule of recognition. 

A further distinction present in a Hartian universe is present in the notion of ‘practice theory’, better explaining whether a rule is legally binding or not[11]. The ‘practice theory’ treats the social rules of a community as providing a pattern of conduct followed by most individuals of a community and a normative attitude to such a pattern of conduct is what Hart calls acceptance.

A rule would be imposing an obligation only when it satisfies three criteria[12]:

(1)   If it is supported by an insistent, general demand for conformity and accompanied by the application of substantial social pressure on those who deviate or threaten to deviate;

(2)   The rule is perceived to be important because it is believed to be necessary to maintain important and highly prized features of society.

(3)   The conduct required by the rule may benefit some individuals; however, it will also conflict with what others, who have a duty, may wish to do.

In his work, Hart distinguishes between legal obligation and moral obligation[13] however, these will not be discussed due to the word limits of this essay.

IS HART ACCOUNT ADEQUATE?

1st criticism

One of the problems in Hart’s concept of legal obligation, according to Ronal Dworkin[14], is its descriptive nature, as it is morally neutral and has not justificatory aim. Dworkin could not comprehend how Hart justified the imposition of a legal obligation by using the concepts primary and secondary rules, and rules conceived from an internal and external aspect of law. In Dworkin’s opinion[15], Hart failed to explain the normative nature of a conventional rule, which for Dworkin was, the existence of a justification, of some good moral grounds to explain why individuals were acting according to what rules required. According to him rules could not exist in a factual state of affair.  Hart’s social practice theory fails to justify why individuals are under an obligation, such as judges being under an obligation to follow social rules. For Dworkin[16], individuals follow a standard regular pattern of behaviour because diverging from that pattern can offend others. Social rules alone cannot impose an obligation, as it arises because of the moral basis that an individual has to respect the social rule. 

For some critiques[17], Dworkin analysis raises serious problems for Hart since the latter cannot claim that there must be a justification in order to render an obligation binding without abandoning positivism. This raises questions regarding the adequacy of his account of legal obligation. However, Hart is content with the descriptive nature of his model[18]. His model gives a general account of what law is, separating it from the realm of morality and making it possible for the law to be subject to moral criticism.

Hart states that Dworkin criticism is too strong, it doesn’t only require an individual who accepts the rules as duty-imposing and reason-giving to believe that there are good moral grounds or justification for obeying rules, but that such grounds actually exist[19]. What would the grounds for morally wrong rules be that are accepted by a society? For example, in the past it was prohibited for people of certain colour to use public facilities[20]. Minorities were treated as slaves and gender equality was not accepted. What are the moral grounds or justifications for such rules? Hart does not deny that a conventional rule can also be believed in morally, however, this is not the reason that it imposes a legal obligation on a community.  It is not possible to provide a justification for every single rule that imposes a legal obligation and an account that does such, would be inadequate.

The descriptive nature of Hart’s concept of legal obligation does not make it inadequate instead, it aids Hart’s analysis. Due to its descriptive nature, Hart’s account takes care of the controversy present in the positivism: those who are subject to a legal system have an obligation to obey unjust laws[21]. They may still have a legal obligation to obey that law, however, they do not have to. By separating law and morality, Hart makes it possible for an individual to recognise a morally objectionable rule and to not obey that rule, a feature that was not present in previous accounts provided by positivists such as Austin. As Hart stated, if a rule is so morally wrong, individuals in a community do not have to obey the rule[22].

2nd criticism.

Another objection to Hart’s concept of legal obligation is regarding the social factor present in Hart’s model.

Firstly, according to J.C. Smith[23], Hart's analysis ends up being similar to an Austinian account of a sanction-based theory of obligation. Smith states that:

“Hart's theory of law, because it attempts to explain the binding force of legal obligation in the purely factual terms of the existence within a legal system of rules, a departure from which is met with serious social pressure, is not any more able to provide a basis or meaning for the "ought" of legal obligation or of law than is the command and sanction theory of Austin.”[24]

Smith’s objection arises due to two factors, which leads him to believe that the fear of social pressure leads an individual to feel under an obligation and to act in a certain manner. Firstly, according to him, the way in which an obligation is legally binding must be explained in detail terms using the idea of “ought”. Secondly, he believes that everyone has to obey the obligation which is imposed by a rule and not just individuals who ‘accepts’ the rule from the internal point of view. What troubles him is how can a legal obligation arise from a legally valid rule which is not a social rule. In addition, there is also an ambiguity in Hart’s account, better explained by Benjamin C. Zipursky[25]: Hart suggests that legal obligations exist only where there are social rules that are generally complied. However, Hart also suggests that there can be individuals in a community who are not aware that they are under an obligation.

Barry Hoffmaster[26] gives a natural response to Smith’s concern. To answer Smith’s first concern, he stated that social pressure could function as a motive. To answer Smith’s second concern, he stated that the social pressure present for the need for conformity explains why everyone is under an obligation. 

Smith’s criticism does not make Hart’s concept of legal obligation inadequate. Hart has already criticised Austin and Holmes’ sanction-based account as improper, since both of them failed to understand the notion of legal obligation. Hart did think that obligation sometimes is accompanied by the pressure. However, he stated, not every person who has an obligation felt pressure, thus rendering Smith’s criticism incorrect. The adequacy of Hart’s account can be seen by the different notions present in his model (such as the difference between the internal and external point of view of the law and importance of understanding the law from the internal aspect) which helps him explain features other authors could not[27] .

Secondly, Hart gives no account of social criticism[28]. He suggests that obligation arises from rules later he introduces the need for the notion of general conformity as discussed above. These ideas give rise to problems for a social critic. If people want to rebel against an obligation they have, how can they do so? Obligation arises from rules and those rules need to satisfy the general conformity requirement, then how can an individual go against the general opinion? If rebellion was not possible, all the revolt would not happen and many major rights we fought for, such as democracy, gender equality and more would not be possible.

Frederick[29] proposes a solution to this problem by introducing a concept which Hart does not make: the distinction between rules. He introduces the difference between binding rules for a given group and binding rules for a given individual. According to him, one of the reasons that Hart does not introduces this distinction in his account is because he was more concerned with explaining rules accepted by a community. Hart does not think about rules affecting just an individual because there is no such law that is made just for specific individuals.

The lack of definition of the word social criticism is not something that could render Hart’s account of legal obligation inadequate. He provides us with adequate instruments that allow us to rebel when needed. The first point to note is that not all rules are backed up by social criticism in a Hartian legal system. Some rules define the procedures for making a valid will, contract, or marriage and do not impose duties or obligations, but instead they have the role of facilitating an individual’s life or conferring powers. Secondly, Hart did not elaborate on the concept of social criticism, so it is open to interpretation. The general idea of conformity does not mean that everyone has to accept the rule. It is impossible for there to be a universal consensus regarding a rule. The rules have to be accepted by an internal point of view just by the officials of the community, not by everyone[30]. Hart provides us with an account that allows individuals to say when a rule is morally iniquitous and should not be obeyed, leading individuals to rebel against that rule and improve our legal system. 

3rd problem

Roscoe E. Hill[31] argues that Hart’s concept of understanding legal obligation as the general idea of obligation is not adequate since it compromises Hart’s position as a positivist.

Hill argues that The Concept of Law presents two quite different methods for analysing the concept of legal obligation:

(1)   A traditional positivist analysis of legal obligation in terms of validity

(2)   the analysis of legal obligation in terms of "the general idea of obligation."

According to positivist doctrine, every valid law imposes a legal obligation. In Hart's system, therefore, a legal obligation arises from a rule which satisfies the requirement of the rule of recognition.  Hill underlines that since for Hart legal validity meant establishing legal obligation, he should have at least inserted a sentence stating that legal obligation could be analysed in the same way as legal validity. However, instead of doing that, Hart introduces the general idea of obligation that must be understood in order to understand legal obligation. For Hill, since for positivism, legal validity was enough to establish legal obligation. There was no need for the concepts of the general idea of obligation and its legal form to understand the idea of legal obligation.

In addition, there is an ambiguity in The Concept of Law[32] better explained by Frederick Siegler[33]. According to him, Hart provides a confused account of the relationship between rules and obligation. On one hand, while referring to obligations Hart talks about acts that people have an obligation to perform. On the other, Hart refers to an obligation which is common in legal writing. It, directly or indirectly, gives rise to obligation, as, for Hart, legal validity implies legal obligation.

However, Hill may be wrong in his argument, according to Barry Hoffmaster[34]. His view is that every legally valid rule imposes an obligation, however, in a Hartian legal system, there are also power-conferring rules and laws such as the Human Rights Act 1998. In addition, Hart clearly objected to the view that legal validity leads to obligation[35], individuals may have a legal obligation to obey the law however they do not have to follow it. An example of such is: individuals do not have to obey morally iniquitous rules such as the ones in the Nazi regime. This can be one of the reasons that lead Hart to introduce the general idea of obligation. Hart is presenting a wider notion of law, one that allows separating the questions of the legal validity of a rule and the morality of a rule. Because of such separation, people are more likely to resist morally iniquitous laws. Hart’s concept of legal obligation is adequate since it provides an instrument that would let people decide when they do not have to follow the legal obligation they have, for the better.

CONCLUSION

In summary, according to Hart, a legal obligation arises where an “accepted” legally valid rule by the officials of a community satisfies the three criteria outlined above. Hart’s account of legal obligation has been called.

Hart’s analysis of legal obligation is adequate. It explains features that other authors could not. His account provides individuals with instruments to evaluate the law and improve it.

His concept could be said to be ambiguous at some points, however, those ambiguities could be resolved once his concept of legal system and legal obligation is clear to the reader. In addition, by reading how those critiques explain Hart’s concepts in their articles, an individual can understand better Hart’s ideas.

Bibliography

Books

• H.L.A. Hart, The Concept of Law, (3rd Edition, Oxford University Press, 2012)
• Nigel Simmonds, Central Issues on Jurisprudence (5th edition, Thomson Reuters, 2018)

Articles

• Michael Payne, “Hart's Concept of a Legal System” (1976), Wm. & Mary L. Rev, Vol 18 Art. 4
• Frederick Siegler (1967) Hart on rules of obligation, Australasian Journal of Philosophy
• Benjamin C. Zipursky, Legal Obligations and the Internal Aspect of Rules, 75 Fordham L. Rev. 1229 (2006)
• Roscoe E. Hill, “Legal Validity and Legal Obligation” (1970), Yale Law Journal, Vol. 80
• H.L.A Hart “Positivism and the Separation of Law and Morals” (1958) Harvard Law Review 71, Vol. 71 No. 4 (593-629)
• Ronald M. Dworkin, “Social Rules and Legal Theory” (1972) Yale Law Journal, Vol. 81

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[1] H.L.A. Hart, The Concept of Law, (3rd Edition, Oxford University Press, 2012), 82,83,84

[2]Ibid, 85

[3] Michael Payne, “Hart's Concept of a Legal System” (1976), Wm. & Mary L. Rev, Vol 18 Art. 4

[4] N1, 85

[5] Nigel Simmonds, Central Issues on Jurisprudence (5th edition, Thomson Reuters, 2018), 169

[6] Ibid, 155

[7] N 1, 89

[8] N 5, 154

[9] Ibid

[10] N 5, 157

[11] N 1, 254,255

[12] Ibid, 86

[13] H.L.A Hart “Positivism and the Separation of Law and Morals” (1958) Harvard Law Review 71, Vol. 71 No. 4 (593-629)

[14] Ronald M. Dworkin, “Social Rules and Legal Theory” (1972) Yale Law Journal, Vol. 81

[15] Ibid

[16] Ibid

[17] Barry Hoffmaster, 'Professor Hart on Legal Obligation' (1977) 11 Ga L Rev 1

[18] N 1, Postscript

[19] Ibid

[20] Ibid

[21] N 17

[22] N 13

[23] J. C. Smith, Legal Obligation (taken from Benjamin C. Zipursky, “Legal Obligations and the Internal Aspect of Rules” (2006), 75 Fordham L. Rev. 1229)

[24] Ibid, 33

[25] Benjamin C. Zipursky, “Legal Obligations and the Internal Aspect of Rules” (2006), 75 Fordham L. Rev. 1229

[26] N 17

[27] N 1

[28] Frederick Siegler, “Hart on rules of obligation” (1967), Australasian Journal of Philosophy

[29] Ibid

[30] N 10

[31] Roscoe E. Hill, “Legal Validity and Legal Obligation” (1970), Yale Law Journal, Vol. 80

[32] N1

[33] Frederick Siegler (1967) Hart on rules of obligation, Australasian Journal of Philosophy

[34] N 17

[35] N 13