As we saw, an early goal of Austin's positive theories was to replace prescriptive with descriptive terms in a theory of law. This was supposed to be a "definition" of law that was distinct from the evaluation of law. The command theory was a spectacular failure and most modern positive theories have followed Kelsen in positing instead an independent (of morality) realm of legal prescription. Kelsen's basic norm is mainly a procedural one. Any content requirement, he says, begins to look too much like it blurs the boundary between moral and legal systems of prescription.
H. L. A. Hart is a "giant" of Anglo-English legal theory. He follows Kelsen quite naturally though I do not remember Hart giving Kelsen much notice or credit. Hart is the focus of most of Ronald Dworkin's attacks in part because of Hart's great influence. You have to pull down the king to establish yourself!
Hart is a positivist but a particularly good one in that he soundly criticizes earlier positive theory. This makes him a natural target because people reason that if positive legal theory can work, Hart would be the one to make it work.
Hart's main development beyond Kelsen is to transform Kelsen's basic norm into a more complex analysis of law that distinguishes two kinds of "rules." Hart's explicit motive is explanatory rather than logical. He is trying to explain (as Austin could not) how we can coherently explain of the development from primitive to "evolved" legal systems.
A legal system, he says, consists first of "primary rules." These confer (legal) rights in duties and Hart does not try at all to eliminate such evaluative talk. Legal commands, along with enabling legislation, repealing, declaring etc., all create change or remove rights and duties. They do this whether or not they are backed by punishment.
The primary rules are valid if they follow from what Hart calls "secondary rules." We can view the evolution of a secondary rule structure as a sign a legal system is maturing. The secondary rules fall into three categories which remedy what Hart portrays as three "weaknesses" of primitive law.
Law is a complex, authoritative social decision process--a procedure for resolving disputes. Hart makes a distinction like that of Kelsen, between the "existence" of a basic norm and the validity of laws following from it. Like Kelsen, he has trouble explicating the normative force of the secondary rules. Hart has recourse to an "internal-external" analysis. The point of view for validity is internal. When we judge a law valid, we do so from the perspective of a member of the legal community-we take the secondary rules for granted. The secondary rules do not follow from any other rules. We can only "justify" them from the outside. Externally, then, Hart treats the normative status of secondary rules as a question "closed on fact." The fact is the fact of implicit internal acceptance. That a secondary rule is accepted is an external, descriptive fact. Inside the system, we view the secondary rules as norms. Outside (from the point of view of the sociologist) is only descriptive fact. This makes Hart's theory useful for analytic/scientific purposes.
However, it leaves us with a vestige of the problem we noticed in both Austin to Kelsen. How can a "brute fact" create an obligation (even a legal one)? Internally, how can blind acceptance make it normative? Positivism eventually flounders on this problem. We need more analysis of the internal point of view to account for the normative status-or it begins to look like an illusion (from the scientific point of view).
Hart's theory seemed for a while to have solved the "concept" of law. He worked in the style of British "ordinary language analysis" and examined and clarified a host of other legal concepts-many of which we will address in the latter portions of the course. What is interesting is that his primary/secondary analysis (along with Kelsen's) keeps the external, social scientist's point of view relevant to the answer to "what is law?" And it continues the positivist tradition of seeing the question as a conceptual or descriptive one.
Another interesting feature is that it construes the question as "What is A law?" It focuses mainly on the concept of a rule and when it is a legal rule. The core theory has little to say, beyond identifying the relevant categories of secondary rules, on questions of legislative justice or standards of judicial interpretation or the morality of compliance and enforcement. (What does the fact that a law is valid have to do with what we should do?) This problem was first highlighted by the realists who criticize positivism for ignoring especially the important question of judicial decision making.
Hart does address these questions when other scholars start questioning legal positivism. Essentially, he argues that those other questions are moral questions and the analysis of law has no bearing on them (we'll study one of his responses later). This seems to yield the subject of legal theory, as it does the standard of legislative justice and compliance, to theories like natural law. Others give more guidance on matters of civil disobedience, conscientious objection, legal reform etc. than Hart's theory can. Given his general inattention to questions of judicial decision, it makes us wonder what use (other than scientific classification) the theory has. To put the matter another way, if this is all law is, why would we be in favor of it? What is the point of having explicit rules of recognition, change, and adjudication?
The weakness in theory of adjudication (and controversy) was the point of attack from the realists. The revolt was strongest in the United States where the Supreme Court had evolved the power to declare legislation "unconstitutional." This power broadened after the civil war and sadly long after the bill of rights had been added. Modern legal scholars began to exploit a comparison between the constitution and "natural law" or "natural rights." (This was particularly so since natural rights phrases were included in the Bill of Rights as well as the Declaration of Independence.) Gradually the standards used in such judgments began to hint at a content-substantive justice and equality. The judiciary asserted a right to strike down statutes for violation not only of explicit constitutional restraints but also of "eternal principles of justice which no government has a right to disregard." This fueled a huge social debate in the United States about the courts taking over the role of the legislature. It, in turn, generated a new interest in substantive (less purely procedural and conceptual) legal theory.