The Concept of Law is a 1961 book by the legal philosopher H. L. A. Hart and his most famous work. The Concept of Law presents Hart's theory of legal positivism—the view that laws are rules made by humans and that there is no inherent or necessary connection between law and morality—within the framework of analytic philosophy. Hart sought to provide a theory of descriptive sociology and analytical jurisprudence. The book addresses a number of traditional jurisprudential topics such as the nature of law, whether laws are rules, and the relation between law and morality. Hart answers these by placing law into a social context while at the same time leaving the capability for rigorous analysis of legal terms, which in effect "awakened English jurisprudence from its comfortable slumbers".
Hart's book has remained "one of the most influential texts of analytical legal philosophy", as well as "the most successful work of analytical jurisprudence ever to appear in the common law world." According to Nicola Lacey, The Concept of Law "remains, 40 years after its publication, the main point of reference for teaching analytical jurisprudence and, along with Kelsen’s The Pure Theory of Law and General Theory of Law and State, the starting point for jurisprudential research in the analytic tradition."
Background
The Concept of Law emerged from Hart's initial lectures as Oxford Professor of Jurisprudence following Arthur Goodhart's retirement, in 1952. Among Hart's early lectures on law that are expanded in the book is his 1953 essay titled, "Definition and Theory in Jurisprudence." Hart's discussion of Austin's legal positivism, the separation of law and morality, and the open-texture of legal rules can be seen in his April 1957 presentation of the Oliver Wendell Holmes Lecture at Harvard Law School titled, "Positivism and the Separation of Law and Morals." The book developed a sophisticated view of legal positivism.
Among the ideas developed in the book are: A critique of John Austin's theory that law is the command of the sovereign backed by sanction. A distinction between primary and secondary legal rules, where a primary rule governs conduct and a secondary rule allows the creation, alteration, or extinction of primary rules. A distinction between the internal and external points of view of law and rules, close to (and influenced by) Max Weber's distinction between the sociological and the legal perspectives of law. The idea of the rule of recognition, a social rule that differentiated between those norms that have the authority of law and those that do not. Hart viewed the rule of recognition as an evolution from Hans Kelsen's "Grundnorm", or "basic norm". A posthumous reply to Ronald Dworkin, who criticized legal positivism in general and especially Hart's account of law in Taking Rights Seriously, A Matter of Principle, and Law's Empire.
Persistent questions
Hart begins The Concept of Law with a chapter titled "Persistent Questions." In the chapter, he lays out what he describes as "three recurrent issues." Hart asks the following recurring three questions for legal theory: "How does law differ from and how is it related to orders backed by threats? How does legal obligation differ from, and how is it related to, moral obligation? What are rules and to what extent is law an affair of rules?"
Austin's "command theory" The starting point for the discussion is Hart's dissatisfaction with John Austin's "command theory": a jurisprudential concept that holds that law is command backed by threat and is meant to be ubiquitous in its application. Hart likens Austin's theory to the role of a gunman in a bank and tries to establish the differences between the gunman's orders and those made by law. (For instance, the gunman forces us to obey but we may not feel inclined to obey him. Presumably, obedience to the law comes with a different feeling.)
Hart identifies three such important differences: content, origin, and range. In terms of content, not all laws are imperative or coercive. Some are facilitative, allowing us to create contracts and other legal relations. In terms of origin, not all laws are commands of a sovereign backed by sanctions. Some are rules made by the people themselves, such as customary rules or constitutional rules. In terms of range, not all laws are general and abstract. Some are particular and concrete, such as judicial decisions or administrative orders.