Hart's positivism Notes for February 1

Main points

We began with criticisms of Austin’s account of sovereignty. Then we talked about Hart’s claim that law is the union of primary and secondary rules. We concluded with some observations about the rule of recognition. In particular, we noted that this rule is unlike the other rules in a legal system because it is not derived from any other rule.


Austin locates sovereignty in habits of obedience. Hart pointed out several cases that do not fit the model very well: changes in government and democracies. Rules do better with these cases, Hart maintains.

His fundamental point is that there is a distinction between recognizing a legal authority and doing things as a matter of habit. This leads him back to his familiar point about the internal aspect of rules.

Secondary rules

Every society has primary rules that prohibit unsociable behavior. But a society that operated only with primary rules would be severely limited. Hence, secondary rules. Law, according to Hart, is the union of primary and secondary rules.

The most important of these rules is the rule of recognition. It is the rule that people use to answer the question “what is law?” As the ultimate rule for the system, it is not derived from any other rule. Other rules may be valid even if they are not effective. They may be valid because they are derived from higher rules in the system even if people don’t follow them. But the rule of recognition for a given society exists only if people follow it. There is no higher rule from which it could be derived.

This page was written by Michael Green for Philosophy of Law, Philosophy 34, Spring 2010. It was posted February 2, 2010.
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