Hart and judges

Notes for February 6

Main points

If laws are rules you would think that a judge’s job would be easy: apply the rules to the facts presented in each case. But everyone knows it is not like that. A law might prohibit vehicles in the park but not explain exactly what counts as a vehicle, so a judge will have to decide if a bicycle counts as a vehicle for the purposes of the law.

Hart agrees with this point: the rules do not always determine a judge’s decision. When the rules do not determine a judge’s decision, Hart agrees that the judge’s decision should be driven by sensible considerations rather than a mindless search through statutes or past cases for anything resembling a rule.

His critics see this as a concession. As they see it, the ‘sensible considerations’ that judges use must be part of the law even though they are not rules. Hart thinks that judges are legislating when they reach decisions that go beyond the rules. He agrees that judges should be sensible when they make these decisions, but that is based on his belief that the law ought to be sensible rather than a belief that the law necessarily is sensible.

Two points

Hart’s chief arguments for his opinion come in the last paragraph of the section. There, he made two points.

One is that the realists exaggerate the significance of what Hart called penumbral cases. In most cases, the rules are clear. It is only when cases come to the higher courts that the rules start failing to determine an answer. In other words, in most cases, the question “what is the law?” is easily addressed by consulting the parts of the law that look very much like rules. People have to worry about what judges would say only in a small number of cases.

The other point concerns judicial legislation. Here I criticized both Hart and Holmes for saying far too little. Maybe judges do have to legislate, but surely there are some constraints on the considerations they can use. They can’t think like normal legislators, for example, by trying to favor their constituents.

Our next author, Ronald Dworkin, will argue that the law does include a set of legal principles that are not rules but have to be used by judges in order to decide cases.


After class Angela asked me some tough questions. For instance, what makes both Hart and Austin positivists? What do you call people who deny the separation of law and morality; what is their “ism,” if you will? And how are Hart, Austin, Holmes, and Frank all related to one another?

The first two questions are about classifications: what defines legal positivism and what “ism” is used for those who deny the separation of law and morality?

These are great questions but I’m not going to answer them. The reason why is that the answers I have found are not very useful: I have spent more time wondering about whether the people I read fit the classifications than I do about the substance of what they say, which is counterproductive. So I think it’s better to say simply that Austin believes laws are fundamentally commands, Hart thinks they are rules, and the realists believe laws are what judges say they are.

Lots of people insist that law and morality are not separate; there is no helpful category that includes them all. For our purposes, it will have to suffice that we have seen two reasons for saying that law and morality are necessarily connected.

  1. One moves from Holmes’s observation about the need to use considerations of about social welfare to a conclusion that Holmes did not draw, namely, that those considerations are part of the law.This is the line of thought that Hart is concerned with in §III of the article we discussed today.
  2. The other is Dworkin’s position about what he calls principles; we will discuss that on Tuesday. Austin, Hart, and Holmes all believe that there is a sharp difference between law and morality or, to put the same thing in other words, between the way the law is and the way it ought to be.

That brings us to the relationship between Austin, Hart, and the legal realists (Holmes and Frank). Here are some of the main differences, as I see them.

  1. Both Austin and Holmes treat legal obligations as necessarily involving the threat of punishment. Hart treats them as the product of rules that require behavior.

  2. Hart’s gunman example is his main point against Austin’s way of describing legal obligation.

    His contrast between the internal point of view on rules and the external point of view strikes me as being directed mainly against the realists. The realists describe questions about the law as requests for predictions about how the legal system will behave. Hart describes predictions about how rules work as taking the external point of view on rules.

    It has always seemed to me that the material about the external point of view should apply to Austin as well as it does to Holmes and Frank. But I have not come up with a satisfying way of explaining exactly how. So that is why when I talk about Hart’s views on legal obligation I pair the gunman example with Austin and the internal/external point of view points with the realists. If you think there should be an application to Austin as well, I agree; I just have trouble saying what it is.

  3. Austin believes laws must come from a sovereign. Hart believes they must come from rules.

    The realists have little to say about the source of the law, but they do not think the law is ever settled until judges have given their interpretation. I suppose you could say it is their view that judges are the source of law, but that sounds funny even for them.

Key concepts

  1. “Penumbral” cases.
  2. Hart’s reasons for thinking that it is better to say that judges legislate in deciding penumbral cases as opposed to finding the law in those cases.
This page was written by Michael Green for Philosophy of Law, Philosophy 34, Spring 2014. It was posted February 7, 2014.
Philosophy of Law