Hart on judges

Hart’s version of legal positivism faces a problem. He maintains that law is the union of primary and secondary rules. But, the objection goes, judges do not decide cases in the way that they would if it were true that the law consists in rules.

Today’s class discusses Hart’s attempt to solve this problem and his implicit criticism of the legal realists.

The penumbra

Laws could not communicate unless there was some settled meaning for the terms they use. That is, the people to whom the laws are addressed have to have some understanding of what they are meant to do under the law. But, for many laws, there will be a “penumbra” of cases that are not settled by the law (Hart 1958, 607). The settled meaning of the act prohibiting vehicles in the park is that automobiles are not permitted. But even if that is settled, it might not be clear whether skateboards are also prohibited: you could see how they might count as vehicles, or how they might not count, for the purpose of the statute.

This is not something peculiar to the law. It is a general feature of language. You know what I mean if I say the table in our classroom is brown. And you know it even though there are some points on the color spectrum where neither one of us would be sure if the color is brown or not.

But what happens when a judge is asked to decide a case that falls in the penumbra of a law, outside of its settled meaning? As Holmes and Frank observed, these sorts of cases suggest that the law is not a matter of applying logic to facts and rules. And that suggests that law is not a system of rules.

Hart was concerned with a point that goes beyond what Holmes and Frank said. It is that judges must take into account the way laws ought to be when they decide unsettled cases. And that, Hart thinks, involves mixing the two things that he thinks are separate: the way the law is and the way it ought to be.

Hart, along with Holmes, finds it clearer to say that in at least some of these cases, judges are legislating. They are making settled law where before there had been none.

There is another way of responding to this kind of ambiguity that Hart did not directly address. It involves claiming that judges actually do find settled meanings in the law. It’s just a kind of settled meaning that no one else had fully appreciated. This is the kind of judicial reasoning that I think Audrey was referring to when she talked about Supreme Court decisions that claim to find Constitutional rights that are implicit in the penumbras and emanations of the explicit amendments. I think the example she had in mind was Justice Douglas’s opinion in Griswold v. Connecticut (1965).

The foregoing cases suggest that specific guarantees in the Bill of Rights have penumbras, formed by emanations from those guarantees that help give them life and substance. … Various guarantees create zones of privacy. The right of association contained in the penumbra of the First Amendment is one, as we have seen. The Third Amendment, in its prohibition against the quartering of soldiers “in any house” in time of peace without the consent of the owner, is another facet of that privacy. The Fourth Amendment explicitly affirms the “right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” The Fifth Amendment, in its Self-Incrimination Clause, enables the citizen to create a zone of privacy which government may not force him to surrender to his detriment. The Ninth Amendment provides: “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” The Fourth and Fifth Amendments were described in Boyd v. United States … as protection against all governmental invasions “of the sanctity of a man’s home and the privacies of life.”

Douglas’s specific contention was that the amendments he cited did not just give rights to freedom of assembly and against forcible quartering of soldiers, search and seizure, and so on. He believed the amendments created a more general right to privacy that included the right to use contraception. I suspect that Frank, Holmes, and Hart would have all been at least mildly skeptical of that. Truth be told, I am too. But judges have a lot of training that no one else has and have the study of the law as their job. It isn’t absurd to think that between their training and exclusive focus on the law, they might discover truths that the rest of us, who think much less about the law, do not.

Does that mean the realists were right?

Sydney observed that many cases that judges hear are penumbral ones. Usually, people bring a case to trial rather than settling because they think they have a reasonable chance of winning. And if two sides think they might win, the law is not completely settled.

Does that mean the realists are right to say that law is whatever judges say it is? It’s not settled until the judge rules, after all.

Leo said that is too quick. The law is settled in a vast array of cases. That’s why we aren’t constantly in court. The realists, as Hart observed, exaggerate the significance of the penumbral cases (Hart 1958, 615).

Mollie added another point that is friendly to Hart’s point of view. There are rules that define the authority and role of the courts. Good point!

But what about judicial legislation?

Everyone we have read so far says that judges legislate in a significant number of cases. That cries out for more explanation. Can judges decide cases for any reason at all? If there are constraints on their decisions, do these come from the law or something else?

These are the sorts of questions that Dworkin will press against Hart. He thinks that they cannot be answered in a way consistent with Hart’s theory.

Key ideas

  1. What the “problem of the penumbra” is.
  2. How Hart thinks judges solve the problem.
  3. Why Hart thinks the realists exaggerate the problem.


Hart, H. L. A. 1958. “Positivism and the Separation of Law and Morals.” Harvard Law Review 71 (4): 593–629.