The chapter starts by stating that there are different kinds of laws that transcend beyond last chapter’s model of a general order. Hart divided them into three (3) categories, namely Content of the Law, Mode of Origin, and Range of Application. In Chapter 3, these types will be discussed separately, leaving to the next chapter a more fundamental criticism on which binds them together.
Part 1 (The Content of Laws): Criminal law and the law on Torts are branches of law where the model for general orders backed by threatsis analogous to, wherein damages are compensated based on the performance or non-performance of an obligation. This conduct is usually called a ‘breach of duty,’ and the compensation or other legal remedies are called as the ‘sanctions.’However, there are other equally important classes of law where the framework of general ordersbacked by threatsultimately fails, such as those in the law on Contracts, where it governs the formalities, not necessarily requiring persons to act in certain ways. Instead, they provide individuals with facilities to create, by certain procedures and subject to certain conditions, structures of rights and duties within the coercive framework of the law. This shows then how the law confers on individuals the power to dictate their legal relations with each other. The main difference between this class of laws compared to criminal law is that the former does not impose any punishment for not being able to comply with the statutes governing the formalities of creating such wills and contracts, whereas on the latter, the punishment is present. There appears then to be a difference between the laws that govern formalities or procedures (“if you wish to do this, this is the way to do it”) and those with criminal law, which is analogous to orders backed by threat (“Do this whether you wish to or not”).
Adding to this new class of law just discussed, it should be noted that this is also present on laws which confer legal powers that are public in nature, such as those rules governing the procedures of the judiciary. Who is conferred with the power to adjudicate? How do you make an appeal for a decision? What are admissible evidences? Those in the US’ Judicial Code, the concern on imposing the rules is not to deter judges from improprieties through punishments, but rather, it is to define the conditions and limits under which the court’s decisions shall be valid.
An example used by Hart in this chapter is a section from the Country Courts Act (1959), which read “A county court shall have jurisdiction to hear and determine any action for the recovery of land where the net annual value for rating of the land in question foes not exceed one hundred pounds.”This law confers to the court’s jurisdiction the ability to try actions for the recovery of land not exceeding one hundred pounds. In this example, if the court makes a judgment concerning lands with value exceeding one hundred pounds, the court nor the parties to the action actually commit an offense, which is the same case for two parties contracting an invalidagreement. Comparing this case regarding the Country Courts Act, which is public in nature, though with a private contract, the former is not extinguished by mere non-following of the stipulated rules, as the decision is conferred with legal authority. Unlike the private contract that is considered invalidor a nullityif the governing rules were not followed, the judicial decision is considered valid until it is quashedby a subsequent judgment made by a higher authority due to having exceeded its jurisdiction. On the legislative, the same is present when legislative power is conferred with a subordinate authority. The conferment of power should be made well inside the scope of the rules governing such action, and if it goes beyond the said rules, the legislation by the subordinate authorities may be tainted with invalidities as well. Sometimes a certificate that the procedures have been followed may by law be made conclusive as to matters of internal procedures, and this may also impose penalties to unqualified persons who exercise legislative power. This rules on penalty, though somehow similar in structure with that of criminal law, is radically different than the latter.
By making this distinction, Hart said that we have only made it only at the beginning, and that it still remains to be unaccomplished reducing these classes of law into a single simple type. Nevertheless, the itch for uniformityin jurisprudence is strong. There are alternative arguments for this, which great jurists have already dwelled upon.
Nullity as a Sanction:The first argument fastens on the nullitywhich ensues when some essential condition for the exercise of the power is not fulfilled. This, in turn, is like the punishmentattached to criminal law, though it may be conceded that the nullity is mere slight inconvenience when compared to actual punishments. Hart said that the extension of the idea of a sanction to include nullity is a source (and a sign) of confusion, as the parties involved may not consider the nullity as a ‘threatened evil,’ such as the case of the judge giving out orders (who has no interest in the outcome of the case) or an underage party who entered in to a contract. Another example is in the attestation for a valid will. In this case, if failure to comply with its essential conditions did not entail nullity, the rule itself could not be intelligibly said to exist without sanctions even as a non-legal rule. Unlike criminal laws, where it can be said that the it is logically possible and actually desirable that there be such rules even though no punishment or other eveil were threatened.
Power-conferring rules as fragments of laws: According to Kelsen, “Law is the primary norm which stipulates the sanction.”There is actually no law prohibiting murder, instead there is only a law directing officials to apply certain sanctions in certain circumstance to those who do murder. When looked at in this view, what is thought of as the content of the law is merely the antecedent in a rule which is directed not to the subjects, but to the officials. This then shows that the law-making power of Congress merely specifies the general conditions under which the courts are to apply sanctions. These forms are essentially “if-clauses.”(i.e. if the Congress so enacted…), which requires recasting of the statements of the laws. Hart says that this is a formidable theory, purporting to disclose the true, uniform nature of law latent beneath a variety of common forms which obscure it. The two versions of the theory (general order backed by threats and if-clauses) attempt to reduce apparently distinct varieties of legal rule to a single form alleged to convey the quintessence of law, which makes use of the sanction as a central element.
Distortion as the price of uniformity:This distortion effected by the recasting is worth considering for it illuminates many different aspects of law. In criminal law, members of the society as a whole is expected without aid to understand the rules, and to see that the rules apply to them or conform to them. It is only when there is breach do the officials come in and impose the related sanctions. By looking at it this way, the rules can be seen to be applied to them by them. It should also not be forgotten that criminal laws are imposed as a means of social control. However, the punishment for a crime is not the same as a tax on a course of conduct although both involve directions to officials to inflict the same loss of money. What differentiates the two is that the sanction in the former involves that of an offense or breach of duty, and the latter (tax) does not.
The theories presented two ideas, one which is less extreme and the other more extreme. Both of which have their advantages and implications, as to the implementation of both criminal and non-criminal laws. If we look at all law simply from the point of view of the persons on whom its duties are imposed, and reduce all other aspects of it to the status of more or less elaborate conditions in which duties fall on them, we treat as something merely subordinate, elements which are at least as characteristic of law and as valuable to society as duty. Why should then private laws or contracts be considered distinct from those that impose duties? To represent such rules as mere aspects or fragments of the rules of duty is to obscure the distinctive characteristics of law and of the activities possible within its framework.
Part 2 (The Range of Application): This part talks about the range of people to whom a legislation may apply. For example, Hart mentions here that there may be laws that do not apply to the lawmakers themselves, such as those applying to special classes of people only. In a monarch, he says, those who rule make laws that do not apply to themselves, but rather only to their subjects. He further states that the range of application of a law is always a question of interpretation. Legislation, as distinct from just ordering others to do things under threats, may perfectly well have such a self-binding force. He says that there is nothing essentially other-regarding about it. This then shows a top-to-bottom approach where a lawmaker has two personalities, where one is a legislator and the other the subject of legislation. When the same makes a law, the law may actually still apply to him in his own private capacity.
Hart then moves towards the concept of a promise, a model he characterizes as a far better modelthan that of coercive orders for understanding many, though not all, features of law. To promise is to create an obligation that the promisorshould fulfil in accordance with the rules binding him to such. So, when we promise, we make use of specified procedures to change our own moral situation by imposing obligations on ourselves and conferring rights on others. Like that of making a law, a promise pre-supposes rules that govern the process. In essence, these are the words that should be followed in order to create the and fulfil the obligations that they have deemed to fulfil.
Given this, Hart says that what is most needed as acorrective to the model of coercive orders or rules is a fresh conception of legislation as the introduction or modification of general standards of behaviour to be followed by the society generally. The legislator is not necessarily a giver of orders to another. Like a promisor, he exercises power conferred by rules, and such as the promisor, he falls within their ambits.
Part 3 (Modes of Origin): The enactment of a law is a deliberate act, and those who take part in legislation consciously operate a procedure for making law, just as the man who gives an order consciously uses a form of words to secure recognition of his intentions. The type of law which conflicts with this claim is custom. The first is whether “custom as such” is law or not. All societies have their own customs which is not part of their rule of law. For example, we take off our hats to lady. Non-compliance with this custom does not lead to legal consequences. This shows that custom is law only if it is recognizedas such by a particular legal system. The next issue is the meaning of “legal recognition,” leading to the question what does it actually mean to recognize customs legally?
In order to apply the doctrine of legal recognition, Hart says that we must look at the role of the sovereign and its role in the conception of law as coercive orders. According to this theory, law is the order of either the sovereign or of his subordinate whom he may choose to give orders on his behalf. This presents a relationship between a sovereign and of his subordinate, where the former’s orders are of higher importance than the latter’s, since the power conferred to the subordinate is only that which is delegated to him by the sovereign. He adds that the delegation may be of a tacitcharacter, such as those in the when a sergeant who himself regularly obeys his superiors, but at the same time orders his men to do certain things. However, if his superior orders him to stop the orders to his men, the sergeant would and shall obey.
It is in this light that customary rules which have the status of law in a legal system should be viewed. Until the courts apply them in particular cases, such rules are mere customs, in no sense law. This account of the legal status of customs, however, is open to two different criticisms. The first is that it is not necessarilythe case that until they are used in litigation, customary rules have no status as law. Just like laws which become operative once they have been legislated, why shouldn’t customs of certain defined kinds also be so? The answer made to this can be reduced to no more than the assertion that nothing can be law unless and until it has been orderedby someone to be so.
The second criticism of the theory that custom, when it is law, owes its legal status to the sovereign’s tacit order is more fundamental. Is it possible to treat the failure of the sovereign to interfere as a tacit expression of the wish that the rules should be obeyed? The main objection then is that, in any modern state, it is rarely possible to ascribe such knowledge, consideration, and decision not to interfere to the sovereign, whether we identify the sovereign with the supreme legislators or the electorate. It is true that in most legal systems, custom is a source of law subordinate to statutes, whose legal status the legislature could take away. However, failure to do this may not be a sign of the legislature’s wishes.
In what then does the legal recognition of custom consist? To what does a customary rule owe its legal status, if it is not to the order of the court which applied it to a particular case or to the tacit order of the supreme law-making power? The answers to this question, according to Hart, will be answered in the succeeding chapters.
Straight from the Hart 