14.2.1.1 The Concept of Law
This view on the law has been elaborated by the English philosopher of law Herbert
Hart (1907–1993). His main book wasThe Concept of Law, and we will focus on
that work.
To make the exposition easier to follow we will simplify Hart’s views somewhat, some-
times at the cost of a little distortion of Hart’s sophisticated ideas.
The title of Hart’s book is indicative for the question addressed in it. Hart is not
interested in the contents of the law of a particular jurisdiction but in the
characteristics of law in general. That is why he writes about theconceptand not
about the content of law.
Moreover, Hart approaches law as a social phenomenon. He considers his work
to be a study in descriptive sociology. It may be disputed whether Hart’s character-
ization of his own work is correct, but that does not subtract from Hart’s intention.
This intention is to study the law as a social phenomenon in order to identify the
general characteristics of this phenomenon.
14.2.1.2 Primary and Secondary Rules
One of the findings of Hart is that the law does not solely consist of rules that
prescribe behavior. In this connection, Hart introduces the distinction between
primary and secondary legal rules. Primary rules aim to guide behavior. They
include rules that prohibit theft, tell us to drive on the right hand side of the road,
or to compensate the damage that results from contractual default.
Next to primary rules, the law also contains secondary rules. These rules do not
prescribe behavior but have as their function to organize the legal system itself. In
this connection, one may think of rules that point out the organs of state and their
competences, rules that specify which of two conflicting rules has precedence, and
rules that govern legal procedures.
For our present purposes, one particular category of secondary rules is most
important, that is, the category of rules that indicates which other rules count as law.
Indeed, one of the most important conclusions of Hart’s theory is that the law itself
determines which rules are legal rules and which rules are not. The law does so
mainly by pointing out who has the power to make legal rules.
The underlying idea is that most law has been laid down. There are many bodies
that can create law, on the level of the EU, states that make treaties, national
legislators, including in common law countries the judiciary, subnational legislators
on the level of provinces and municipalities, and, on the bottom level, private
persons who create laws for themselves in the shape of contracts or last wills. All
these law creators succeed in making law because and to the extent that they were
empowered to do so. They received this power from legal rules, and in that way the
law itself determines what counts as valid law.
14.2.1.3 A Fallible Theory
Two comments must be made to the above characterization of valid law as law that
has been made by a law creator empowered by the law itself. The first comment is
14 Philosophy of Law 315