Hart's Concept of Law Lecture Five 2001
Obligation 99. "There is a difference, yet to be explained, between the assertion that someone was obliged to do something and the assertion that he had an obligation to do it". (ibid).
(1) Being obliged:- involves motives and beliefs, in terms of harm or unpleasant consequences; plus (i) serious not trivial harm; (ii) reasonable grounds to believe that the threat will be carried out. So "being obliged" is a psychological phenomenon.
(2) Having an obligation:- is "very different" [ p 81]. (i) Facts are not sufficient to warrant the statement that X had an obligation; a fortiori, facts about X's psyche are not sufficient; (ii) facts are not necessary; a fortiori, X may have an obligation irrespective of his mental state. The following passage develops the point and incidentally throws further doubt on the "freshness" of Hart's approach: 100. "The difference between being constrained to do something because of my needs or wishes and being constrained to do it irrespective of them is perhaps most easily discerned in the parallel between being 'obliged' and being 'obligated' to do it. To be, or to feel, obliged to do something is quite different from being, or believing myself to be, obligated to do it. For instance, I am obliged to put my name in my books, since I do not want them to be borrowed and not returned; but I desire to keep them as my own. It makes perfectly good sense to say: 'I had an obligation to tell the truth, but to get out of that scrape I was obliged to lie'. To be obliged to do something means that, to accomplish a given purpose, I have to do something I don't particularly want to do, or dislike doing. To be obligated to do something means to be under necessity of choosing to do something without consulting my desires". (L.W. Beck, Commentary on Kant's Second Critique, p.113). Further, Hart suggests, ever the linguistic philosopher, that "was obliged to" implies "he did" whereas "had an obligation" does not.
But, as Hart, acknowledges, even Austin appreciated the "general irrelevance" of psychological factors in an account of obligation and so he defined obligation in terms of the chance or likelihood of suffering evil: 101. "Some theorists, Austin among them, seeing perhaps the general irrelevance of the person's beliefs, fears, and motives to the question whether he had an obligation to do something, have defined this notion not in terms of these subjective facts, but in terms of the chance or likelihood that the person having the obligation will suffer a punishment or 'evil' ..." (Hart, op.cit., p.81) as illustrated by the following passages: 102. "... the chance of incurring the evil". (John Austin, op.cit., p.15) and 103. "... the smallest chance of ... the smallest evil". (John Austin, op.cit., p.16).
And this changes the analysis of duty from psychological judgments to predictions of suffering sanctions. You will recollect the advantages of this approach - it gives a crisp empirical analysis of "duty"; it demystifies and it consigns mysterious metaphysical lumber to the scrapheap: 104."This, in effect, treats statements of obligation not as psychological statements but as predictions or assessments of chances of incurring punishment or 'evil'. To many later theorists this has appeared as a revelation, bringing down to earth an elusive notion and restating it in the same clear, hard, empirical terms as are used in science. It has, indeed, been accepted sometimes as the only alternative to metaphysical conceptions of obligation or duty as invisible objects mysteriously existing 'above' or 'behind' the world of ordinary, observable facts. But there are many reasons for rejecting this interpretation of statements of obligation as predictions [and we have already seen some of these], and it is not, in fact, the only alternative to obscure metaphysics". (Hart, op.cit., pp.81-82). So Hart rejects this interpretation of duty and rehearses the standard arguments against it [p 82]:
(1) Deviation from a rule is not merely grounds for predicting that hostile reaction or a sanction is likely to occur; but a reason or justification for that reaction; i.e the predictive analysis ignored the internal aspect of rules.
(2) If (i) "X has an obligation" means (ii) "X is likely to suffer a sanction", then it would be contradictory to say that X has an obligation but there is no chance of his suffering a sanction. But this is not a contradiction. Therefore (1) does not mean (ii). Unless it was generally true that sanctions were likely to be implemented, there would br little point in making statements about obligations. Still it must be recognised that the statement that "X has an obligation" under a rule and the prediction that "X is likely to suffer a sanction" are not synonymous.
Hart explains "having an obligation" thus:
(1) It implies the existence of a rule, making certain types of conduct a standard;
(2) It functions to apply a general rule; i.e. to say that this case falls under a rule; i.e. to draw a legal conclusion. However, says Hart, though "having an obligation" implies the existence of a rule, yet the existence of a rule does not always imply an obligation; i.e. "He ought to"and "he has an obligation" are not interchangeable expressions; i.e "ought" has more meanings than one - it may refer not only to a duty but also to a power. [NB Normative modalities]
The marks of a duty-imposing rule are as follows:-
(1) The general demand for conformity is insistent and the social pressure brought to bear is great ... 105. "... when physical sanctions are prominent or usual among the forms of pressure, even though these are neither closely defined nor administered by officials but are left to the community at large, we shall be inclined to classify the rules as a primitive or rudimentary form of law". (Hart, op.cit., p.84). This is almost an admission that "sanction" is definitive of "law". This contrasts sharply with an earlier view ... 106. "Both [Bentham's and Kelsen's uniformity theses], make the sanction a centrally important element, and both will fail if it is shown that law without sanctions is perfectly conceivable". (Hart, op.cit., p.38). Even so ... 107. "... the insistence on importance or seriousness of social pressure behind the rules is the primary factor determining whether they are thought of as giving rise to obligations". (Hart, op.cit., p.84).
(2) Duty imposing rules are "important" . They are 108. "... thought important because they are believed to be necessary to the maintenance of social life or some highly prized feature of it". (Hart, op.cit., p.85).
(3) Duty imposing rules are not consensual ... 109. "... generally recognised that the conduct required by these rules may, while benefiting others, conflict with what the person who owes the duty may wish to do". (ibid). Above all we must not misconceive obligation as consisting in a feeling of compulsion or pressure experienced by those who have obligations ... 110. "To feel obliged and to have an obligation are different though frequently concomitant things". (Hart, op.cit., p.86).
D-Rule Society: In the third section of Chapter V Hart builds up from a primitive society relying on "customary law" - what hart calls "primary rules of obligation" - to a modern complex legal system in order to highlight the importance of his "power-conferring rules" . Hart postulates a community without legislature, courts or officials, wherein only a minimalist content is supposed in the rules of that community; e.g. restrictions on the fee use of violence, theft and deception. Such a society may exhibit a tension between those who accept the rules and those who don't and who obey through fear. Yet this latter, given the loose structure of the society must be in a minority. Such societies are possible and indeed have existed and do exist. But sch a situation is defective. It lacks an authoritative structure for settling disputes about and doubts as to the scope and meaning of the rules. It will lack an organ of final resort. Such an organ depends on rules other than D-rules which is the only kind of rules the society has. So one major defect is uncertainty.
Another defect is the static nature of its rules. [take care ! This is not the Kelsenian meaning of the word with which some of you may already be familiar] The only mode of change is the slow process of decay and growth; D-rules are like Topsy - the "just growed". There is no procedure for deliberate change; for eliminating old rules or introducing new ones; no possibility of adapting the D-rules to changing social conditions. Further, the rules may be static2 in a second sense. Individuals would have no power to release others from the incidence of their duties under a rule; i.e. all "law" would parallel the criminal law of modern states; the power to impose or waive a duty depends upon rules of a different kind to D-rules, which is the only kind f rules such a society has.
Thirdly, such a set-up would be inefficient. Disputes would be unsettled and interminable. Further, punishment, not being vested exclusively in officials would be uncertain and wasteful. Vendettas would develop. So there are three defects of a D-rule society: (1) uncertainty; (2) static nature of laws; and (3) inefficiency. What is the solution? 111. "The remedy for each of these three main defects in this simplest form of social structure consists in supplementing the primary rules of obligation with secondary rules which are rules of a different kind". (Hart, op.cit., p.91). [So does "union" mean "supplementing" ?] The introduction of secondary rules thus marks ... 112. "... a step from the pre-legal into the legal world... convert the regime of primary rules into what is indisputably a legal system... law may most illuminatingly be characterised as a union of primary rules of obligation with such secondary rules". (ibid). Hart regards the development of P-rules as very important, perhaps socially as important to communities as the invention of the wheel: 113. "Introduction of rules which are certainly different from each other, as well as from the primary rules of obligation which they supplement, they have important features in common and are connected in various ways... on a different level from the primary rules, for they are all about such rules: in the sense that while primary rules are concerned with the actions that individuals must or must not do, these secondary rules are all concerned with the primary rules themselves. They specify the ways in which the primary rules may be conclusively ascertained, introduced, eliminated, varied, and the fact of their violation conclusively determined". (Hart, op.cit., pp.91-92).
Ross has argued that ... 114."... any norm of competence can be transcribed as a norm of conduct, whereas the converse does not hold true". (Alf Ross, Directives and Norms, London, 1968, p.120) and it is tempting to identify "norms of competence" and P-rules on the one hand and "norms of conduct" and D-rules on the other. On such a view secondary rules are less fundamental than primary rules and can be analysed in terms of the latter. On this view "the key to the science of jurisprudence" might be found in a reduction of P-rules to D-rules, a reduction which is only possible if both "types" of rules are in fact of te same logical type, and not, as Hart holds in the union of these different type of rules. So once some doubt is thrown on the view that P-rules are nor necessarily related to D-rules.
Furthermore, the expression "rules about rules" is elliptical for rules about human behaviour. Rules themselves cannot "behave" as people behave. The "behaviour" of rules cannot be "regulated" as the behaviour of people can be. Borrowing a favourite criticism from Hart: to distinguish rules about the behaviour of people from rules about rules is to distort the notion of a rule and then related notion of "rule-governed behaviour". It is a virtue of all D-rule analyses of law that they maintain a clear perception that rules regulate human behaviour ... 115 ."By 'norm' we mean that something ought to be or ought to happen, especially that a human being ought to behave in a specific way". (Hans Kelsen, The Pure Theory of Law, p.4).
(2) Uncertainty is overcome by a rule of recognition which stipulates criteria for the identification of D-rules. This "rule" sets up an authoritative process for disposing of doubts about the existence of D-rules. The existence of this rule of recognition is exhibited by its "acknowledgment"; i.e. there is an acknowledged or accepted rule or recognition which is ...
116. "... a rule for the conclusive identification of the primary rules of obligation". (Hart, op.cit., p.92). Hart admits that such a "rule of recognition" in a modern socierty would be "very complex" [p 92] and suggests "enactment by a specific body" or "long customary practice" as possible candidates. Further, he allows, as he must, that such a rule might include reference to a "hierarchy of sources"; e.g. that statute can override customary law. Thus the rule of recognition introduces a systematic note ... 117. "By providing an authoritative mark it introduces, although in embryonic form, the idea of a legal system: for the rules are now not just a discrete unconnected set but are, in a simple way, unified. Further, in the simple operation of identifying a given rule as possessing the required feature of being an item on an authoritative list of rules we have the germ of the idea of legal validity". (Hart, op.cit., p.93).
(2) The Static Nature of Law:- is overcome by rules of change; i.e. rules by which legislative activity is regulated. These rules will be very complex and will exhibit a close connection with the rule of recognition because it, too, will refer to legislation. The point is that the rule of recognition may be vague and general; the rules of change, however, fill in the details as to change. Rules of change resemble rules conferring powers which allow individuals to vary their legal positions under primary rules. Such private power conferring rules provide society with some of its chief amenities. Rules of change, for Hart, are public power-conferring rules. Thus there is a "kinship" [p 94] between rules of change and private p-rules.
Hart seeks to fortify his claim by praying Kelsen in support ... 118."... as recent theory such as Kelsen's has shown, many of the features which puzzle us in the institutions of contract or property are clarified by thinking of the operations of making a contract or transferring property as the exercise of limited legislative powers by individuals". (Hart, op.cit., p.94). Now Kelsen explained "rights, in the specific technical sense" as the power to participate in the creation of general or individual norms". It is interesting to note that hart, while feeling free to call upon Kelsen for support, maintains a distinction between public and private powers which Kelsen denies because it is not justified on the analysis of legal function. Hart, of course, believes that assimilating all law to one form would distort the social function of law. But is he not in danger of doing the same by assimilating private power conferring rules and rules of change? But if he does not assimilate them does he nt distort the legal function?
(3) Inefficiency is remedied by rules of adjudication which identify adjudicators and define procedure. Those rules, though "at a different level" [p 94] from D-rules may be D-rules in that they may, but need not impose duties on officials; yet they do confer powers, e.g. to try cases and impose penalties, etc.
This raises some doubts as to whether the D-rule/P-rule split is exhaustive and one might note that the distinction between primary and secondary rules is not entirely parallel to that of D-rules and P-rules although we lack an adequate definition of a primary rule other than by reference to D-rules. In any event, Hart seems dazzled , perhaps by his own brilliance ... 119. "If we stand back [i.e. we have to "stand back" ... [there once was a window cleaner who stepped back to admire his work ...] and consider the structure which has resulted from the combination of primary rules of obligation with the secondary rules of recognition, change and adjudication, it is plain that we have here not only the heart of a legal system, but a most powerful tool for the analysis of much that has puzzled both the jurist and the political theorist". (Hart, op.cit., p.95).
Having developed his image of the D-rule society and the impact of P-rules, Hart returns to his claim that it is in the union of primary and secondary rules that we find a tool for elucidating "specifically legal concepts" [p 94] e.g. obligation, rights, validity and sources of law, legislation, jurisdiction, sanction, etc. But it can help, too, with interdisciplinary concepts ... 120."The concepts (which bestride both law and political theory) of the state, of authority, and of an official require... analysis...". (ibid). And this is so because these concepts relate to the internal aspect of rules; Hart's "key" allows us to resist the hard, empirical, scientific, "external" viewpoint which cannot reproduce the "internal aspect" and it thus allows us to understand these concepts. But - surprise ! - 121. "The union of primary and secondary rules is at the centre of a legal system; but it is not the whole, and as we move away from the centre, we shall have to accommodate... elements of a different character". (Hart, op.cit., p.96). Surprisingly, the "powerful tool" - as Hart calls it - seems already to be losing some of its power ! So (1) we do not get a detailed analysis of the concepts which Hart lists; and (2) A comparison of Hart's Concept with Kelsen's Pure Theory of Law or General Theory of Law and State will reveal that the latter provide such analyses, based upon the concept of a norm, which exhibits the "immanent meaning of law". Thus Hart's much heralded "fresh start" reduces to the old truth that we cannot analyse normative concepts in factual terms. He does not provide analyses; and if he had done so it might have revealed what Hart was at pains to deny, namely that such an analysis in no way distorts social function because as logical analysis it is neutral re social function.
Chapter VI The Rule of Recognition - 122. "Hart's concept of a 'rule of recognition' is conceptually too simple to represent the complex and varied law-identifying phenomena operative in modern legal systems". (R.S. Summers, "Notes on criticism in legal philosophy - an introduction", in More Essays in Legal Philosophy, ed. R.S. Summers, Oxford, 1971, p.9). The rule of recognition provides private persons and officials with authoritative criteria for identifying primary rules of obligation. So how do we locate it? 123. "The existence of this simple form of the rule of recognition will be manifest in the general practice, on the part of officials, or private persons, of identifying the rules by this criterion". (Hart, op.cit., p.98) and 124. "... the rule of recognition is not stated, but its existence is shown in the way in which particular rules are identified, either by courts or other officials or private persons or their advisers". (ibid).
It would seem therefore that the Rule of Recognition is a rule regarded from the external point of view in which case it simply cannot confer validity or "oughtness" on the rules it authorises, Thus there would be no normativity. But Hart holds that ... 125."... the use of unstated rules of recognition, by courts and others in identifying particular rules of the system is characteristic of the internal point of view". (Hart, op.cit., p.99). By applying it, the courts and officials manifest their acceptance of it; they acknowledge it and hence - presumably - it is valid. But the distinction Hart draws between an internal and an external use of the Rule of Recognition is slender - To say, "It is the law that ..." is to use the rule "internally" whereas to say, "In England they recognise as law ..." is to use it "externally" [see p 99] Thus the |Rule of Recognition is something which can be sociologically ascertained; an external statement which merely records the fact that others use it. The internal statement is used by one who accepts the rule but does not say so - i.e. as Kelsen would say, one who "presupposes the rule as valid". But validity, says Hart, can be elucidated only by reference to the internal, to the external point of view: 126. "... the statement that a particular rule is valid means that it satisfies all the criteria provided by the rule of recognition". (Hart, op.cit., p.100). 127. "The rule of recognition providing the criteria by which the validity of other rules of the system is assessed is in an important sense, which we shall try to clarify, an ultimate rule: and where, as is usual, there are several criteria ranked in order of relative subordination and primacy one of them is supreme". (Hart, op.cit., p.102) and 128 "... a criterion of legal validity or source of law is supreme if rules identified by reference to it are still recognised as rules of the system, even if they conflict with rules identified by reference to the other criteria, whereas rules identified by reference to the latter are not so recognised if they conflict with the rules identified by reference to the supreme criterion". (Hart, op.cit., p.103).
The rule of recognition is ultimate in the following way. Consider a regulation requiring X. Is it valid? Yes, because it has been made in accordance with the powers conferred by Rule W. But is Rule W valid? Yes, again, if it has been authorised by statute V. But is statute V, valid? Still yes, if it has been authorised by the Rule of Recognition (U) that what the Queen in Parliament enacts is law. Here, says Hart, we can go no further: 129. "... we are brought to a stop in inquiries concerning validity: ... we have reached a rule [for] which ... there is no rule providing criteria for the assessment of ... legal validity". (Hart, op.cit., p.104).
There are, says Hart, many questions which can be asked about such a rule but we cannot ask if it is legally valid. When we ask questions about the Rule of Recognition we have moved from an internal question of validity to an external statement of fact which an observer might make even if he did not accept it: 130."... when we move from the statement that a particular enactment is valid, to the statement that the rule of recognition of the system is an excellent one and the system based on it is one worthy of support, we have moved from a statement of legal validity to a statement of value". (Hart, op.cit., pp.104-105). Hart thus criticises Kelsen ... 131. "Some writers ... have expressed this by saying that, whereas the legal validity of other rules of the system can be demonstrated by reference to it, its own validity cannot be demonstrated but is 'assumed' or 'postulated' or is a 'hypothesis'. this may, however, be seriously misleading". (Hart, op.cit., p.105) because, for Hart, the Rule of Recognition is not "valid" but "accepted as appropriate" [p 105]: 132. "No ... question can arise as to the validity of the very rule of recognition which provides the criteria; it can neither be valid nor invalid but is simply accepted as appropriate for use in this way". (Hart, op.cit., pp.105-106). Further, says Hart, to talk of the Rule of Recognition as "valid" obscures ... 133. "... the essentially factual character [of the rule]". (Hart, op.cit., p.106). Hart also holds that the Rule of Recognition is included in a legal system [p 106] but that it is nonetheless unlike other legal rules because ... 134. "The assertion that it [the Rule of Recognition] exists can only be an external statement of fact ... Its existence is a matter of fact". (Hart, op.cit., p.107).
There are three points that I want to make:
(1) Hart's rule of recognition is a sociological phenomenon; it is a description of the way people, particularly legal organs, behave. But as a sociological description it s rather threadbare. It amounts merely to the assertion that [some of those] within a legal system accept that they ought to act as they actually do act. This is perhaps the point of Summers' jibe  !
(2) Hart holds that rules within a legal system can be said to be valid; i.e. they are standards, or norms, stipulating what ought to be. But as Kelsen puts it, the reason for the validity of a norm can only be another norm, not a fact. But Hart maintains that the reason for the validity of [all] the rules within a legal system is the Rule of Recognition which is a fact. He then derives a system of normative statements from a factual description - in direct contradiction of Hume's logical dictum of not deriving an "ought" from an "is". Even if it is true that the Rule of Recognition is "accepted" that, too, is a fact. Why it ought to be accepted can only be answered in terms of another norm; but there is no higher norm for Hart. But if, as sometimes appears to be Hart's position , the Rule of Recognition is a complex of constitutional norms, the question why it is valid must be answered by pointing out that only by presupposing its validity , i.e. its "oughtness" can it be held to confer validity or "oughtness" upon inferior legal rules; but that would be to embrace the Kelsenian position which Hart describes as "seriously misleading" [p 105].
(3) For Hart, "The assertion that it [the Rule of Recognition] exists can only be an external statement of fact [p 107]. Dealing with "new questions", specifically with the light his Rule of Recognition sheds on constitutional law and convention, Hart asserts ... 135. "... we need to remember that the ultimate rule of recognition may be regarded from two points of view: one is expressed in the external statement of fact that the rule exists in the actual practice of the system; the other is expressed in the internal statements of validity made by those who use it in identifying the law". (Hart, op.cit., p.108). Not only is there a contradiction here, but also there is confusion. The Rule of Recognition is simultaneously two things:
(i) externally, a sociological description;
(ii) internally, a norm presupposed as valid.
Thus if one strips away the methodological syncretism, one finds that Hart, despite his emphatic denials, closely approaches a near-Kelsenian position - viz, that the validity of a legal order rests upon a presupposed basic norm which presupposition is conditioned by its referring to a by and large effective legal order: 136. "There are ... two minimum conditions necessary and sufficient for the existence of a legal system. On the one hand those rules of behaviour which are valid according to the system's ultimate criteria must be generally obeyed, and, on the other hand, its rules of recognition specifying the criteria of legal validity and its rules of change and adjudication must be effectively accepted as common public standards of official behaviour by its officials. The first condition is the only one which private citizens need satisfy ... The second condition must also be satisfied by the officials of the system". (Hart, op.cit., p.113). But this means that it does not matter whether or not the citizens regard the law as determining what they ought to do. It may be that in 137 ... a healthy society ..." (ibid).they do, but because they need not regard law in this way in order for a legal system to be valid, acceptance cannot be taken as the criterion of a legal system. In so far as it is enough that their external behaviour conforms to the rules (for whatever reason) even Austin's "habit of obedience" is adequate. Again this, too, supports the Kelsenian or Rossian line that law, strictly speaking, is a system of norms directed towards the behaviour of officials and only derivatively towards the conduct of private citizens. So, I conclude that the internal point of view is "doubly" internal; not only are the rules directed inwards towards officials but these rules are normative or constitute an "ought-to-be" only for the officials. And Hart admits that ... 138. "In an extreme case the internal point of view with its characteristic normative use of legal language ... might be confined to the official world. In this more complex system, only officials might accept and use the system's criteria of legal validity. The society in which this was so might be deplorably sheeplike; the sheep might end in the slaughterhouse. But there is little reason for thinking that it could not exist or for denying it the title of a legal system". (Hart, op.cit., p.114).
H.L.A. Hart, The Concept of Law, Chapter VII, "Formalism and Rule-Scepticism" Here, we are concerned to clarify Hart's position relative to two extreme views known as "formalism" and "rule-scepticism". The latter is of particular relevance to Hart's main thesis since the rule-sceptic wing of American Realism (much as the later "Crits") denies the status of rules in an elucidation of law, a position thus diametrically opposed to Hart's. Further, Hart's theory of meaning (of general terms) is developed in Chapter VII and is worthy of independent consideration.
Rules (for Hart) involve classifying particulars as instances of general cases and thus (for Hart) wherever there is anything that we are prepared to recognise a rule, there are clear, indisputable cases falling under it, and other cases which are certainly outside its terms. Hart speaks of a "core of certainty" and a "penumbra of doubt" [at p.119] and insists that the latter cannot be eliminated; that rules have fuzzy edges or open-texture. See passage 139: "Nothing can eliminate this duality of a core of certainty and a penumbra of doubt when we are engaged in bringing particular situations under general rules". (Hart, op.cit., p.119). This alleged "defect" is often exaggerated. Some claim that there are no rules and that those who elucidate law in terms of rules are overly formal. Hart seeks a middle way between formalism or "rule-fetishism" and rule-scepticism. Rule-fetishism is a condition akin to word-magic according to which rules are fixed, and capable of providing answers to all and every possible fact situation. This view, that all legal decisions are logical derivations from pre-existing rules has been stigmatised as "mechanical jurisprudence" and is an implausible and inadequate account of the judicial process. See passage 140: "The vice known to legal theory as formalism or conceptualism consists in an attitude to verbally formulated rules, which both seeks to disguise and to minimise the need for such choice [i.e. judicial discretion], once the general rule has been laid down". (Hart, op.cit., p.126) and **141: but "... we should not cherish, even as an ideal, the conception of rule so detailed that the question whether it applied or not to a particular case was always settled in advance, and never involved, at the point of actual application, a fresh choice between open alternatives". (Hart, op.cit., p.125).
N.B. The logical reduction of legal concepts to one fundamental concept, or of legal rules to one logical form ( for example, the "canonical form of a norm":- If A is, B ought to be") does not imply that the judicial process is a watertight derivative system. Analytical jurisprudence is not and does not entail "mechanical jurisprudence". See, further, passage 142: "Particular fact situations do not await us already marked off from each other, and labelled as instances of the general rule". (Hart, op.cit., p.123); and 143: "Canons of 'interpretation' cannot eliminate, though they can diminish these uncertainties; for these canons are themselves general rules for the use of language, and make use of general terms which themselves require interpretation. They cannot, any more than other rules, provide for their own interpretation". (ibid). At 144 Hart points out that "... we labour under two connected handicaps ... The first ... is our relative ignorance of fact: the second is our relative indeterminacy of aim". (Hart, op.cit., p.125). Thus we are unable to anticipate all possible fact situations, and we are in any case unsure of what exactly we wish to do in the cases we can anticipate with some degree of accuracy.
Some, especially the extreme rule-sceptic wing of the American Realist School (and more recently both radical "Crits" and "Post-moderns") have seen in this indeterminacy of rules a total failing of rules to determine decisions at all. Such a view leads such Realists to "judicial intuitionism" or to the "hunch judge" and others have concluded that because rules determine nothing, all "law" is "politics". Hart opposes such extremes. See passage 145: "General terms would be useless to us as a medium of communication unless there were such familiar, generally unchallenged cases". (Hart, op.cit., p.123). Thus (for Hart) while rules cannot exclusively and exhaustively determine decisions, neither is it the case that they cannot limit the range of possible decisions almost to a negligible degree. See passage 146:"It may seem strange that the contention that rules have a central place in the structure of a legal system could ever be seriously doubted". (Hart, op.cit., p.135) but cf. passage 21: "... the concept of a rule, as we have seen, is as perplexing as that of law itself so that definitions of law that start by identifying law as a species of rule usually advance our understanding of law no further". (Hart, op.cit., p.15).
Rule-scepticism claims that talk of rules is a myth, cloaking the truth that law consists only of the decisions of courts. Yet (for Hart) such a view is incoherent because to talk of courts is to pre-suppose the existence of rules, namely the secondary P-rules setting up the jurisdiction and the legal powers of judges. See passage 147: "Rule-scepticism has a serious claim ... it amounts to the contention that, so far as the courts are concerned, there is nothing to circumscribe the area of open-texture so that it is false, if not senseless, to regard judges as themselves subject to rules of 'bound' to decide cases as they do". (Hart, op.cit., p.135). However, **148: "It does not follow from the fact that ... rules have exceptions incapable of exhaustive statement, that in every situation we are left to our discretion ... A rule that ends with the word 'unless ...' is still a rule". (Hart, op.cit., p.136).[N.B. re Dworkin's criticisms]. And note, too Hart's references to variable standards, near-conclusive rules and non-conclusive principles
In conclusion, Hart takes the view that 150: "... it is ... a necessary condition of a legal system existing, that not every rule is open to doubt on all points". (Hart, op.cit., p.149) but 151: "Legal theory ... is apt either to ignore or to exaggerate the indeterminacies of legal rules".(Hart, op.cit., p.127) and this produces ... 152: "Formalism and rule-scepticism are the Scylla and Charybdis of juristic theory; they are great exaggerations, salutary where they correct each other, and the truth lies between them". (Hart, op.cit., p.144).