Most of Culver’s introduction to this part of the anthology is devoted to Hart, and sections 2 and 3 of that introduction (pp. 91-94) are especially relevant to this selection, which is the whole of the central chapter from the book that sets out the key feature of Hart’s own theory of law. The last of its three sections is the most important, and that will be our focus in class; but we will pay some attention to the second section, and thinking through it will help you understand the selection we will discuss on Friday (which is from the next chapter of Hart’s book).

•  Hart begins the first section of the chapter with a review of points made earlier in his book. Many of these appeared in one way or another in the first of half of “Positivism and the Separation of Law and Morals.” The most important is the distinction between laws that forbid or enjoin actions—i.e., laws that impose duties—and laws that confer public or private powers. You can find this idea in section 2 of the paper (Culver, p. 125). As the chapter title suggests, the distinction between primary and secondary rules made at the end of its first section is central to Hart’s view of the law. Notice that he regards it as a further development of the distinction between duty-imposing and power-conferring rules.

•  At the beginning of §2, Hart makes a distinction between was obliged and had an obligation; let me note (in case his use of the terms seems unnatural) that it doesn’t really matter whether Hart is right about English usage since it is the distinction he takes these terms to mark (not the language used to mark it) that is important. Beyond this distinction, Hart discusses two ideas that are important for his thinking: (i) the "predictive theory" of obligation and the problems he sees with it (pp. 148-149) and (ii) the distinction between "internal" and "external" aspects of rules (pp. 152-153). He would apply the former term not only to the views of Austin (who he mentions here) but also to the views of people like Holmes and Llewellyn. The distinction between external and internal aspects is related to the distinction he makes in “Positivism and the Separation of Law and Morals” between habitual obedience to a rule and the acceptance of it (see pp. 124-125).

•  In section 3, Hart describes three problems that could arise with a legal system that employs only primary rules. Formulate them for yourself and be able to say how each is solved by one of the three sorts of secondary rule Hart distinguishes. Much of the class will be devoted to working through these ideas.