H. L. A. Hart (1907-1992) practiced law for a time before WWII but after the war taught at Oxford, first in philosophy and then in law as Professor of Jurisprudence (1952-1968). Philosophical work at Oxford after WWII was heavily influenced by the thought of Ludwig Wittgenstein (1889-1951), and Hart’s work on the philosophy of law is no exception, exhibiting a central concern with language and, especially, with the complexity of its ordinary use.

The Concept of Law grew out of Hart’s undergraduate lectures on the subject at Oxford. His first two chapters present first his own understanding of the task of the philosophy of law and then give an account of the motivation for Austin’s views, which he goes on to criticize in chs. 3 and 4 (which are directed, respectively, at the ideas of “command” and “sovereign”). Although chs. 1 and 2 are well worth reading, you can get a sense of his positive account of Austin by looking at just the last paragraph of ch. 2 (p. 25).

Although Hart’s target in ch. 3 is Austin, he will refer to the views of others, most notably Kelsen. Many of Hart’s references to figues like Kelsen do not appear explicitly in the text but instead in the section of notes at the end (pp. 277-307). Hart will not refer you to these, so you will have to seek them out; and it can be worth doing so since many go well beyond bibliographic references to explain more fully points made in the main text.

Hart’s main point in ch. 3 § 1 is that, if we think of law as consisting of rules that impose duties, we may miss other sorts of law, most importantly rules that confer powers. In subsections of this section, Hart discusses examples of the latter sort of rule, considers two attempts to reduce rules of that sort to duty-imposing rules (i.e., to show that they are only apparently different from duty imposing rules), and considers what can be said against even attempting such a reduction.

• Look at the range of examples surveyed on pp. 27-33 but also at the explicit comparison of the two sorts of rule in the final paragraph of the subsection (pp. 32f).

• The subsections titled “Nullity as a sanction” and “Power-conferring rules as fragments of laws” describe attempts to reduce power-conferring rules to duty-imposing rules. You’ve seen Kelsen suggest the second of these approaches, and the first can be found in Austin (see Lectures on Jurisprudence, pp. 505f). Formulate for yourself how each of these reductions is supposed to work and why Hart thinks it doesn’t, but think also of ways someone who thinks one or the other reduction does work might try to meet Hart’s objections. Which reduction do you think stands a better chance of being successfully defended against Hart’s objections?

• In the subsection “Distortion as the price of uniformity,” look especially at Hart’s alternative to the point of view of Holmes’ “Bad Man.”