SUBJECT: jurisprudence law I

Project topic:
Hartss concept of obligation

Submitted By
Ankit pandey
Roll no. 1309
th
3 Year , 5 Semester, B.A.LL.B(Hons.)

Submitted to
Dr. manoranjan kumar
Faculty of jurisprudence Law- I

Chanakya national Law University, Patna

OCTOBER, 2017
 ACKNOWLEDGEMENT
Writing a project is one of the most significant academic challenges, I have ever faced.
Though this project has been presented by me but there are many people who remained in
veil, who gave their all support and helped me to complete this project.
First of all I am very grateful to my subject teacher Dr. Manoranjan Kumar without the
kind support of whom and help the completion of the project was a herculean task for me.
I am very thankful to the librarian who provided me several books on this topic which
proved beneficial in completing this project.
 Table of Contents

ACKNOWLEDGEMENT........................................................................2
OBJECT OF STUDY:............................................................................4
HYPOTHESIS:......................................................................................4
RESEARCH METHEDOLOGY:...........................................................4
INTRODUCTION:...................................................................................5
The Enigma of Obligation......................................................................5
EARLY ANALYTICAL POSITIVISM AND LEGAL OBLIGATION..10
HARTS IDEA OF OBLIGATION.........................................................14
HARTS LEGAL THEORY...................................................................19
CONCLUSION.......................................................................................22
BIBLIOGRAPHY...................................................................................25
OBJECT OF STUDY:
In this research, an attempt will be made to analyze Harts basic concept of obligation and how it
differs from that early positivist meaning of obligation which was given by Austin, Bentham and
later by Kelsen. The research will contain a critical analysis of his idea of obligation as well as a
comprehensive study of his concept of social rules as well as the internal aspect of these rules.
Moreover the researcher will try to find out how this concept eventually forms the basis of Harts
theory of law.

HYPOTHESIS:
Is H. L. A. Hart's general theory of obligation (his idea of obligation) necessary for his theory of
legal obligation?

RESEARCH METHEDOLOGY:
The research methodology used in the project is the doctrinal research methodology and the
entire content is based on the specific materials collected through different books and law
journals.
 INTRODUCTION:
The Enigma of Obligation
Whatever else they do, all legal systems recognize, create, vary and enforce obligations. This is
no accident: obligations are central to the social role of law and explaining them is necessary to
an understanding of law's authority and, therefore, its nature. Not only are there obligations in
the law, there are also obligations to the law. Historically, most philosophers agreed that these
include a moral obligation to obey, or what is usually called political obligation. Voluntarists
maintained that this requires something like a voluntary subjection to law's rule, for example,
through consent. Non-voluntarists denied this, insisting that the value of a just and effective legal
system is itself sufficient to validate law's claims. Both lines of argument have recently come
under intense scrutiny, and some philosophers now deny that law is entitled to all the authority it
claims for itself, even when the legal system is legitimate and reasonably just. On this view there
are legal obligations that some of law's subjects have no moral obligation to perform.

Every legal system contains obligation-imposing laws, but there is no decisive linguistic marker
determining which these are. The term obligation need not be used, nor its near-synonym,
duty. One rarely finds the imperative mood. The Sale of Goods Act says that, Where the seller
sells goods in the course of a business, there is an implied condition that the goods supplied
under the contract are of merchantable quality. That these laws create obligations follows from
the way offence and implied condition function in their respective areas of law, not from the
language in which they are expressed.

On the face of it, some laws have other functions. A requirement that a will must be signed
generally imposes no dutynot a duty to make a will, and not even a duty to have it signed if you do
it sets conditions in the absence of which the document simply does not count as a valid will.
Nonetheless, some philosophers, including Jeremy Bentham and Hans Kelsen, argue that the content
of every legal system can and should be represented solely in terms of duty-imposing and duty-
excepting laws. Bentham asks, What is it that every article of law has in common with the What
What then are legal obligations? They are legal requirements with which law's subjects are bound to
conform. An obligatory act or omission is something the law renders non-optional. Since people
plainly can violate their legal obligations, non-optional does not mean that they are physically
compelled to perform, nor even that law leaves them without any eligible alternative. On the
contrary, people often calculate whether or not to perform their legal duties. Could it be then that
obligations are simply weighty reasons to perform, even if sometimes neglected or outweighed? This
cannot be a sufficient condition: high courts have important reasons not to reverse themselves too
frequently, but no legal obligation to refrain. Nor is it necessary: one has an obligation, but only a
trivial reason, not to tread on someone's lawn without his consent.
If their content does not account for the stringency of obligations, what does? A historically
important, though now largely defunct, theory explained it in terms of penalty. Following Hobbes
and Bentham, the English jurist John Austin says that to have a legal obligation is to be subject to a
sovereign command to do or forbear, where a command requires an expression of will together with
an attached risk, however small, of suffering an evil for non-compliance. When I am talking directly
of the chance of incurring the evil, or (changing the expression) of the liability or obnoxiousness to
5
the evil, I employ the term duty, or the term obligation Others conceived an indirect connection

1 Bentham (1970). Of Laws in General , 294

2 Hart (1994) The Concept of Law, 2649
3 Raz (1990) Practical Reason and Norms
4 Dworkin (1978) Taking Rights Seriously 7178
5 Austin (1832) The Province of Jurisprudence Determined, 18
between duty and sanction. Hans Kelsen holds that what is normally counted as the content of a
legal duty is in reality only part of a triggering condition for the mandatory norm which
commands or authorizes officials to impose a sanction: [A] norm: You shall not murder is
6
superfluous, if a norm is valid: He who murders ought to be punished . And thus, Legal
obligation is not, or not immediately, the behavior that ought to be. Only the coercive act,
7
functioning as a sanction, ought to be.
8
None of these versions of the sanction theory survived H.L.A. Hart's criticisms . First, they
misleadingly represent a range of disparate legal consequencesincluding compensation and
even invalidationas if they all function as penalties. Second, they render unintelligible many
familiar references to duties in the absence of sanctions, for example, the duty of the highest
courts to apply the law. Third, they offer an inadequate explanation of non-optionality. You have
an obligation not to murder cannot merely mean If you murder you will be punished, for the
law is not indifferent between people, on the one hand, murdering and being jailed, and on the
other hand not murdering at all. The right to disobey the law is not obtainable by the payment of
9
a penalty or a licence fee. Such dicta are commonplace and reflect familiar judicial attitudes.
Most important, the normal function of sanctions in the law is to reinforce duties, not to
constitute them. It is true that one reason people are interested in knowing their legal duties is to
avoid sanctions, but this is not the only reason nor is it, contrary to what Oliver Wendell Holmes
supposed, a theoretically primary one. Subjects also want to be guided by their dutieswhether
in order to fulfil them or deliberately to infringe themand officials invoke them as reasons for,
and not merely consequences of, their decisions.

Sensitivity to such matters led Hart to defend a rule-based theory. He says that while sanctions might
mark circumstances in which people are obliged to conform, they have an obligation only when
subject to a practiced social rule requiring an act or omission. The fact that subjects use it as a rule
marks it as normative. Three further features distinguish obligation-imposing rules: they must be
reinforced by serious or insistent pressure to conform; they must be believed important to social life
or to some valued aspect of it; and their requirements may conflict with the interests and goals of the

6 Kelsen (1967) Pure Theory of Law, 55

7 Ibid 119.
8 Supra note 2, 2742
9 Francome v. Mirror Group Newspapers Ltd. [1984] 2 All ER 408 at 412
 10
goals of the subject. This account of the nature of obligations is not an account of their validity.
Hart does not say that a legal duty is binding whenever there is a willingness to deploy serious
pressure in its support, etc. He holds that a duty is legally valid if it is part of the legal system
(i.e., if it is certified as such by the tests for law in that system), and a legal duty is morally valid
only if there are sound moral reasons to comply with it. But, at least in his early work, he offers
the practice theory as an explanation of duties generallylegal duties are the creatures of legal
11
rules, moral duties of moral rules and so on.

The constitutive role of social pressure is sometimes considered an Austinian blemish on Hart's
12
theory, but there are in any case more serious problems with it as a general account of obligations.
People readily speak of obligations when they are well aware that there are no relevant social
practices, as might a lone vegetarian in a meat eating society. And Hart's practice conditions may be
satisfied in cases where there is no obligation but only generally applicable reasons, as when victims
are regularly urged to yield their wallets to a mugger. At best, Hart's theory will apply only to a
special class of obligations in which the existence of a conventional practice is an essential part of the
13
reasons for conformity, though even here, the theory is open to doubt.
A third account is reason-based. On this view, what constitutes obligations is neither the social
resources with which they are enforced, nor the practices in which they may be expressed, but the
kind of reasons for action that they offer. Legal obligations are content-independent reasons that are
both categorical and pre-emptive in force. The mark of their content-independence is that their force
does not depend on the nature or merits of the action they require: in most cases, law can impose an
14
obligation to do X or to refrain from doing X. That they are pre-emptive means that they require the
subject to set aside his own view of the merits and comply nonetheless. That they are categorical
means that they do not condition their claims on the subject's own goals or interests.

This view is foreshadowed in both Hobbes and Locke, but its most influential contemporary
15
version is due to Joseph Raz . He argues that obligations are categorical reasons for action that
are also protected by exclusionary reasons not to act on some of the competing reasons to the

10 Supra note 2, 8588

11 Hart later modified this view, see (1982) Essays on Bentham, 25568; and (1994) The Concept of Law, 256.
12 Supra note 4, 5054; supra note 3, 538
13 Supra note 4, 5458; Green (1988),The Authority of the State, 88121
14 Hart (1958) Legal and Moral Obligation ;(1982) Essays on Bentham , 25455
15 Joseph Raz (1977) Promises and Obligations ; 1990 Practical Reason and Norms 3584
contrary. Obligations exclude some contrary reasonstypically at least reasons of convenience
and ordinary preferencebut they do not normally exclude all: an exclusionary reason is not
necessarily a conclusive reason. The stringency of an obligation is thus a consequence not of its
weight or practice features, but of the fact that it supports the required action by special
normative means, insulating it from the general competition of reasons. Or at any rate this is
what obligations do when they have the force the claim, i.e., when they are binding. The theory
does not assume that all legal obligations actually are binding from the moral point of view, but it
does suppose that the legal system puts them forth as if they werea consequence that some
16
have doubted. And while this account is invulnerable to the objections to sanction-based and
practice-based theories, it does need to make good the general idea of an exclusionary reason,
17
and some philosophers have expressed doubts on that score also : is it ever reasonable to
exclude entirely from consideration an otherwise valid reason? The account has, nonetheless,
been adopted by legal philosophers with otherwise starkly contrasting views of the nature of law.

16 Hart (1982), Essays on Bentham, 26367; Himma (2001) Law's Claim of

Legitimate Authority, 28497
17 Perry (1989), Second Order Reasons, Uncertainty, and Legal Theory
 EARLY ANALYTICAL POSITIVISM AND
LEGAL OBLIGATION
Benthams contempt for the English legal system inspired him to understand the character of law
largely in terms of its coercive power. If one believes, as Bentham did, that much of laws substance
and process is rotten to the core, then an overwhelmingly salient feature of a legal system is its ability
to compel compliance with its directives despite the systems glaring faults. For Bentham, law was
uniquely capable of forcing obedience on its subjects, and laws force was thus intimately related to
laws defects. And so, largely in a work now known as Of the Limits of the Penal Branch of
Jurisprudence, earlier published as Of Laws in General, and originally written around 1780 and
intended to be part of his magisterial An Introduction to the Principles of Morals and Legislation,
Bentham developed what is commonly labeled, two hundred years later, the command theory of
law. According to the command theory, law is a species of command, or, as Bentham sometimes put
it, a mandate. But there are all sorts of commands all around us, and what for Bentham distinguished
the commands of law from the commands of other enterprises or other normative systems is the
ability of the legal system to back its commands with the threat of unpleasant sanctions fines,
prison, or even death in the event of noncompliance. Indeed, Bentham sometimes claimed that the
possibility of such sanctions defined legal obligation itself. To have a legal obligation was simply to
be under official state compulsion, and without the possibility of such force there was, he sometimes
said, no legal obligation and no law

Benthams focus on coercion as lying at the heart of law was thus based on his empirical
psychological assessment that other-regarding and social-regarding interests would rarely (but, it
should be emphasized again, not never) be sufficient to motivate people to put aside their self-
regarding motivations. To the extent that law seeks to promote the common good at the expense
of individual preferences and interests, therefore, laws ability to threaten or impose unpleasant
sanctions emerges for Bentham as the principal way in which law can accomplish this end.

For reasons that remain obscure, the work we now know as Of the Limits of the Penal Branch of
Jurisprudence remained largely unpublished in Benthams lifetime, languishing unnoticed in the
morass of Benthams papers for more than a century. Not until 1939 was the manuscript discovered,
and even then not published until 1945. But although Benthams writings about the nature of law
were lost for many years, his ideas were not. Within his circle of friends in early nineteenth century
London was a lawyer highly taken with Benthams theories -- John Austin. After failing at the bar,
Austin, with the assistance of Bentham and James Mill, among others, was installed in a chair of law
at the University of London. Taking up the chair, Austin delivered a course of lectures, hardly more
successful than his law practice, in which he systematically expounded and expanded on the
command theory of law, and on Benthams basic insights about the role of force and the threat of
sanctions in understanding law Austins lectures were published in 1832 as The Province of
Jurisprudence Determined, and subsequent editions, refined and actively promoted by Austins wife
Sarah after his death, added additional materials from the lectures. And although Austins intricate
categorization of commands and elaborate typology of laws acknowledged some of the deficiencies
in a pure command-based account of law and accordingly added many qualifications, he still
followed Bentham in insisting on a rigid separation of moral evaluation from the criteria for
identifying law: In distinguishing the existence of law from the assessment of its moral worth, Austin
also followed Bentham in viewing the command backed by the threat of force in the event of
disobedience as the central feature of law. In fact, Austin, whose normative commitments were less
fervent than Benthams but whose analytic proclivities (or perhaps obsessions) were stronger,
incorporated the threat of force into his definitions of law and legal obligation. A law, for Austin, was
simply the command of the sovereign backed by the threat of punishment for noncompliance. And it
followed, for him, that to be under a legal obligation was equally simply to be the subject of a threat-
backed command. Austin accordingly understood a command as the expression of a wish or desire,
but, unlike other such expressions requests or aspirations or hopes, for example a command was
the expression of a wish or desire backed by the power and purpose of the party commanding to
inflict an evil or pain in case the desire be disregarded. Austin thus viewed commands and duties as
correlative. The subject of a command was bound or obliged to follow it by virtue of the threat of evil
in the event of noncompliance, and it was precisely by being obliged to obey in this sense that the
subject of the command had a duty to follow it. Being liable to an evil from you if I comply not with
a wish which you signify, I am bound or obliged by your command, or I lie under a duty to obey it.
The binding nature of the command, and also the obligation or duty to follow it, was, for Austin,
entirely a function of the ability of the commander to threaten to inflict evil or pain in the event
of disobedience.
Plainly this understanding of a command is too broad to explain the idea of law, as Austin well
understood. The gunman who says your money or your life or the parent who threatens to send
a disobedient child to bed without dessert are both issuing commands in exactly Austins sense.
But unlike the parent or the gunman, law to Austin consisted of the commands of the sovereign,
the entity by virtue of whose position (hence the term positive law) the commands of the state
were to be distinguished from the commands of parents, gunmen, and everyone else.
Consequently, law was for Austin the aggregate of only those commands of a political superior to
a political inferior, where the threat of punishment was built into the very idea of a command.
The notion of sovereignty then served the role of picking out the particular province of legal
commands from the domain of commands generally.

KELSENS APPROACH
Similar to Hart, Hans Kelsen rejected Austins account of law. Unlike Hart, however, Kelsens
pure theory of law claims that coercion is essential for understanding law and legal systems.
All laws, according to Kelsen, are coercive orders regulating human behavior: they react against
certain events, regarded as undesirable because detrimental to society with a coercive act; that is
18
to say, by inflicting on the individual an evil.
Similarly, coercion is essential for the existence of a legal obligation: a behavior may be regarded as
the content of a legal obligation only if the contrary behavior is made the condition of a coercive act
19
directed against the individual thus behaving. Furthermore, Kelsen postulates a theory of law that
reformulates all laws as orders directed at legal officials to sanction individuals if certain conditions
20
obtain. Thus, all laws are recast as incomplete rules that are linked to other incomplete rules,
eventually culminating in an order to an official to apply a sanction. They are cast in the form of an
if-then statement: if conditions x, y, and z obtain, then apply sanction S. In this way, Kelsen
attempts to account for power-conferring rules: they are partial rules, antecedents in a long
21
conditional that eventually directs an official to apply a sanction. For example, if a provisions in a

18 Kelsen, Pure Theory of Law, 33

19 Id. at 50; see also Id. at 114-17.
20 Id. at 56-57.
21 Id. at 54-58, 113.
provision in a Wills Act requires two witnesses for the execution of a valid will, such provision is
one if clause in a long conditional that eventually directs a court to apply a sanction against an
22
executor who fails to pay the legacies when all conditions obtain.

Hart rejected Kelsens reformulation because he thought it mischaracterizes the way the law
functions in society. For Kelsen, all laws are directed at officials to apply a sanction if certain
conditions obtain. This emphasis on officials obscures how law functions as a means of social
23
control and as a standard for the guidance of conduct. For example, the characteristic technique
of the criminal law as a means of social control, according to Hart, is to designate by rules
certain types of behavior as standard for the guidance either of the members of society as a
whole or of special classes within it: they are expected without the aid or intervention of officials
24
to understand the rules and to see that the rules apply to them and to conform to them.
The laws primary means of social control is to guide action through rules. It is only when the
law fails in this primary function (that is, when subjects fail to conform to its dictates) is it
concerned with sanctions. Rules providing for sanctions are ancillary to the primary function of
law. They make provision for instances when the law has failed. By reformulating law as
imperatives directed at officials and focusing on the application of sanctions, Kelsen conceals the
distinctive character of law as a means of social control.
Moreover, Hart argues that Kelsens theory is misleading as an account of power-conferring
rules. Kelsen recasts such rules in the form of a conditional directing an official to apply a
sanction. Thus, such rules are conceived of as duty-imposing rather than power-conferring.
According to Hart, however, rules conferring private power must, if they are to be understood, be
looked at from the point of view of those who exercise them such rules are thought of, spoken of,
and used in social life differently from rules which impose duties, and they are valued for
different reasons. What other tests for difference in character could there be?
Thus, similar to his refutation of Austins theory, Hart focuses on the way law functions in social
life as the basis for rejecting Kelsens theory. Once again, laws function as a standard in guiding
ones behavior plays a prominent role for rejecting a legal theory that cannot account for the
internal component of social rules.

22 This example is provided by Hart. See HART, CONCEPT OF LAW, supra note 3, at 36.
23 Id. at 39-42.
24 Id. at 38-39.
 HARTS IDEA OF OBLIGATION
Since Hart brought to light the flaws of jurisprudential theories that wished to make sense of legal
26
obligations merely in terms of sanctions, legal positivism underwent an essential change: it whole
heartily rejected the reductivist theory of legal obligation that it was primarily associated with. Pre-
hartian positivists held that legal obligation is no more than a rather obscuring label for the condition
of people obliged to follow the claims of a de facto authority. Hart himself as well as post-hartian
positivists hold that legal obligation is a genuine duty attributed to people by public officials. There is
no doubt that the status of those who are under a genuine obligation to x differs to the condition of
those who find themselves obliged to x. Now, the real question is in what sense are the two cases
distinct from each other and what does their differentiation offer to our understanding of legal
obligation. Hart is the first positivist that deals extensively with the issue. He points out the
difference and makes it clear through a fine example, that is now world famous as the case of the
27
gunman. A, who hands his money to gunman B, so that he avoids getting shot by him, does not
have any obligation to comply with Bs crude order, although he is obliged to follow it. The example
is eloquent, but striking. How does it come that what at first sight seems to be a mere tautology
(being obliged being under an obligation), actually illustrates an instance of the famous
unbridgeable difference between ought and is? Being obliged to x differs to having an obligation to x
in a two-fold sense. First, they differ in normative terms. Once a genuine obligation is attributed to
us, a change of our normative status occurs, whereas this is not necessarily the case, once one finds
oneself obliged to act in a certain way. One who is under an obligation to x, should do x. One who is
obliged to x may or may not be under an obligation to x. But the two cases also differ to each other in
purely pragmatic terms. Once a person is obliged to x, she is aware that if she acts differently, she
will experience a sort of harm, whereas this is not necessarily the case when she is under an
obligation to x. Let us give an example from the everyday legal practice to see what this twofold
difference brings to our understanding of legal obligation. Think for instance of a paradigmatic duty
put forward by most legal systems both past and present ones, all over the world: You shall not
murder! According to the understanding of legal obligation in terms of sanction the fact that this

26 HLA Hart, The Concept of Law, Oxford, 1994, at 27-42.

27 HLA Hart, note 1, at 22 and 82.
sanctions, the fact that this very prescriptive claim is embedded in a legal system and hence
enjoys the status of a legal mandatory rule gives to laws subjects no more than a prudential
reason to comply with it. As long as they are reasonable agents -as all humans ex hypothesi are-
laws subjects cannot but wish to avoid the sanction that the breach of their legal obligation to
abstain from homicide brings with it. What the theory of law as a system of sanctioning rules
suggests is that the legal status that is attributed to any obligation via its enactment by legal
officials, offers us nothing but a sound prudential reason to respect it, which can be simplified as
follows: Do so for not being punished!
The treatment of legal duties as genuine obligations puts forward a more sophisticated view on
the issue. Once the normative claim that asks us to abstain from homicide meets the standards of
legal validity and is formally put forward as a legal rule, laws subjects find themselves under a
new genuine- read moral- obligation. They are now bound to hold back from killing humans;
bound in the sense of being guilty of a morally reprehensible act, in the case that they break the
rule that forbids homicide.

According to Hart, "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".

(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" (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: "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
28
choosing to do something without consulting my desires". 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
29
likelihood of suffering evil : "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' ..." as illustrated by the following passages: "... the chance of incurring the evil", the
smallest chance of ... the smallest evil".

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: "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 it is
not, in fact, the only alternative to obscure metaphysics. So Hart rejects this interpretation of
duty and rehearses the standard arguments against it:

28 L.W. Beck, Commentary on Kant's Second Critique, p.113

29 M S BLACKMAN, Hart's idea of obligation and his concept of law, 1977
(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 be little point in making statements about
obligations. Still it must be recognized 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) implies the existence of a rule, making certain types of conduct a standard;

(2) 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.

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"...
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". This is almost an
admission that "sanction" is definitive of "law". This contrasts sharply with an earlier view: "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". Even so 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".
(2) Duty imposing rules are "important". They are thought important because they are believed
to be necessary to the maintenance of social life or some highly prized feature of it".

(3) Duty imposing rules are not consensual generally recognized that the conduct required by
these rules may, while benefiting others, conflict with what the person who owes the duty may
wish to do". Above all we must not misconceive obligation as consisting in a feeling of
compulsion or pressure experienced by those who have obligations: "To feel obliged and to have
an obligation are different though frequently concomitant things".
 HARTS LEGAL THEORY
The basic conceptual building blocks of Harts account are rules and the internal point of view.
The temporal dimensions of law are explained by the fact that law consists in rules. First, laws
are rules, not commands backed by threats. In the latter case, the directives status depends on
the sovereigns capacity to threaten sanction. When a sovereign dies so too does his capacity to
threaten, and his commands lose their legal status as a result. If a rule is a law it is not in virtue of
the threatened sanction or the capacity of an individual to make good on a threat. Not every rule
is law of course. The existence of law presupposes law making authority that attaches to offices.
Individuals possess an authority to make (amend or interpret) law, not in virtue of their having
secured a habit of obedience, but in virtue of their occupying the offices to which the relevant
authority attaches. Those offices are created and regulated by rules. And so rules enter the picture
both as the mechanisms through which law making authority is constituted and regulated, and as
the product of the exercise of the powers thereby created.

This last point suggests that legal rules are of at least two sorts: rules that create and regulate the
exercise of normative powers, and those that are the product of the exercise of those powers.
Hart referred to these as secondary and primary rules respectively. The conventional way of
distinguishing between them is to say that primary rules impose obligations, whereas secondary
rules confer powers. Power conferring rules are themselves of two sorts: private and public.
Private secondary rules empower ordinary citizens with to alter the normative relations among
themselves (e.g. as in contracting, passing on property through wills, etc.) and a legal power to
call upon the states resources to enforce those relations. Public power conferring rules create
and regulate the offices to which legal authority attaches, and their existence is implicated in the
very idea of private power conferring rules as well. That is, private secondary rules create legally
enforceable powers and this fact about them requires the existence of state offices to which the
authority to enforce and adjudicate disputes on the validity of claims demanding enforcement
attach offices constituted by public power conferring rules.
It is clear, then, that secondary rules are at the core of Harts account, conceptually more
important even than primary rules that obligate compliance with standards of conduct. Hart made
the case for the centrality of secondary rules very differently, however, emphasizing their
efficiency, in particular, the role these kinds of rules play in reducing uncertainty within a
community. So in Chapter five of the Concept of Law, Hart notes that a community that had only
primary rules of obligations would confront at least three kinds of problems. There would be no
mechanism in the system of rules for changing the rules amending some, jettisoning others, or
creating new ones; no rule governed mechanism for adjudicating disputes about whether conduct
was compliant with the rules; and no mechanism within the system of rules for determining
which putative normative claims are the rules of this system of rules.

Each of these problems can be cast in terms of uncertainty: uncertainty about what the rules are,
about what they require and whether they are still in effect, and so on. Uncertainty can be
reduced and efficiency enhanced by secondary rules: rules that create an authority to make and
amend law, adjudicate disputes and to identify membership within a system of rules. This way of
presenting the role of secondary rules in Harts jurisprudence suggests that Hart understood law
as having the function of eliminating or reducing uncertainty, or of coordinating interaction
among individuals, or the like. Hart himself denied that law had a function beyond guiding or
regulating conduct, but the question of whether Harts jurisprudence depends on his attributing a
function to law, as well as the related concern as to how we are to understand what kind of claim
the claim about laws function is, are issues to which we shall return below. For now, it is enough
to note, I believe, that the idea of secondary rules are presented for illustrative purposes as
solving problems of uncertainty, and that as a matter of the logic of the argument such rules are
entailed by the very idea of private power conferring rules. Thus, on my reading, public power
conferring rules are conceptual prerequisites of the very idea of private power conferring rules,
and the case for them within the theory need not rely on any view of laws function.

In any case, the most important secondary rule is its rule of recognition. There is some dispute among
theorists whether in fact the rule of recognition is a secondary rule. If all secondary rules are power
conferring, then how can the rule of recognition be a secondary rule, since it confers power on no
one? This is not a particularly illuminating controversy. It is better simply to think of the rule of
recognition as playing three roles within a legal system. First and foremost, the rule of
recognition sets forth the conditions that must be satisfied in order for norm to constitute part of
the communitys law. Second, the rule implicitly confers a power on certain officials to evaluate
conduct in the light of appropriate norms that satisfy those conditions. And third, it imposes a
duty on officials to do so, that is, to evaluate conduct by the appropriate norms that are part of the
communitys law.

Recalling that Harts other kind of objection to Austins account is based on the idea that the
compliment of commands, threats and habits of obedience is inadequate to explain laws claim to
obligate compliance with its directive. The question is how do the concepts of rules and the
internal point of view fare in this regard?

Crucial is the idea that rules have what Hart referred to as an internal aspect, or more
commonly, the internal point of view. The internal point of view is a critical, reflective attitude
that individuals take towards the rules and the behavior the rules require of them. Hart thus
characterized legal rules as a species of social rules; that is, rules constituted by two features,
widespread convergent behavior accompanied by a broadly shared critical, reflective attitude
towards the rule requiring it. This attitude is itself reflected in behavior -- appealing to the rule to
explain compliance and to justify criticizing noncompliance -- but is not reducible to the
behavior that evidences it. The internal aspect of law in turn explains the aptness of the language
of obligation in regards to the laws demands, for the fact that individuals treat the rules as
grounds for compliance that explains that aptness of the language of obligation in the law.

Rules are important in Harts account for yet another reason. Rules are expressed in general terms.
General terms have a core of settled meaning and a penumbra in which competent speakers of a
language will disagree about whether they apply. This means that there will be cases in which no
reasonable and competent speaker of the language can disagree about the rule applies, and other
cases in which disagreement is both likely and rational. In the former case, the law settles the matter
and a judge is under a duty to apply the law to the facts at hand. In cases falling within the penumbra,
there is no settled law on the matter, rational dispute is inevitable and the law dictates no particular
result. These are cases in which a judge must have discretion to decide the case. Discretion is a
rationally constrained power that judges possess that, on these grounds at least, appears to be an
inevitable consequence of the what referred to as the open texture of the law.
 CONCLUSION
One of the central problems in both moral and legal philosophy has been to offer a satisfactory
analysis of the concept of obligation. In ordinary language the word "obligation" is used in
several different contexts. It may refer to moral obligation (e.g., "I am morally obligated to keep
my promise to help my uncle with his knitting"), legal obligation (e.g., "I am legally obligated to
report as income on my tax return whatever funds I embezzle from my employer"), political
obligation (e.g., "I am politically obligated to vote"), or social obligation (e.g., "I am socially
obligated to write a note of thanks to my weekend hosts"). For philosophical purposes the
concept must be more sharply delineated.
A central theme of The Concept of Law is that legal obligation is explained neither by John Austin's
view of law as a system of habitually followed coercive orders nor by moral obligation; legal
obligations can be both uncoerced and amoral, or even immoral. Instead, Hart views legal and moral
obligation as distinct species of the same genus. According to Hart, any statement of obligation
presupposes the existence of a general "social rule" that covers the particular circumstance that
occasioned the obligation. Social rules that impose obligations are distinguished from all other social
rules by three features. First, and most basic, obligation-imposing rules are supported by serious
social pressure. The pressure may involve physical sanctions for deviation from the rule or it may be
entirely psychological, but, whatever its form, "what is important is that 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."'
The second feature distinguishing obligation-imposing rules from other social rules is that "they
are thought important because they are believed to be necessary to the maintenance of social life
or some highly prized feature of it." For example, the rule requiring practicing attorneys to be
admitted to the bar is supported by the belief that it is necessary to the proper functioning of the
judicial system for those who practice law to have met some fairly rigorous and objectively
administered standard.
The third characteristic that distinguishes social rules presupposed by statements of obligation is
less important than the first two. Hart suggests simply that compliance with such rules
"characteristically involves sacrifice or renunciation."' Thus, the rule that requires that attorneys
take bar examinations typically necessitates time-consuming study.
Hart views the law as the sphere in which the concept of obligation most clearly belongs. In a
legal system it is natural to speak of a duty to do whatever it is that the laws specify be done, and
Hart accepts the view that all persons are legally obligated to follow each applicable law.
Accordingly, Hart's general analysis of obligation should subsume legal obligation; social rules
that share at least two of Hart's three characteristics'-support by serious social pressure and the
supporter's belief that the rules are necessary for maintenance of social life-should lie behind all
statements of legal obligation.
Hart believes that "'the key to the science of jurisprudence' "18 rests in the recognition of the
relationship between two general types of legal rules-primary rules and secondary rules. Primary
rules prescribe or proscribe behavior, and secondary rules confer the power whereby primary
rules may be introduced, recognized, eliminated, changed, or applied. The most important
secondary rules are rules of recognition, which identify the primary rules of a legal system.
According to Hart, the "ultimate rule of recognition" of a legal system is the secondary rule that
provides the criteria by which all other legal rules are validated, or given their status as rules in
the system. For example, in the United States the ultimate rule might be stated as follows: A bill
passed by both houses of Congress, not vetoed by the President, and not proscribed by the
Constitution, is law. It is this rule that identifies federal statutes as laws, and hence as legally
obligatory for persons to whom they apply. It is not clear, however, whether Hart believes that
the social rule that must lie behind any statement of legal obligation is the primary rule from
which the obligation is immediately derived, some other primary rule, a power-conferring
secondary rule from which the primary rule is derived, some other secondary rule, or in some
cases one of these and in some cases another.
Considering the first alternative, it is clear that Hart thinks that statement of legal obligation can
be immediately derived from an obligation-imposing primary rule. In his discussion of the
criteria that characterize all rules of obligation, Hart states:
Characteristically rules so obviously essential as those which restrict the free use of violence are
thought of in terms of obligation. So too rules which require honesty or truth or require the keeping
of promises, or specify what is to be done by one who performs a distinctive role or function in the
social group are thought of in terms of either "obligation" or perhaps more often "duty."
Secondly, it is generally recognized that the conduct required by these rules may, while
benefiting others, conflict with what the person who owes the duty may wish to do. Hence
obligations and duties are thought of as characteristically involving sacrifice or renunciation, and
the standing possibility of conflict between obligation or duty and interest is, in all societies,
among the truisms of both the lawyer and the moralist.
In the legal context, rules restricting violence and requiring honesty proscribe and prescribe
conduct; therefore they are primary rules. Moreover, in the clause emphasized above, Hart
derives his third characteristic of social rules of obligation from a consideration of these primary
rules. Hart's use of primary rules as examples in his general characterization of the social rules
from which obligation is derived suggests that he believes that primary rules that meet his
criteria are sufficient to serve as the social rules that underlie statements of legal obligation. If
this is the case, such primary rules would not depend on secondary rules for their obligatory
quality, although they would, of course, depend on them for their recognition as legal rules.
However, even if some primary rules satisfy Hart's three criteria, and so qualify as social rules of
obligation, it is clear that not every statement of legal obligation can be immediately derived
from such a primary rule. Stripped of reliance on the criteria for social rules of obligation, Hart's
analysis of legal obligation says simply that legal obligations arise from the application of
primary rules to particular circumstances. Primary rules are identified as legal rules by the
secondary rules of the legal system. In other words, people are legally obligated to do whatever
the applicable law tells them to do. This is hardly a startling claim. The particular importance of
Hart's contribution lies in his development of the distinction between primary and secondary
rules; that is, in his effort to clarify what the concept of law is, rather than in his claim that the
law is legally obligatory. If it can be shown that it is Hart's general analysis of obligation that is
faulty, then his important discussion of primary and secondary rules has not been weakened.
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