Ambiguities: Law, Morality, and Legal Subjectivity in H.L.A. Hart's the Concept of Law

Abstract

In The Concept of Law, H.L.A. Hart set out his definition of law as a social phenomenon. He had two main objectives: to restate the positivist position that law and morality are "different but related"; and to modify and extend John Austin’s command theory of law using J.L. Austin’s analytic linguistic philosophy (Hart, 1994: vi-vii). The book, which Hart “primarily designed for the student of jurisprudence” (Hart, 1994: vi) quickly became one of two pillars in Anglo-American jurisprudence.

The first substantive section of this chapter sets out Hart’s contribution to common law jurisprudence, and explains Hart’s definition of a legal system as a union of primary and secondary rules that imposes obligations on subjects and officials alike. Focusing on the distinction Hart draws between being "obliged" to follow a rule and having an 'obligation' to do so, I explore the legal subject Hart postulates in his description of internal and external points of view. Despite Hart’s claims to universality, I find that his 'ordinary citizen' (Hart, 1994: 113) is the disembodied, decontextualised man of liberal theory. In the following section, delineating a feminist critique of Hart’s legal subject, I rely on three of the many challenges that have been made to liberal conceptions of individual autonomy and rationalism by feminist theorists. 

In the final section, while acknowledging the strength of the feminist critiques of liberal legalism, and the applicability of those criticisms to The Concept of Law, I nonetheless conclude that Hart’s ethical commitment to distinguishing between law and morality has a contingent place in feminist legal theory. Without wishing to re-inscribe liberal legalism’s fiction of choice, I suggest that Hart’s distinction has the potential to help feminist theorists contest the apparent naturalness of inherently oppressive legal orders. If it is possible to decouple the distinction between law and morality from the liberal legal subject encapsulated by Hart’s phrase 'ordinary citizen', it might become more possible to hold legal officials, lawmakers, and ordinary citizens themselves accountable for the inequities perpetuated by human legal systems.

Keywords: HLA Hart; Jurisprudence; Feminist Legal Theory; Legal Subjectivity; Legal Positivism; Law and Morality