University of Kansas, Spring 2005
Philosophy 674: Philosophy of Law
Ben Eggleston—eggleston@ku.edu

Class notes: Hart

The following notes correspond roughly to what we cover, including at least a portion of what I put on the board or the screen, in class. In places they may be more or less comprehensive than what we actually cover in class, and should not be taken as a substitute for your own observations and records of what goes on in class.

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1. chapter 5: “Law as the Union of Primary and Secondary Rules”
   1. main point: Law (or a system of law) ought be be conceived of as a union, or combination, of primary and secondary rules
   2. first target (view to be attacked): Law is whatever the sovereign coercively orders.
      1. criticism: This might account for being obliged, but not for being obligated.
      2. main difference: one consists of psychological states
   3. second target (a modification of the first target): Law is whatever one can predict people will be punished for violating.
      • criticism: People are often under legal obligations even when they are extremely unlikely to be punished.
   4. what it takes for a person to be under a legal obligation
      1. being under a rule with these features
         1. strong social pressure for conformity
         2. believed to be important for social life
         3. requires conduct that may deviate from self-interest
      2. Thus many of the people in the society will see the rules from the internal point of view, not only the external one.
   5. three defects of a structure consisting only of primary rules
      1. uncertainty
      2. static character
      3. inefficiency of enforcement
   6. three secondary-rule remedies
      1. rule of recognition
      2. rules of change
      3. rules of enforcement
2. chapter 6: “The Foundations of a Legal System”
   1. further discussion of the notion of a rule of recognition
      1. more shown than stated
      2. indicates what rules are valid
      3. better than saying a rule is valid if it will be enforced
      4. said simply to exist, not (itself) to be valid or not
   2. conditions for existence of a legal system
      1. rules generally obeyed by public
      2. rules subscribed to by officials
   3. pathology, embryology, etc.
      1. breakdown of established system
      2. birth of new system
      3. disagreement about rule of recognition