University of Kansas, Spring 2005
Philosophy 674: Philosophy of Law

Study questions: Hart

The following questions are intended to guide your reading of the assigned texts by calling attention to key concepts, distinctions, principles, and other parts of the texts. The questions are listed in the order in which their answers should become evident to a close reader.

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  1. chapter 5: “Law as the Union of Primary and Secondary Rules”
    1. Hart begins this chapter by summarizing criticisms offered in previous chapters against a certain model of law. What term does Hart use to refer to this model? (You will soon see, as you get into the substance of Hart’s criticisms, that the model he is criticizing is essentially that of Austin.)
    2. What does Hart say is to be shown “in this and the succeeding chapters”? Note that the “two types of rule” Hart mentions are primary rules and secondary rules, about which we already know many things, from reading Altman.
    3. Hart rejects the claim that in the gunman situation, B is obligated to hand over his money to A. Call this claim P. What claim, very similar to P, does Hart say might well be true, in place of P?
    4. Let the claim that is the answer to question 3 be called Q. What sorts of considerations does Hart say determine whether a claim such as Q are true, but are neither necessary nor sufficient for the truth of a claim such as P?
    5. What is the first thing that Hart mentions as being needed in order for rules to be (correctly) “conceived and spoken of as imposing obligations”? Note that although Hart soon refers to this as the “primary” characteristic of obligation, this doesn’t mean that it has any particular connection to primary rules.
    6. What are the other two characteristics of obligation (or of rules of obligation, as Hart might have said more precisely)?
    7. What is the difference between the two ways of being concerned with rules that Hart calls the “internal” and “external” points of view?
    8. What are the three defects that Hart says any structure consisting only of primary rules suffers from?
    9. What are the three kinds of secondary rules that provide the remedies for these defects?
  2. chapter 6: “The Foundations of a Legal System”
    1. Hart writes that in many legal systems, the content of the rule of recognition is less often stated by government officials than shown in the way in which they identify the other rules of the legal system. What is an example of a scenario illustrating this?
    2. How does Hart propose that the notion of a rule of recognition can help to explain what is often meant in calling a rule or law a valid one?
    3. What is Hart’s objection to the claim that someone who asserts that a particular rule is valid is essentially just predicting that it will be enforced by the courts (or that some other official action will be taken)?
    4. What is the difference between assuming the validity of a certain rule of recognition and presupposing its existence?
    5. In section 2, Hart discusses two difficulties, or lines of inquiry. The second has to do with what it takes for a legal system to exist in a given country (or, as we have been saying, a political community). After several pages of discussion, Hart specifies two conditions that are individually necessary and jointly sufficient for the existence of a legal system. What is the first condition?
    6. What is the second of the two conditions that Hart specifies?
    7. In section 3, what three ways of a legal system’s breaking down does Hart mention?
    8. What example does Hart give of how a new legal system can come into existence?
    9. What example does Hart give of a division among officials regarding their political community’s rule of recognition?