Pojęcie prawa

by H.L.A. Hart, Jan Woleński (-Translator)

Jest to dzieło współczesnego filozofa angielskiego, teoretyka prawa, bodaj najważniejsza spośród prac dotyczących filozofii i teorii prawa, wydanych po II wojnie światowej. Autor omawia m.in. pojęcie prawa, sprawiedliwości, podejmuje problem stosunku prawa do moralności, omawia strukturę systemu prawa. Poświęca też uwagę zagadnieniom prawa międzynarodowego. Czytelnik znajdzie tutaj definicję prawa jako systemu reguł pierwotnych i wtórnych oraz słynną koncepcję minimum treści prawa natury. Praca ta zakorzeniona jest w anglosaskiej tradycji jurysprudencji analitycznej i filozofii języka, pozytywizmu prawniczego i filozofii prawa natury. Stanowi lekturę podstawową dla tych, którzy zajmują się filozofią prawa, etyką czy filozofią polityki.

Genres: Law, Philosophy, Nonfiction, Politics, Academic, Classics, Legal

412 pages, Hardcover

First published January 1, 1961

About the author

Herbert Lionel Adolphus Hart was a legal philosopher of the 20th century. He was Professor of Jurisprudence at Oxford University and the Principal of Brasenose College, Oxford. He authored The Concept of Law and made contributions to political philosophy.

Reviews

[Donald · Rating 5 out of 5]

A good example of how books that aim to be introductory can also be deeply insightful by clearly stating the basic problems at play. Hart convincingly argues that law should be seen as much more collaborative than a simple series of imperatives. This is important from a left perspective because many radical views of the state rest on surprisingly conservative notions of law as a mask for class repression. The potential for law to be a collective and democratic project seems unlikely in a crude command theory wed to class repression but makes sense if law is produced through diverse social processes.

[Sean Rosenthal · Rating 5 out of 5]

Interesting Quotes:

“Very few social changes or laws are agreeable to or advance the welfare of all individuals alike. Only laws which provide for the most elementary needs, such as police protection or roads, come near to this. In most cases the law provides benefits for one class of the population only at the cost of depriving others of what they prefer. Provision for the poor can be made only out of the goods of others; compulsory school education for all may mean not only loss of liberty for those who wish to educate their children privately, but may be financed only at the cost of reducing or sacrificing capital investment in industry or old-age pensions or free medical services. When a choice has been made between such competing alternatives it may be defended as proper on the ground that it was for the ‘public good’ or the ‘common good.’ It is not clear what these phrases mean, since there seems to be no scale by which contributions of the various alternatives to the common good can be measured and the greater identified.”

-H.L.A. Hart, the Concept of Law

"[S]urvival has still a special status in relation to human conduct and in our thought about it, which parallels the prominence and the necessity ascribed to it in . . . Natural Law. For it is not merely that an overwhelming majority of men do wish to live, even at the cost of hideous misery, but that this is reflected in whole structures of our thought and language . . . We could not subtract the general wish to live and leave intact concepts like danger and safety, harm and benefit, need and function, disease and cure; for these are ways of simultaneously describing and appraising things by reference to the contribution they make to survival which is accepted as an aim."

-H. L. A. Hart, the Concept of Law

[John Farebrother · Rating 5 out of 5]

I read this book in the last year of my law degree, after I had read all the course books and was busy revising. It didn't actually directly add to my exam preparations (I still passed), as the exams were concerned with the application of the law. But I found it a great way to unwind between sessions of learning case law by rote, and it was strangely therapeutic to read Hart's masterly and magisterial presentation of the very meaning of law. As such it isn't so much a legal textbook as a work of philosophy, and I would certainly recommend it to anyone who wants quite read, something different that will carry them away to a country lawyer's office. A place where they can indulge in quiet English pursuits as the world passes by.

[Josh Friedlander · Rating 4 out of 5]

The history of jurisprudence certainly doesn't begin with Oliver Wendell Holmes - more on that in a moment - but let's pretend. The justice's famous observation that "the life of the law has not been logic; it has been experience" became the credo of legal realism, the revolutionary idea that law is what judges do, that the degree to which they are bound by written statutes and stare decisis is of their own choosing. This may be cynical - Holmes was something of a misanthrope and nihilist, deeply scarred by his experiences in the Civil War, as told in The Metaphysical Club, Louis Menand's fantastic history of American pragmatism - but it is surprisingly difficult to come up with a coherent theory of law that avoids it.

This book, to some extent, is an attempt. Hart, the leading scholar of this stuff in English (along with his students Ronald Dworkin and Joseph Raz), tries to stake out a position midway between "formalism" or "positivism" (the mechanical model of law as complete and merely interpreted by judges) and legal realism ("rule scepticism"). He uses the analogy of a cricket umpire; plainly, the umpire has a certain amount of leeway in running the game as she sees fit, yet it is just as clear that the game is not "whatever the umpire says". There are latent and invisible boundaries to the umpire's freedom of decision, which we cannot announce ahead of time, but perceive when they are crossed. The rule sceptics, Hart says, are welcome at the outskirts of the law; but only because they have earned the privilege through previous rounds of rule interpretation.

Hart's dismissal of formalism is worth quoting

We labour under two connected handicaps whenever we seek to regulate…by means of general standards…The first is our relative ignorance of fact: the second is our relative indeterminacy of aim. If the world in which we live were characterized only by a finite number of features, and these together with all the modes in which they could combine were known to us, then provision could be made in advance for every possibility. Everything could be known, and for everything, since it could be known, something could be done and specified in advance by rule. This would be a world fit for ‘mechanical’ jurisprudence. Plainly this world is not our world…

(Are there any true formalists today? Not as far as I can tell, but it does seem to be the way most practitioners of the law think - not to mention the man on the Clapham omnibus. And apparently the late Justice Scalia used it as part of his defense of originalism.)

Aside from the two poles of formalism and realism is a third, that of natural law. This is the most venerable approach, appearing in the Bible ("woe unto them that make unjust laws", Isaiah 10:1) and the Roman doctrine that lex iniusta non est lex. Although this idea has an intuitive appeal, it is hard to define its boundaries: almost any law (a regressive tax, say) will contain elements of injustice; while at the same time, surely Nazis following the laws of their country are still culpable for the actions. The latter was being actively debated in German courts when Hart was writing this (and it is worth noting that one of the great legal theorists, Carl Schmitt, was a Nazi). (Hobbes [Leviathan 1.13] argues exactly the opposite: "The notions of right and wrong, justice and injustice, have no place. Where there is no common power, there is no law; where no law, no injustice." Austin has a different reading of this line but I didn't follow it.)

Hart recaps the metaphysical origins of the claim found in Montesquieu and Blackstone (and Maimonides!) that the laws governing the motion of the planets are the moral deeds of humans are different only in that the latter can be disobeyed. Such a view emerges from the teleological views of Aristotle, that it is the fundamental goal of a human to live a life of intellectual pursuits and eudaimonia (or worshiping God, per Augustine). Hume and Mill aimed lower, providing a "minimal viable" natural law based on not causing harm to others.

This issue became the major point of contention between Hart and his student Ronald Dworkin, and large chunks of this book are dedicated to refuting him (apparently the two were amiable in real life). For Dworkin, judges' interpretation of rules is inseparable from their moral intuitions, absorbed from and fed back into the society they live in. Hart's disagreement is fairly technical, but in Law, Liberty and Morality he expressed a simpler formulation. Judges frequently have to rule in controversial cases, where moral intuitions differ widely and are firmly held. By attempting to hew to Dworkin's "principles", judges can easily find themselves encoding their own prejudices into law. For each case where morality cries out to the judge to overrule precedent (Huckleberry Finn not revealing Jim's hiding place, in his example), is another where following widespread moral norms has led to bad outcomes (such as laws outlawing homosexuality). In a classic liberal argument, Hart believes that judges reducing their moral interpretation will lead to better outcomes for all. (Here is a great essay on the topic from the 1960s; as events this week have shown, it is evergreen.)

Some other odds and ends: a lot of the first part is a refutation of the ordinary language philosopher J.L. Austin's definition of law as basically something you are compelled to do, the "gunman in the bank". Hart sees it as more about conventions, something like taking off your hat in church (or putting it on? I forget.) There are also thoughts on international law, the basis of legal authority (sovereignty), and the way that new laws are considered valid (rules of recognition).

[Antny · Rating 5 out of 5]

As seminal as seminal gets. Whether you agree with Hart or not, this book pulled the field of jurisprudence out from the stodgy debate of 'nature law vs. man's law' and introduced the wonderful insights of analytic and ordinary language philosophy to a generation of legal academics. And most impressively, Hart pretty much nailed this sophisticated form of positivism in one shot. Haven't been many major improvements since. (Oh, and... highly readable prose, unlike most of the stuff you'll find in academia.)

[mz · Rating 4 out of 5]

Profoundly elegant. Read slowly for full effect.

[Mike · Rating 4 out of 5]

I think this book is an enthralling read, though when I say that to other people they tend to laugh at me. It's, of course, the definitive modern statment of legal positivism. A laser sharp critique of Austinian positivism and an attractive theory of law as positive legal authority constrained by "rules" which extend beyond individual authorities. Hart's theory makes room for democratic style legislative authorities without falling into either a "naturalism/moralism" about rules or a "commands backed by threats of force" positivism.

[Lu · Rating 5 out of 5]

De câteva ori am încercat să o citesc cât eram student, dar am renunțat, pentru că mi-a părut plictisitoare. Acum îmi dau seama că, pe lângă faptul că este „fundamental”, Conceptul Dreptului este și o lectură delicioasă prin eleganța și cursivitatea discursului, cu raționamente și argumente care îți colorează întreaga înțelegere a ceea ce înseamnă drept.
Cartea asta trebuie să fie obligatorie pentru cursul de Teorie Generală a Dreptului - poate unica lucrare obligatorie.

[Amin Emdadi]

فصل‌های آخر رو خوب نفهمیدم و کلاً باید از نو بخونمش. اما مشخصاً برای شروع اصلاً انتخاب خوبی نیست. ترجمه‌ی راسخ—هرچند بهتر از خیلی از حقوقی‌ها است—ترجمه‌ی خوبی نیست. در کل نمی‌فهمم چرا حقوقی‌ها ترجمه می‌کنن.

[Abdulaziz · Rating 5 out of 5]

كتاب غيّر مسار فلسفة القانون وأحدث مفاهيم جديدة.
لم يترجم للعربية بعد للأسف،
أتى بعده دوركاين وقلب الموضوع
لكن يبقى الكتاب فتح الآفاق

[Matilde · Rating 3 out of 5]

Solid 3.8, the writing style is clear and easy to follow considering it's an academic text. Still don't understand the concept of internal acceptance to a rule and how that differs from belief, but I'm sure I'll figure it out...

[withering camellia · Rating 2 out of 5]

bye 💀 nie mam pojęcia jak napiszę o tym esej

[Chris Richardson · Rating 3 out of 5]

Overall, Hart’s exploration of the “Concept of Law’ proved intriguing and complexing. He broke down other theories and scrutinized their views and then rebuilt his own definition of legality. This is a tough read and is not something for casual reading. It requires in-depth analysis to fully grasp the ideas Hart is displaying. I would recommend this to anyone interested in legal theory or anyone looking to work in the legal field

[Micah · Rating 3 out of 5]

pretty interesting stuff, but there were barely any laws in it. not sure how a lawyer or judge would go about applying any of it.

[Lexi Mag · Rating 4 out of 5]

DENSE. Fascinating. But so dense

[Anmol · Rating 4 out of 5]

In the vast literature from Plato to the present day which is dedicated to the assertion, and also to the denial, of the proposition that the ways in which men ought to behave may be discovered by human reason, the disputants on one side seem to say to those on the other, 'You are blind if you cannot see this' only to receive in reply, 'You have been dreaming.'

A very intricate and interesting idea of law. I would write some critique on how it ignores lived experiences and the necessary morality of good legal systems, but all that has been done by people much smarter than myself multiple times before, so I'll let that go.

What surely is most needed in order to make men clear-sighted in confronting the official abuse of power, is that they should preserve the sense that the certification of something as legally valid is not conclusive of the question of obedience, and that, however great the aura of majesty or authority which the official system may have, its demands must in the end be submitted to a moral scrutiny.

Once Hart admits this ^, I can't help but feel that the whole legal positivist vs natural law theorist debate has effectively been reduced to a debate on the meaning of "law". Is it something that possesses bindingness in the sense of coercing people's actions? If so, the natural law theorists are right, morality must always be a criterion for legality if what is legal must always be performed. But is law something that we're meant to take into account when deciding our actions, and bindingness only means giving due regard to law among other morally serious concerns? Then the positivists are right, law is law no matter how immoral. Of course, this completely ignores the fact that law has sanctions built into it. The positivist cannot wholeheartedly defend the sanctions of an immoral law. The natural law theorist, similarly, cannot defend the equation of morality with legality (until Finnis, who in fact rejects this equation by emphasising the positivity of law while being a natural law theorist - it's complicated).

[WaldenOgre · Rating 2 out of 5]

必须申明，这个评分小部分针对原著，绝大部分针对的是这个译本。

即便透过糟糕透顶的译文，大致也能看出，哈特的文笔是乏味、冗长、偶尔甚至是自我重复的。但我也能理解，对于一本法理学的著作而言，文笔的缺陷只是一个恼人的不足，却并非是致命的弱点。

可这个译文就是另外一码事了。

它几乎从头到尾在照搬英文的从句结构，离自然流畅的中文表达相去甚远。当面对书中众多特定词汇时，它的选择也尤其令人感到困惑：比如把custom翻成“惯习”，把obligation翻成“科予义务”，把self-embracing翻成“自我圈限”，把inclination翻成“性向”，凡此种种，举不胜举。

对应“司法能动主义”或本书中的“司法造法”的概念，我觉得也完全可以把作者的这一翻译方法称为“翻译能动主义”或“翻译造词”。它毫无必要且令人抓狂地拓展了中文的疆域，也让哈特本就乏味的文笔变得愈加令人难以下咽。

对此，我想我是既难以“惯习”，也无法“受接”的了。

[Weronika · Rating 3 out of 5]

No fanką Harta to ja nie jestem

[vic]

if there was a hell on earth

[Ben Breen · Rating 3 out of 5]

I find Hart's conception of law compelling, and it is argued both clearly and well throughout this book. As an interested layman, I found the supporting arguments relatively accessible and we'll thought through, and appreciated the use of analogies to justify each position Hart takes.

However, reading this book did rather feel like only hearing one side of an argument at a dinner party. Hart spends many of his words rebutting criticisms of his work that I have not read, without ever fully explaining them to the reader. I found this somewhat unsatisfying and ultimately this hindered my enjoyment of the book as I did not learn anything new - or indeed think anything new - across multiple paragraphs and pages.

[Aaron Crofut · Rating 1 out of 5]

Disappointing. I sort of like the distinction between primary and secondary rules, but how secondary rules are established and receive recognition is not explained, largely because it is a ploy to explain why primary rules receive recognition. Everything else falls apart and I couldn't even tell you what it is Hart is trying to say.

[B · Rating 4 out of 5]

At first I was not very excited by the tremendous simplification and generality but ultimately the force of Hart's arguments and the sometimes way that he playfully examines it ultimately yields a good examination of fundamental concepts. Or are they? There seems to be no right or wrong on this, as much as there are a series of models of which Hart's is one.

[laura · Rating 3 out of 5]

seminal work in the philosophy of law-- legal positivism. the important insight is that there's nothing at the bottom of it all-- no transcendent principles waiting to be uncovered, but custom, habit, and the contingent values of human beings.

[Marlon Austin · Rating 1 out of 5]

i think this is without a doubt the worst book i’ve ever read.

when that guy in candide is like ‘ive been through so many things that should’ve changed my mind but i havent bc im a philosopher and as such im permanently stuck in my ways’ it was written preemptively about this.

[Shivam Singh · Rating 5 out of 5]

A must read....

[Hayley · Rating 2 out of 5]

Lost the debate but won the ability to write award.

[Jack Sanner · Rating 4 out of 5]

Enlightening and interesting to read! I found this to be a great first step into legal philosophy.

[Matt · Rating 3 out of 5]

As with Fuller, I likely didn't devote the attention necessary to fully appreciate this book.

[Renato Garín · Rating 5 out of 5]

HLA Hart, al igual que Kelsen, se sumerge en el profundo océano del pensamiento jurídico con su obra "El Concepto de Derecho". Esta no es simplemente una indagación sobre la naturaleza del derecho, sino también una meditación sobre su función, estructura y relación con la moral y la sociedad.

Desde las primeras páginas, Hart se enfrenta a la tradicional visión positivista del derecho. Para él, el derecho no es meramente un conjunto de órdenes respaldadas por amenazas. Propone, en su lugar, la idea del derecho como un sistema de reglas. En esta visión, las reglas no son simples mandatos, sino estructuras que guían y dan forma a la conducta humana.

Hart distingue entre dos tipos de reglas: las reglas primarias, que determinan cómo deben comportarse los individuos, y las reglas secundarias, que establecen cómo se crean, modifican o extinguen las reglas primarias. La regla de reconocimiento, una especie de regla secundaria, es esencial en su análisis, pues es la que permite identificar qué normas son parte del sistema jurídico y cuáles no.

Pero la innovación de Hart no se detiene allí. Introduce la idea de "discrecionalidad" en la interpretación y aplicación del derecho. Reconoce que no todas las situaciones pueden preverse en las normas, lo que da lugar a áreas grises que requieren juicio y discernimiento. Esta es una respuesta a las críticas a la rigidez del positivismo jurídico, que a menudo se le reprocha su incapacidad para abordar la complejidad de la vida real.

Uno de los debates centrales en "El Concepto de Derecho" es la relación entre derecho y moral. Aunque Hart mantiene una distinción clara entre ambos, reconoce que la moral puede influir en la formación del derecho. A diferencia de Kelsen, que buscaba aislar al derecho de otras influencias, Hart admite que la moral puede ser una fuente de derecho, aunque no necesariamente la única o la principal.

Adentrándonos en el diálogo entre Kelsen y Hart, encontramos dos visiones que, aunque diferentes en su enfoque, comparten un profundo interés por entender la esencia del fenómeno jurídico. Kelsen, con su "Teoría Pura del Derecho", busca aislar al derecho de influencias externas, creando un análisis lógico y sistemático. Hart, por otro lado, con "El Concepto de Derecho", explora la interacción entre reglas, la sociedad y la moral, ofreciendo una visión más matizada del derecho.

Ambos juristas, con sus respectivas obras, nos invitan a una travesía por el intrincado laberinto del pensamiento jurídico, cuestionando las premisas tradicionales y desafiando al lector a ver el derecho bajo una luz renovada. Juntos, Kelsen y Hart representan dos pilares fundamentales en la filosofía del derecho del siglo XX, y su legado sigue inspirando debates y reflexiones en la era contemporánea.

La obra de HLA Hart, aunque singular en su aproximación y perspectiva, no surge en un vacío intelectual. Las sombras de Ludwig Wittgenstein y Max Weber se proyectan sutilmente a lo largo de sus escritos, dejando huella en su concepción del derecho.

De Wittgenstein, filósofo del lenguaje, Hart toma la idea de que el lenguaje no es meramente descriptivo, sino que también tiene una función normativa. En "El Concepto de Derecho", Hart aplica esta noción al ámbito jurídico, sugiriendo que las leyes, como el lenguaje, no sólo describen comportamientos, sino que también establecen estándares y guían acciones. La influencia wittgensteiniana se hace palpable en cómo Hart examina las reglas jurídicas como partes de un "juego del lenguaje", donde las palabras adquieren significado en el contexto de la práctica social.

Por otro lado, Max Weber, con su meticulosa mirada sociológica, proporciona a Hart una lente para entender el derecho en su contexto social. Hart adopta de Weber la idea del derecho como un tipo de autoridad racional-legal, distinguiéndolo de otras formas de poder. La visión weberiana sobre la legitimidad y la burocracia resuena en el análisis de Hart sobre cómo las reglas son reconocidas y aplicadas en una comunidad.

En conjunto, Wittgenstein y Weber enriquecen y matizan el pensamiento de Hart, dotándolo de profundidad lingüística y sociológica, y convirtiéndolo en un pilar fundamental en la filosofía jurídica del siglo XX.

[Egemen Pamukçu · Rating 5 out of 5]

What's the connection between law and morality? Can law be unjust?

If Hart penned a click-baity NYT Opinion piece, the title could read something like "Law has nothing to do with morals, here's why." And, like most click-baity titles, it would be an accurate summary of the author's views, though with a deliberately incendiary tone that gets substantiated and somewhat justified in the essay that follows (if the piece is any good, that is).

Anyways, claiming morals and law to be entirely distinct concepts may seem nutty to some. "So you're saying people shouldn't follow the law?", or "Oh, you're saying law can't be just so we should stop pursuing justice?" He, of course, isn't saying any of those things. The idea is that the *validty* of law doesn't depend on its morality, however one defines morality.

So, were Hobbes or MLK Jr. wrong when they claimed unjust law is no law? Yeah. An unjust law is... an unjust law. And, well, it being immoral is just, like, your opinion man. To be clear, Hart avoids meta-ethical debates on moral realism vs. relativism. Previous thinkers, like Bentham, who argued for the "separation thesis" (separation of law and morals) pointed to the chaos that would ensue in a society where everyone chose to obey only those laws they found to be just. Hart's contention is more epistemological than this. He says the study of law doesn't gain anything from this connexion (yes, apparently that's how1950s legal philosophers spelled the word "connection").

As a moral philosophy enthusiast, I have been thinking legal philosophy must be an extension of it. And the two share common themes like rules, or "ought" claims. Yet, Hart successfully argues that I've been mistaken. What law is, is not what law ought to be. Thinking moral offenses can render law obsolete hinders our ability to understand what law is, blurring the concept of law and morals. Law is a social fact. And, yes, it often reflects the morals of a society. But it is so much more than that. A legal system is equipped with mechanisms for rule recognition, change, and adjudication. Law (and its enforcement) is not as vague or as static as moral rules. Legislation can be changed overnight, whereas morals and tradition, almost by definition, can't. And Hart goes over some interesting reasons why that is so.

Importantly, Hart is pretty receptive to the idea of civil disobedience when law is unjust. But let's make no mistake: it is still law. I didn't have a strong opinion on what law means or legal theory in general before reading this book, and I understand legal positivism, as laid out here, has become the dominant theory in jurisprudence although jurists still argue over specifics (as jurists do), so it is a great source to get started. Nevertheless, it's probably a good idea to read modern critiques before settling on a position. And, reading the book, you get the sense that this debate is not going away anytime soon. It's the kind of debate that will haunt humans, whatever corner of the cosmos we end up settling some millennia from now, as long as we live with others.