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Matthew H. Kramer, Hart on Legal Powers as Legal Competences, 19 Univ. of Cambridge Fac. of L. Res. J. __ (2021), available at SSRN.

As Professor Matthew H. Kramer states at the beginning of his rigorous, insightful analysis, Hart on Legal Powers as Legal Competences, “[a]s virtually everyone among the ranks of present-day Anglophone legal philosophers is aware, one of the chief complaints about Austin by Hart was that the former theorist had disregarded and obscured the major role of power-conferring norms in the structures and operations of legal systems.” (P. 1.) Indeed, Austin’s preoccupation with duty-imposing laws contrasted with his neglect of laws that confer powers, and H.L.A. Hart started his own quest for an adequate concept of law by rejecting his predecessor’s mistake. But what if Hart himself was guilty of a similar sin, at least to some extent?

Before taking up on that challenge, Kramer goes on to explore in some detail (1) Hart’s critique of Austin — in his distinction between power-conferring and duty-imposing laws — and (2) possible rejoinders from Austin defenders.

Hart not only showed that (a) “whereas duty-imposing laws establish unconditional requirements, the requirements specified by a power-conferring law are conditional on someone’s wishing to exercise the power that is conferred” (P. 5); he also showed that (b) while duty-imposing laws normatively close off opportunities by prohibiting certain modes of conduct, laws that confer powers expand opportunities by presenting individuals with ways of realizing their wants, and that (c) the very practice of legal officials — their legislative or administrative or adjudicative activities — presupposes laws that confer on these officials the powers which are necessary for such activities.

Is there a way out? Could a defender of Austin retort to Hart by, for example, reconstructing power-conferring laws as duty-imposing laws? Laws specifying the procedures for some legal arrangement to be obtained, by that view, could be understood as duty-imposing laws carrying a threat of sanction for nonconformity. According to Kramer, true, Hart should have acknowledged that “nullity is sometimes functionally equivalent to a sanction that is designed to steer people away from certain modes of behavior” (P. 7)—but only because all that was needed for him to maintain was that the function of many power-exercising conditions is not that of deterring undesirable conduct, but that of supplying the normative frameworks of various activities and enterprises. Besides, power-conferring rules, by their very type, entail the provision for nullity already in their structure — such provision is not attached to the rule like a sanction would be.

What if power-conferring laws are reconstrued as parts, as elements of laws that impose duties? Such a view can come in a moderate version—according to which power-conferring norms are fragments of veritable laws which impose duties—and an extreme one—according to which complete laws are not addressed to citizens, but direct officials to apply sanctions under certain conditions. According to Hart, while these theses do not fail on any logical or formal ground, they misrepresent the distinctiveness of law’s framework: power-conferring norms, after all, are central to the very existence of any legal system as such. You can interpret power-conferring norms like that. But why would you go for a lesser account of the object you are trying to explain?

Given all that—Hart’s powerful critique, grounded on the attribution of a fundamental role to norms that confer powers—it might come as surprise to learn that Hart himself ended up neglecting power-conferring norms in some ways.

First off, while Hart is famous for his distinction between the internal and the external points of view, Kramer maintains that he should have presented an account of the internal viewpoint of powerholders in his theorizing. In The Concept of Law, we can only find attempts to reconstruct the perspective of those who accept norms that impose duties. The internality of the internal point of view, according to Hart, presupposes that a person who accepts some norm N “is generally disposed [1] to comply with N’s requirements insofar as they are applicable to her conduct, and is also generally disposed [2] to criticize any contraventions of those requirements by other people, and is likewise generally disposed [3] to acknowledge the appropriateness of censure directed against her on any occasions when she herself has—perhaps unwittingly—contravened N.” (Pp. 15-16.) To speak of deviations, of pressure for conformity, is to speak of norms that impose duties — and it is not exactly easy to adjust this analysis of the internal point of view to the structure of power-conferring rules.

One possibility, according to Kramer, would be to direct elements [1], [2], and [3] of the internal point of view not to the (power-conferring) norm itself, but to acts of exercising the powers that have been conferred by the respective (power-conferring) norm. Another possibility would be to modify [1], [2], and [3], formulating them as the dispositions comprising the perspective of someone “who accepts a norm that imposes a duty to exercise some specified power in contexts where doing so will plainly be beneficial and legitimate.” (P. 18.) Sure, Kramer himself acknowledges that these are not definitive solutions to these problems; his main focus, after all, is Hart’s own neglect of power-conferring rules: a “remarkable” oversight “by a philosopher who did so much to draw the attention of his fellow philosophers to the import of power-conferring norms.” (P. 20.)

This oversight reoccurs in the final chapter of The Concept of Law, where Hart attempted to refute voluntarist theories of international law. While Hart was right to say that the norms under which a state imposes obligations on itself cannot derive their obligatoriness from self-imposed obligations, he failed to acknowledge the power-conferring — not duty-imposing — character of these norms. The same oversight is present in Hart’s reflections on necessary and sufficient conditions for the existence of a legal system: by submitting that the role of citizens in maintaining the operations of a legal system can consist in mere compliance with duty-imposing laws, Hart once again erred by neglecting the importance (and the very distinctive framework) of power-conferring norms.

While Professor Kramer’s essay can be taken as a sharp critique, it is yet another instance of his responsible and thoughtful engagement with Hart’s jurisprudence. There is no greater tribute than that.

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Cite as: Gilberto Morbach, Did H.L.A. Hart, of All People, Neglect Power-Conferring Laws?, JOTWELL (July 8, 2021) (reviewing Matthew H. Kramer, Hart on Legal Powers as Legal Competences, 19 Univ. of Cambridge Fac. of L. Res. J. __ (2021), available at SSRN),