Hans Kelsen: The Pure Theory of Law
Kelsen's Pure Theory is the other great 20th-century positivist account. Unlike Hart, Kelsen is a normativist: law is a system of norms, not social facts. Legal norms derive their validity from higher norms, ultimately from the Grundnorm (basic norm)—a presupposed, hypothetical norm ('one ought to obey the historically first constitution'). The Grundnorm is not a social fact but a transcendental presupposition necessary to understand law as normative.
Kelsen and Hart differ fundamentally:
- Kelsen: legal validity is normative all the way down; the Grundnorm is presupposed, not observed.
- Hart: legal validity ultimately rests on the social fact that officials accept the rule of recognition.
Hart criticises Kelsen's Grundnorm as mysterious and unnecessary: we can explain law's normativity by the internal point of view, without invoking a 'presupposed' norm.
Kelsen's influence persists in Continental Europe and international law scholarship.
Scandinavian Realism: Olivecrona and Ross
Scandinavian realists, influenced by logical positivism and behaviourism, reject the notion of legal normativity altogether. For Olivecrona, 'norms' are psychological phenomena—feelings of compulsion. For Ross, legal statements are predictions of judicial behaviour, not genuine normative claims.
Hart rejects this reductionism: it cannot explain the internal point of view—the fact that officials treat rules as reasons, not just causes.
American Realism: Holmes, Frank, Llewellyn
American realists, reacting against formalism, emphasise law's indeterminacy and the role of judicial psychology, politics, and policy. Holmes's famous aphorism—'The prophecies of what the courts will do in fact, and nothing more pretentious, are what I mean by the law'—exemplifies the predictive theory.
Hart's critique: the predictive theory confuses the judge's perspective (where law guides decision) with the external observer's perspective (where law is predicted). It also cannot explain how judges decide what to do: they must rely on rules, not predictions of their own behaviour (on pain of circularity).
Nonetheless, American realists' emphasis on law's practical operation and officials' discretion influenced Hart's account of open texture.
Common Law vs Civil Law Systems
Hart's theory is often criticised as Anglo-centric, modelled on common law systems with judge-made law and flexible precedent. In civil law systems (e.g. France, Germany), codification and legislative supremacy are more prominent. Does Hart's rule of recognition apply equally?
Hart would reply: the rule of recognition's content varies by system. In civil law systems, the rule of recognition may assign supreme authority to codified statutes; in common law systems, to statutes plus precedent. The concept of a rule of recognition is general; its content is contingent.
Non-Western Legal Traditions
Critics argue that Hart's theory presupposes liberal, state-centred legalism. Customary legal orders in Africa, indigenous legal traditions in the Americas, and Islamic law raise challenging questions: Do these systems have a rule of recognition? If not, are they 'law'?
Hart himself acknowledged that his account aims to elucidate the concept of law as found in modern municipal legal systems. Whether it extends to non-state or pluralist legal orders remains contested. Some (e.g. Tamanaha) argue for legal pluralism; others (e.g. Raz) insist that law necessarily claims supremacy and monopoly on force, excluding pluralism.
This debate resurfaces in postcolonial and global jurisprudence.