H.L.A. Hart vs. Hans Kelsen

Attribute	H.L.A. Hart	Hans Kelsen
Legal Positivism	Yes	Yes
Separation Thesis	Yes	No
Primary and Secondary Rules	Yes	No
Rule of Recognition	Yes	No
Legal Validity	Yes	Yes
Legal Obligation	Yes	Yes
Grundnorm	No	Yes
Normativity	Yes	Yes
Legal Interpretation	Yes	Yes

Introduction

H.L.A. Hart and Hans Kelsen are two prominent legal philosophers who have made significant contributions to the field of jurisprudence. While both scholars have focused on the nature of law and its role in society, they approach the subject from different perspectives. This article aims to compare the attributes of H.L.A. Hart and Hans Kelsen, highlighting their key ideas and theories.

H.L.A. Hart

H.L.A. Hart, born in 1907, was a British legal philosopher who is best known for his work "The Concept of Law" published in 1961. Hart's theory of law revolves around the concept of a "rule of recognition," which he argues is the ultimate source of authority in a legal system. According to Hart, a legal system is comprised of primary and secondary rules. Primary rules impose obligations and duties on individuals, while secondary rules provide the framework for creating, changing, and enforcing primary rules.

Hart's theory emphasizes the importance of social acceptance and the internal point of view. He argues that legal rules are only valid if they are accepted by the majority of individuals in a society. Hart also introduces the concept of "legal positivism," which suggests that the existence and validity of law are separate from moral considerations. In other words, a law can be considered valid even if it is morally unjust.

Furthermore, Hart distinguishes between "external" and "internal" perspectives on law. The external perspective focuses on the behavior of lawmakers and the enforcement of rules, while the internal perspective considers the perspective of individuals who are subject to the law. Hart believes that the internal perspective is crucial for understanding the nature of law and its impact on individuals.

In summary, H.L.A. Hart's attributes include his theory of a "rule of recognition," the distinction between primary and secondary rules, the importance of social acceptance, the concept of legal positivism, and the emphasis on the internal point of view.

Hans Kelsen

Hans Kelsen, born in 1881, was an Austrian jurist and legal philosopher who is widely regarded as one of the most influential legal theorists of the 20th century. Kelsen's most notable work is "Pure Theory of Law" published in 1934. Kelsen's theory focuses on the hierarchical structure of legal norms and the concept of a "basic norm" as the foundation of a legal system.

According to Kelsen, a legal system is a hierarchical structure of norms, where each norm derives its validity from a higher norm. At the apex of this hierarchy is the "basic norm," which is a hypothetical norm that serves as the ultimate source of validity for all other norms within a legal system. Kelsen argues that the basic norm is not a factual or empirical reality but a necessary presupposition for the coherence and validity of a legal system.

Kelsen's theory also emphasizes the separation of law and morality. He argues that law should be studied as an autonomous discipline, independent of moral considerations. Kelsen's approach, known as "legal positivism," rejects the idea that law is inherently connected to morality. Instead, he suggests that legal norms are created and enforced through a specific legal process, regardless of their moral content.

Furthermore, Kelsen introduces the concept of "Grundnorm," which refers to the basic norm that underlies a particular legal system. The Grundnorm provides the foundation for the validity of all other norms within that system. Kelsen's theory of law is often criticized for its abstract and formalistic nature, as it focuses primarily on the structure and validity of legal norms rather than their substantive content.

In summary, Hans Kelsen's attributes include his theory of a hierarchical structure of legal norms, the concept of a "basic norm," the separation of law and morality, the idea of legal positivism, and the introduction of the Grundnorm as the foundation of a legal system.

Comparison

While H.L.A. Hart and Hans Kelsen share some similarities in their approach to legal philosophy, they also have notable differences. Both scholars emphasize the importance of understanding law as a social phenomenon and the need to separate law from morality. However, their theories diverge in terms of the ultimate source of authority and the focus of their analysis.

One key difference between Hart and Kelsen is their approach to the source of legal authority. Hart argues that the ultimate source of authority lies in a "rule of recognition," which is a social practice accepted by individuals within a legal system. In contrast, Kelsen posits the existence of a "basic norm" as the ultimate source of validity for all other norms within a legal system. While Hart's theory emphasizes the importance of social acceptance, Kelsen's theory relies on a hypothetical norm that is not based on empirical reality.

Another difference lies in the focus of their analysis. Hart's theory places significant emphasis on the internal perspective and the impact of law on individuals. He argues that understanding law requires considering the subjective experiences and perspectives of those who are subject to legal rules. On the other hand, Kelsen's theory is more concerned with the structure and validity of legal norms. His approach is often criticized for its formalistic nature, as it focuses primarily on the abstract hierarchy of norms rather than their substantive content.

Despite these differences, both Hart and Kelsen have made significant contributions to the field of jurisprudence. Their theories have shaped the way legal scholars and practitioners understand the nature of law and its role in society. While Hart's theory of a "rule of recognition" and Kelsen's theory of a "basic norm" may differ in their ultimate source of authority, they both provide valuable insights into the complex nature of law.

Conclusion

In conclusion, H.L.A. Hart and Hans Kelsen are two influential legal philosophers who have contributed greatly to the field of jurisprudence. While they approach the subject from different perspectives, their theories share common themes such as the separation of law and morality and the importance of understanding law as a social phenomenon. Hart's theory focuses on the concept of a "rule of recognition" and the internal point of view, while Kelsen's theory emphasizes the hierarchical structure of legal norms and the concept of a "basic norm." Despite their differences, both scholars have left a lasting impact on the study of law and continue to shape legal thinking today.