H. L. A.

Hart's Concept of Law in the Perspective of American Legal Realism

Author(s): E. Hunter Taylor, Jr.
Source: The Modern Law Review, Vol. 35, No. 6 (Nov., 1972), pp. 606-620
Published by: Wiley on behalf of the Modern Law Review
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H. L. A. HART'S
PERSPECTIVE

CONCEPT OF LAW IN THE

OF AMERICAN LEGAL
REALISM
1.

INTRODUCTION

ANALYTICALjurisprudence is the dominant theme of the legal

theory of ProfessorH. L. A. Hart. But other jurisprudential

approachesare discerniblein his thought. One of the moreimportant of these other approaches is that of AmericanLegal Realism.
While Hart adopts some Realist tenets, he is severelycritical of
others. His criticismof Realism may be designedchieflyforeffect.
That is to say, Hart may have caricaturedAmericanLegal Realism
primarilyto make morevivid certainpointsin his own theory. Be
that as it may, Hart's distortionof Realism is so great as to require
response. The writeris of the opinion that Hart and the Realists
are not as incompatiblein thinkingas Hart in his The Concept of
Law seems to suggest.
Recognitionof one pointis essentialto a meaningfulcomparison
of Hart and the Realists:

Hart's attempt, in the tradition of

analytical jurisprudence,is to describe a universal legal system,

whilethe Realists seek a methodof criticalexaminationratherthan
a philosophyof law. As Karl Llewellyn, the greatest Realist,
explained:
" There is no school of realists. There is no likelihoodthat
therewill be such a school. There is, however,a movementin
thoughtand work about law. The movement,the methodof
attack, is wider than the number of its adherents. It includes

some or much workof many men who would scorn ascription

to its banner." 1
Because thereis no attemptby the Realists to formulatea complete
theoryof law, point by point comparisonof Hart and the Realists
is not possible. What is possible is a comparisonof the respective
in
focusesof attentionwitha consequentilluminationof differences
the degree of importance attached by each to various phases of law
and legal methodology.

While there is no simple systemof American Legal Realism,

adherents of the method do, however, share several " common
points of departure." Three of these, adopted fromMr. Justice
Holmes' The Path of the Law, are: (1) separation of law and
morality,whichis commonto both the Realists and Hart; (2) the
fallacy of the logical formas the source for answersto legal ques1 K. Llewellyn, " Some Realism About Realism," (1931) 44 Harv.L.Rev.
1222, 1233-1234.

606

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Nov. 1972

HART'S CONCEPT OF LAW AND AMERICAN REALISM

607

tions, which also is recognisedby Hart but is said by him to have

been extremelyexaggeratedby the Realists; and (3) the prediction
theoryof law, whichis expresslyand categoricallyrejectedby Hart
as generatinga distortedpictureof law.
2. SEPARATION OF LAW AND MORALITY

While the approaches of both Hart 2 and the Realists3 generally

separate law and moralityto facilitateclearer analysis, the two
differsubstantiallyin focus and tone. Only on the fringes,as may
be necessaryin an analytical theoryof law, does Hart's theory
of law.
provideroomformoral considerationsin the administration
For the most part, the rules of law are Hart's objective is. And
the ought most relevant to Hart's legal theory4 is the correct
applicationof rules which provide relativelyclear answersin most
cases. In the unusual fringe-areaor "penumbral" case, Hart's
legal oughtdoes acquire immediatemoral relevance:
" Here we touchupon a pointof necessaryintersection
between
law and moralswhichdemonstratesthe falsityor, at any rate,
the misleadingcharacterof the Utilitarians'emphaticinsistence
on the separation of law as it is and ought to be. Surely,
Bentham and Austin could only have writtenas they did
because they misunderstoodor neglected this aspect of the
judicial process, because they ignored the problems of the
penumbra."5
While Hart and the Realists concur that moral considerations
are of vital importancein areas of legal uncertaintythey disagree
rathersharplyon the scope of law's penumbralfrontiers. Hart's
theoryof rule ambiguityand vagueness is, for at least the most
part, quite mechanistic. He suggeststhat while the meaningsof
most words containlarge cores of certainty,the meaningsdo tend
to become fuzzy at some outer point. For example, a prohibition
against use of a vehicle in a park would clearlyencompassthe use
of automobiles,buses and motorcycles,but the clarity of applicabilitybreaks down when the question becomes use of an electrically propelledtoy automobile.8 This same approach is taken by
2 See H. L. A. Hart, " Positivism and the Separation of Law and Morals '
593, 619-629.
(1958) 71 Harv.L.Rev.
3 The foundation for the Realist position was struck by Holmes J., see note
15 infra and accompanying text. For statements of the Realist position.
see e.g. H. W. Jones, " Law and Morality in the Perspective of Legal
Realism"
799, 808 n. 32; K. Llewellyn, "A
(1961) 61 Colum.L.Rev.
Realistic Jurisprudence-The Next Step " (1930) 30 Colum.L.Rev.
463-464;
K. Llewellyn, " Some Realism About Realism " (1931) 44 Harv.L.Rev.
1222, 1236-1237, 1253-1256; see also H. Oliphant, " Facts, Opinions and
Value-Judgments " (1932) 10 Tex.L.Rev. 127.
4 Hart does recognise the need for moral criticism of law. See e.g. Hart,
The Concept of Law, pp. 157-163 (1961). But in emphasis, this need is an
incidental part of Hart's theory.
Hart, " Positivism and the Separation of Law and Morals " (1958)
6 H.L.A.
71 Harv.L.Rev.
593, 608. See footnote 26 infra and accompanying text.
6 Hart, The Concept of Law, pp. 125-126 (1961); Hart, " Positivism and the
593, 607.
(1958) 71 Harv.L.Rev.
Separation of Law and Morals"

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THE

608

MODERN

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VOL. 35

Hart in his examinationof legal standards--conceptssuch as "fair

rate," " safe system,""reasonable care," and " due process." He
describessuch concepts as having certaintyin the more extreme
possible cases and losing that certaintyas the factual situation
becomes less extreme.'
Such a view of legal uncertaintysacrificesaccuracy and comand simplicity. Missed are some
pletenessforthe sake of symmetry
patent areas of uncertaintyand some that are not so obvious.8
One of the most importantomissionsis that of the competihglegal
premises-an area that provideschoice by categorisationand thus
allows injectionof moral considerationsinto the decisionalprocess.
A vivid example of the possibilitiesof decision making through
categorisationcan be found in the famous case of Hynes v. New
York Cent. R.R.9 There a sixteen-year-old
lad, after swimming
across a river,saw a board extendingout over the river,away from
the bank. The lad climbedout of the river,onto the bank, which
was part of the defendant'srailroadyard. He walked out onto the
board, was hit by a fallingwire and fell to his death in the river
below. The lowercourtheld that the lad was a trespasserthus not
due the ordinarystandardof care. The Courtof Appeals reversed,
holdingthat the river was a "public way." Thus the lad, while
standingon theboard over the riverwas not a trespasser. Therefore
the defendantshould have been held to the higherdegree of care.
In his opinion for the court Cardozo J. clearly declared that the
courthad been faced withtwo valid competingpremises. The court
selectedthe one consistentwiththeirview of justicein the case.
In numerous other settings,result-orientedcategorisationis
often unavoidable. One such instance is where non-substantial
of performance
has occurredpriorto revocaactivityin furtherance
tion of an offerto enterinto a unilateralcontract. If the activity
is categorisedas " beginningof performance,"the offeroris precluded fromrevocation;if categorisedas " preparationforperformance " the revocationis effective.10The same latitude of choice is
presentin many cases of mistakein contractformation. Mistakes
categorisedas mutual have been viewed by the common law as
fatal to contractformation,but not so if categorisedas unilateral.
Thus in the landmarkdecisionin Sherwoodv. Walker11 the court
viewed the buyer and seller of a pregnantcow to have bargained
thinkingonly that the cow was sterile. Thus mutual mistakeprevented contractformation. On the other hand, if the court had
The Concept of Law, pp. 127-132 (1961).
criticisms of Hart's theory of legal uncertainty, see G.
Gottlieb, The Logic of Choice, pp. 103-119, 125-130 (1968); R. Dworkin,
" The Model of Rules " (1967) 35 U.Chi.L.Rev.
14; G. Hughes, " Rules,
Policy and Decision Making " (1968) 77 Yale L.J. 411.
9 231 N.Y. 229, 131 N.E. 898 (1921).
o10 See Restatement of Contracts (Second), para. 45, Comments d, f (American
Law Institute 1964).
11 66 Mich. 568, 33 N.W. 919 (1887).
Hart,

8 For additional

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Nov. 1972

HART'S CONCEPT OF LAW AND AMERICAN REALISM

609

describedthe buyer's state of mind as one of conscious ignorance

of the fecundityof his purchase, or as having consciouslybeen
hopingfora good bargain,the mistakewould have been categorised
as unilateraland would not have preventedcontractformation.
Among the othermore significantareas of judicial choice which
Hart overlooksare those in whichtwo lines of precedentexist, each
Anotheris the techniqueof
decidingthe same point differently.12
avoiding an undesirableprecedentby confiningapplicabilityto its
peculiar facts.13 Also missed is the technique very importantto
the growthof law of extendingolder precedentsto varyingnew fact
situations.14
The Realist is-oughtdichotomyis more complex than that of
Hart. Realism's approach offersmore latitude for injectingconsiderationsof moralityinto the administrationof law. Realism
has taken the view of its foundingfather,Holmes, on the potential
role of moral considerationsin legal decisionmaking. The Holmesian reason forurgingan analyticalseparationof law and morality,
curiouslyoftenignoredby his critics,was clearlystatedin The Path

ofthe Law :

" When I emphasize the difference

betweenlaw and morals I
do so withreferenceto a singleend, that of learningand undermaster
standingthe law. For that purposeyou mustdefinitely
its specificmarks,and it is for that I ask you forthe moment
to imagineyourselvesindifferent
to otherand greaterthings." 15
ResponsibleRealists continuethe basic Holmesian theme urginga
separationof law and moralityin orderto definethe properrole for
moral considerationsin the operationof law. Llewellynpredicted
great potentialforthe methodin the appellate process:
"
[T]he fieldof freeplay forOughtin appellate courtsis vastly
See K. Llewellyn, The Common Law Tradition, pp. 85, 450-461 (1960); see
also M. Feild and L. Sutter, " The Price of Milk and the Supreme Court
of Georgia " (1968) 19 Mercer L.Rev. 366, 375-389; H. Taylor, " Repeal of
the Presumptionof the Validity of Subsequent Marriages " (1970) 21 Mercer
L.Rev. 465, 470-477.
1a3 See K. Llewellyn, The Common Law Tradition, p. 87 (1960); see e.g.
Crooker v. California, 357 U.S. 433 (1958) (in limiting the holding in
Powell v. Alabama, 287 U.S. 45 (1932), the majority in Crooker noted:
"What due process requires in one situation may not be required in
another, and this, of course, because the least change of circumstancesmay
provide or eliminate fundamentalfairness.") Ibid. at p. 441, n.6; Polora v.
Wabash Ry., 292 U.S. 98 (1934) (limiting the holding in Baltimore &
Ohio R.R. v. Goodman, 275 U.S. 66 (1927)); Riverdale Fabrics Corp. v.
Tillinghast-Stiles Co., 306 N.Y. 288; 118 N.E. 2d 104 (1954) (limiting
holding in Level Export v. Wolz, Aiken & Co., 305 N.Y. 82, 111 N.E. 2d
218 (1953) and perhaps substantially reviving what had been " the rule "
of Matter of Lehman v. Ostrovsky,264 N.Y. 130, 190 N.E. 208 (1934)).
4 Ibid. at pp. 82-83; see e.g. Cintronev. Hertz Truck Leasing, 45 N.J. 434,
212 A. 2d 769 (1965). See generally the 64 techniques for utilising precedent listed by K. Llewellyn, The Common Law Tradition, pp. 77-91
(1960).
15 0. W. Holmes, " The Path of the Law " (1897), Collected Legal Papers,
pp. 167, 170.
12

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610

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REVIEW

VOL. 35

wider than traditionalOught-boundthinkingever had made

clear. This, withinthe confinesof precedentas we have it,
withinthe limitsand on the basis of our presentorder.'"
ProfessorJones, leader among contemporaryRealist thinkers,
has depicteda morecompletehorizonof potentialforthe method:
" The choice betweenalternatives,the selectionof the path to
be pursued, cannot but be influencedby the decision-maker's
ought to be . . . when we enter the realm of the judge's
'serious business,' the prosecutor's discretion, the practising

lawyer's choices, we need a moral theoryfullyas demanding

as the older natural law traditionbut more directlyaddressed
to the pointsof strainat whichmoralinsightsare most needed.
In realist perspective,choice, decision, and responsibilityfor
decisionare centralelementsfora philosophyof law." 17
While the approachesof Hart and the Realists develop fromthe
same startingpoint,theydiffer
radicallyin emphasis. Hart's theory
allowsmoralitya directrolein legal administration
onlyat the outer
edges; the Realists provide an orderlymethod of injectingmoral
considerationsinto the mainstreamof a lawyer'severyday" serious
business." Actuallywhat Hart is sayingis that uncertaintyexists
only on law's outerlimitsand that in this area moralconsiderations
can properlybe used in the administrationof law. The Realist is
sayingthat the lawyerwho attains a highlevel of understandingof
that with whichhe workscan readilydispose of the many routine,
easily answeredquestions and focus his attentionson law's broad
lee-wayareas. Thus if a lawyerknowshis business,thereis significant roomforthe injectionof moral considerationsinto the bulk of
what will be his day to day endeavours.
3. THE

FALLACY

OF THE LOGICAL

FORM

Both Hart and the Realists agree that the syllogisticmethodis not
a satisfactory
explanationof all legal decisions. While in agreement
to this extent,thereis again fundamentaldifference
in accent.
Llewellyn, " Some Realism About Realism " (1931) 44 Harv.L.Rev.
1222, 1252. Professor Harry W. Jones, leader among contemporaryRealist
thinkers,has correctlyinterpreted,I believe, Professor Karl Llewellyn to
have advanced a three-sidedtheory of the is and ought. To Llewellyn,
the law in action-what officialsare doing about disputes-was the basic
is. The basic ought was how legal precepts should be applied. At this
point, Hart and the Realists part company. Because the Realist's ought
contains the ambiguity of precedent in hard cases which necessarily provides legal officialswith choice, there are implicit in the Realist ought
ethical and moral considerationsindependentof positive law. Thus here a
second ought-a moral ought-is injected into the Llewellyn theory. As to
this second ought, the first ought-how legal precepts should be appliedcan become is; once legal rules are properlyutilised, the judicial door is
opened to consideration of the "ought to be "-the moral ought. See
H. W. Jones, " Law and Morality in the Perspective of Legal Realism "
(1961) 61 Colum.L.Rev. 799, 808 n. 32.
M1H. W. Jones, " Law and Morality in the Perspective of Legal Realism "
(1961) 61 Colum.L.Rev. 799, 808-809.

16 K.

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HART'S CONCEPT OF LAW AND AMERICAN REALISM

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Realist scepticismtoward the role of the logical formin law is

keynotedin the famouspassage fromHolmes' The CommonLaw:
" The lifeof the law has not been logic; it has been experience.
The feltnecessitiesofthe time,the prevalentmoraland political
theories,intuitionsof public policy avowed or unconscious,
even the prejudices which judges share with their fellowmen, have had a good deal more to do than the syllogismin
the rulesby whichmen should be governed."18
determining
Later the Realists amplifiedthis Holmesian theme. According
to Llewellyn,one major reason forthe fallacyof the logical formis
because the doctrineof precedentis " two headed ":
" [I]n any case doubtfulenoughto make litigationrespectable
the available authoritativepremises-i.e., premiseslegitimate
and impeccable under the traditionallegal techniques-are at
least two, and . . . the two are mutually contradictory as

applied to the case in hand." 19

Thus the doctrineof precedentis in most instances a theory of
possibilities. Not only may there be two lines of precedentthat
presentchoice, but, more importantly,in serious cases there will
always be more than one way of interpreting
any legal rule derived
fromrelevantprecedent.20A " strictview " of a case can be used
to limit the scope of "unwelcome precedents." A "loose view "
ignoringdistinguishingfactors allows the jurist to capitalise on
" welcomeprecedents."21 This methodologyof choice accompanied
by consciousor unconsciousconsiderationsof " social advantage"
is the essence of the commonlaw judicial process.
Hart does not worshipblindly at the altar of certaintyin the
templeof the legal rule,but the foundationof Hart's legal systemis
the rule, and the primeelementof the ruleis a dominantcentrearea
of certainty. Any other portraitof law is viewed as false and
deceiving.22He even has gone so far as to declare specifically:
"
[T]he life of the law consiststo a very large extent in the
guidance both of officialsand private individuals by determinate rules which, unlike the applications of variable
standards,do not require fromthem a freshjudgmentfrom
case to case."

23

While Hart has acknowledgedthat " men cannotlive by deduction alone," 24 he has made clear his view that the need for more
than the rule in the administrationof law is limitedprimarilyto
that hazy frontierbeyond law's vast mainland of certainty. The
18s 0. W. Holmes, The CommonLaw, p. 3 (1891).

19 K. Llewellyn, " Some Realism About Realism " (1931) 44 Harv.L.Rev.

20 See K. Llewellyn, The CommonLaw Way, p. 21 (1960).
1222, 1239.
21 K. Llewellyn, The Bramble Bush, pp. 67-70.
22 See H. L. A. Hart, The Concept of Law, pp. 131-132, 135 (1961).
23 Ibid. at p.
24 H. L. A.

132.

Hart, " Positivism and the Separation of Law and Morality"

(1958) 71 Harv.L.Rev. 593, 608.

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THE MODERN LAW REVIEW

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VOL. 35

Realist is charged by Hart as a legal heretic; the accused is said

to deny the existence of the rule-the centre of Hart's theory.
Hart sees as one centralthemeof Realism the " claim that talk of
rules is a myth, cloaking the truth that law consists simply of
decisions of courts and the prediction of them. .. ." 25 He warns
that Realist theory,to be used beneficially,must be understoodto
representthe exceptionalratherthan the general; it is a chart of
law's twilightzone:
" [A]t the fringe of . . . [law], we should welcome the rule-

skeptic,as long as he does not blind us to the fact that what

makes possible these strikingdevelopmentsby courts of the
most fundamentalrules is, in great measure, the prestige
gathered by courts from their unquestionablyrule-governed
operationsover the vast, centralareas of the law." 26
The "straw-Realist" constructedby Hart bears little resemblance to the real thing. The real-Realistwould disagreewithHart
on two primarypoints. First, Hart mistookthe focus of Realist
oflaw. Choosingto studyand urgingothers
attentionfora definition
to studythe complexproblemsof law's leeway areas and its actual
societal impact is not to claim that law is a shorelessworld of
uncertainty.Second, the Realist would disagree with Hart on the
breadth of legal certainty. The Realist would argue that a little
cynicismand a close look at the law in action reveals the falsityof
much, thoughdefinitelynot all, apparent "book rule " certainty.
The recordshows clearlythat Legal Realism is not destructive
denial of the existenceof legal rules.27 This conclusionis demonstratedby Llewellyn'sresponseto Dean Pound's claim that realists
distortthe extentto whichjustice " attains certaintythroughrule
and form."28 This responsewould probablybe Llewellyn'sresponse
as well to the claim by Hart that Realists are non-believersin the
legal rule: "The canvass shows that our subjects are much concerned with how far justice obtains certaintyand with how far
it is attained--orhindered-throughrule and form. But that they
tend to differwith the . . . [Professor]on the 'how far' in both
cases."

29

H. L. A. Hart, The Conceptof Law, p. 150 (1961).

Ibid. at p. 150; see note 5, supra, and accompanyingtext.
27 K. Llewellyn, " Some Realism About Realism " (1931) 44 Harv.L.Rev.
1222, 1237.
28
R. Pound, " The Call for a Realist Jurisprudence" (1931) 44 Harv.L.Rev.
697, 707.
2
K. Llewellyn, " Some Realism About Realism " (1931) 44 Harv.L.Rev.
1922, 1231. Without question there were a few early Realists who were
irresponsible and against whom Hart's charge would have real merit.
For the most part these men have been forgottenand are not even mentioned by Hart in The Concept of Law. Instead, the responsible majority
wing of Legal Realism is accused of rule rejection-an intellectual sin
which simply was not theirs. For an indication of some of the names
that might have been included in Hart's indictment, see K. Llewellyn,
" On Reading and Using the Newer Jurisprudence" (1940) 40 Colum.L.
Rev. 581, 598-614.
25

26

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At anotherpoint,in facton the firstpage of The ConceptofLaw,

Hart draws on a statementby Llewellynto supportan allegationof
"gross exaggerations of truths.'" He cites Llewellyn's long
abused and misunderstoodstatement from The Bramble Bush:
" What officialsdo about disputes is . . . the law itself." 3n Hart

chargesthe Realist withrefusingto recognisethe obvious and prime

phases of law-the easily decided case and the internalaspect of
law. Many have taken Llewellyn to task for this statement.32
Few, other than Hart, have done so since Llewellynexplained the
statementin the prefaceto the secondeditionof The BrambleBush:
" No piece of ammunitionin the whole teapot comparesin the
thereof,with
frequencyof its use, nor yet in the irresponsibility
our little thirteen-word
passage. With its help, I was shown
to disbelieve in rules, to deny them and their existence and
desirability. .

. This was painful to me. But it was even

more painful to observe that none of the attackers,exactly

none, gave any evidence, as they slung around the little sentence, of having looked even at the rest of Bramble Bush
itself."33
Llewellynwas not assertingan exclusivedefinitionof law in his
ill-treatedstatement. The message for the intended law student
audience was not the non-existenceof legal rules, but was a suggested focus of attentionformeaningfulstudy of law. Llewellyn's
concernwas not the law on the books, the existenceof whichhe did
not deny,but the law in action. This law in action is most vividly
revealedin the conductof officialsin settlingdisputes. Thus official
conduct in dispute settlementwas urged to be the focal point for
purposefulanalysisof law's real impact.
Two other of Hart's charges against Realist theory require
comment. First, Hart's caricature "Realist" accepts the discredited psychological theory of rationalisation. The judge in
decidinga case, ratherthan adheringto the mandate of the legal
rule, selectshis desiredresultand thenseeks out an applicable legal
rule to supporthis previouslyreacheddecision.34In a note at page
250 of The Concept of Law, Hart unequivocally charges Judge
JosephC. Hutcheson,Jr.,as havingadvocated the erroneoustheory
of " intuitiveapplicationof rules." Withoutquestion,some of the
discredited" fringe-element"Realists could have been cited to
But the Realist charged
supportsuch a claim of irresponsibility.35
bears little resemblanceto Hart's intellectualvillain.
30 H. L. A. Hart, The Concept of Law, p. 2 (1961).
31 K. Llewellyn, The Bramble Bush, p. 12 (2nd ed., 1951).
32 7bid. at p. 10.
33Ibid. Such an explanation should not have been needed. See the second
paragraph in The Bramble Bush below the one containing the criticised
sentence.
34 H. LI. A. Hart, " The Concept of Law," p. 137 (1961).
35 Even, the early Judge Jerome Frank might fall within this category, see
J. Frank, Law and the Modern Mind (1930).

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The recordspeaks foritself. To begin with,in the articlefound

damning by Hart, Judge Hutcheson in his discussion clearly
indicated,by referenceto Judge Bridlegooseand the cases to be
decided by "' large dice " and those to be decided by " small dice,"

that he was addressinghis remarksto the " small dice " cases-the
hard to decide " leeway" cases.3" This, in itself,reveals Judge
Hutchesonto be innocentof the Hart charge.
as to the " leeway " cases, JudgeHutchesonsaid:
Furthermore,
" [W]hen the case is difficultor involved, and turns upon a
hairsbreadthof law or a fact, that is to say, 'when there are
many bags on the one side and on the other' and Judge
Bridlegoose would have used his 'little small dice,' I, after
canvassingall the available materialat my command,and duly
cogitatingupon it, give my imaginationplay, and brooding
over the cause, wait forthe feeling,the hunch-that intuitive
flashof understandingwhichmakes the jump-sparkconnection
between questions and decision, and at the point where the
path is darkest for the judicial feet, sheds its light along the
way." "
Judge Hutchesonwas not advocatingjudicial decisionsbased upon
whim,capriceor visceralreactionsupportedonly by post-decisional
applicationof legal precepts. Certainly," all relevantmaterial at
my command" includes those legal rules which appear to have
possibleapplicability.
The Hutcheson message may have been influencedby and is
strongly supported by John Dewey's theory of Instrumental
Reasoning:
" [M]en do not beginthinkingwithpremises. They beginwith
some complicatedand confusedcase, apparentlyadmittingof
alternativemodes of treatmentand solution. Premises only
gradually emerge from analysis of the total situation. The
problemis not to draw a conclusionfromgiven premises; that
can best be done by a piece of inanimatemachineryby fingering
36 J. Hutcheson, " The JudgmentIntuitive; The Function of the 'Hunch'
in Judicial Decision " (1928) 14 Cornell L.Q. 274; see also Rabelais, " Bridlegoose Sets Forth The Reasons Why He Employed Dice In The Cases That He
Was Called Upon To Decide " at p. 497, in The Portable Rabelais (Putnam
transl., 1964). Any doubt as to Judge Hutcheson's position should have
been removedby his article " Lawyer's Law, and the Little, Small Dice "
(1932) 7 Tul.L.Rev. 1. There without subtle reference,the learned judge
explains: " When the matter is plain, the judge is bound, whetherhe likes
it or not, to follow the beaten way. When, however, he is compelled to
decide a cause for which there is no precedent, no serviceable analogy
available; when on this side and on that advocates are powerfullyand
cunninglypressing choices for adoption, what is the hardly pressed judge to
do? . . . He cannot, because of our modern scruples against the judgment
aleatory, openly confess, as old Judge Bridlegoose did, to divination by
the 'little, small dice.' " It is in these cases that Judge Hutcheson urges
use of the intuitivereasoning process he describes as the " judicial hunch."
See ibid. at p. 10.
in
37 J. Hutcheson, " The JudgmentIntuitive: The Function of the 'Hunch'
Judicial Decision " (1929) 14 Corn.L.Q. 274.

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Nov. 1972

HART'S CONCEPT OF LAW AND AMERICAN REALISM

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a keyboard. The problem is to find statements,of general

principleand of particularfact, which are worthyto serve as
premises. As a matterof actual fact, we generallybegin with
some vague anticipationof a conclusion(or at least of alternative conclusions),and then we look around for principlesand
data whichwillsubstantiateit or whichwill enable us to choose
intelligentlyrival conclusions."38
NeitherDewey nor Hutchesonis urgingthat the rule or preceptbe
ignored.
The Realist message, like that of Dewey, is that the rule or
precept alone cannot be relied upon to solve life's most difficult
problems-legal or otherwise. As Martin Buber, in a different
context,so well declared:
" [T]he relationof faithis no book or ruleswhichcan be looked
up to discoverwhat is to be done now, in this very hour . .
I give the word of my answer by accomplishingamong. the
actions possible that whichseems to my devoted insightto be
the rightone. With my choice and decisionand action-committingor omitting,actingor persevering-I answerthe word,
howeverinadequately,yet properly;I answerformy hour." 39
Man, with an awareness of his freedom,its limitationsand the
must bringhis experience,knowledgeand
resultingresponsibilities,
available ascertainableinformationto bear in an intensivethought
process. Previouslyformulatedrulesmust be taken into account in
a well-reasoneddecision,"40
but the decisionis much more than the
resurrectionof an already existing rigidly fixed abstract rule.
Because all potentiallyrelevant rules must be consideredin the
" leeway" cases, each decisionin such cases in one sense moves the
law more and more toward certaintyby increasingthe numberof
specific types of cases previously decided. Yet the movement
towardcertaintymustforthe mostpart be illusory. Man's scientific
knowledge,social suppositionsand economic conditionsare constantlyin flux,producingnew legal problemsand necessitatingnew
answersto various old problems. Thus the movementof the law
must be an ebb and flow,toward certaintythen inevitablyalways
away."4'

J
J. Dewey, "Logical Method and Law " (1924) 10 Corn.L.Q. 17, 23.
39 M. Buber, Between Man and Man, p. 68 (Beacon ed., 1955).
40 As so accurately noted by Professor R. W. M. Dias: "[T]he assertion
that the 'hunch' is supreme goes scarcely far enough, for the 'hunch'
is itself the product of standards, patterns of behaviour, concepts and
rules . . . ": Jurisprudence,p. 479 (2d ed., 1964); see also E. W. Patterson,
" Logic in the Law " (1942) 90 U.Pa.L.Rev. 875, 890.
41 Also of significance,and another matter perhaps confused by Hart, is that
Judge Hutcheson may to a substantial extent have been more of an advocate
of fact scepticism than "rule scepticism." The judicial cynics known
as "fact sceptics" joined their Realist brethren,the " rule sceptics," in
attacking the logical form of judicial decisions. However, their attack was
directed at the minor premise-to the process of fact determinationat the
trial level. They did not doubt the existence of rules, they doubted the
"factual brew" that went into the syllogism with the rule. For a

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THE

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VOL. 35

A related erroneousassertionby Hart against the Realists is:

"Legal

Realism . . . in some versions . . . holds no statute to be

law untilit is actuallyapplied by a court." 42 This principleis from

the theoryof law formulatedby John ChipmanGray, who, while
he contributedto later Realist theoryby movingthe judge fromthe
wings to the centreof the judicial stage, cannot be included as a
memberof the Realist group. He was, instead, a " great cousin"
of Hart in the familyof analytical jurisprudence. While Realists
are interestedin what courtsdo, no Realist, so far as my research
has revealed,has sharedGray's theoryof statutesas sourcesof law
separate fromactual law. In fact,it seems safe to say that concern
forthis type of analyticallabellingis simplynot a primarypart of
the Realist focus. Again a " false enemy" is challengedby Hart.
4.

PREDICTION

THEORY

Accordingto Hart, once the Realist has destroyedthe legal rule,

he is leftwithnothingbut a theoryof law as a body of predictions
of how officialswill decide disputes.43 To illustrate the alleged
Realist preoccuptionwith predictiontheory,Hart extractsanother
statementfromLlewellyn'sBrambleBush: " [R]ules are important
so far as theyhelp you to predictwhat judges will do. That is all
their importanceexcept as pretty playthings.""44 Of this Hart
urges:
" To argue in this way is to ignorewhat rules actually are in
any sphereof real life. It suggeststhat we are faced with the
dilemma: 'Either rules are what they would be in the formalist's heaven and they bind as fettersbind: or there are no
rules,only predictabledecisionsor patternsof behaviour.' Yet
surelythis is a false dilemma." 45
To borrowan apt phrase used in a different
context by ProfessorDworkin: " It is as if a zoologisthad provedthat fishare not
mammals,and then concludedthat they are reallyonly plants." 46
Withoutquestion the Realists emphasisethe importanceof ability
to make accuratelegal predictions,but the reason forthis emphasis
is not, as charged by Hart, because of any theoreticalnegation
of the legal rule. Rather it is because recognitionof areas of
statement of the distinction between "rule scepticism" and "fact scepticism," see J. Frank, "Cardozo and the Upper-CourtMyth," (1948) 13
Law and ContemporaryProblems 369. That Judge Hutcheson was a "factsceptic" is suggested by at least two factors. First, at the time he wrote
the article cited by Hart, Judge Hutcheson was a trial judge and thus
necessarily was having to cope with numerous difficultfactual situations.
Second, his examples in the article are patent cases and admiralty collision cases, both of which he describes as presenting difficultfactual
problems.
42 H. L. A. Hart, The Conceptof Law, p. 64 (1961).
43 Ibid. at pp. 132-137.
44 K. Llewellyn, The Bramble Bush, p. 14 (2nd ed., 1951).
45 H. L. A. Hart, The Conceptof Law, p. 136 (1961).
46 R. Dworkin, " The Model of Rules " (1967), 35 U.Chi.L.Rev. 14, 40.

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Nov.

1972

HART'S

CONCEPT

OF LAW AND AMERICAN

REALISM

617

certaintywill limit litigation to areas of uncertainty. Only by

developing and testingtentative predictivemethodsis it possible
to ascertain whether any reasonably accurate criterionfor case
predictionin this area does exist. Also because the law never
remainsstill,thereis an ever presentneed forpredictionof developments both in areas of presentand potentialmovement. Today's
certaintymay be tomorrow'schange and the uncertaintyof today
may be the certitudeof tomorrow.
Realist predictiontheoryis not intendedto provide a definition
of law; it is instead a consciousmatterof focus. Predictionis one
of the areas of the lawyer's "serious business" upon which the
Realists concentratetheir attention. One Holmesian statement,
not intendedas generaldefinition,providedthe foundationfor the
later Realist predictiontheory. In a lectureto law students,Holmes
declared: "The propheciesof what courts will do in fact, and
nothingmorepretentious,are whatI mean by the Law." 47 Holmes,
in spotlighting
law's uncertainty,surelymeant: " What I mean by
law in thislecture." Predictionof case resultswas necessaryaccording to Holmes because considerationssmoulderingbeneath the
surfaceof the logical formin judicial decisionshave ofteninfluenced
greatlyor even controlledthe outcome of cases. The goal is more
certainty,throughexaminationof the law in action as opposed to
the law in books. From such analysis the Realists have sought to
develop narrowerand more accurate legal categories,to discover
the policyconsiderationsat workin judicial decisionsand ultimately
to providetools of analysisformaximumaccuracyin mappingboth
the movementthat law is undergoingat any given time and the
movementwhichis about to occur.
Again,Hart and the Realists are not so much at theoreticalodds
as one mightintiallyexpect. They are simplyfocusingon different
matters-a difference
more in emphasis than actual theory. Hart
a modelof law in as completea formas possible. His
is constructing
primaryconcernis with legal rules. The Realists are focusingnot
on a total legal constructbut on seriouseverydayproblems. Theirs
are the questions: What is the law in action? How does it differ
fromthe law on the books? What is its effecton the citizenry? How
may it be improved?

48

470. W. Holmes, " The Path of the Law " (1897), Collected Legal Papers,
48

pp. 167, 173.

According to Llewellyn: They (the realists) want Law to deal, they
themselves want to deal, with things, with people, with tangibles, with
definite tangibles, and observable relations between definite tangibles-not
with wordsalone; when law deals with wordstheywant the wordsto represent
tangibles which can be got at beneath the words, and observable relations
between those tangibles. They want to check ideas, and rules, and
formulas by facts, to keep them close to facts ": " Some Realism About
Realism " (1931) 44 Harv.L.Rev. 1222-1223. On improvement of the
Law as the primarygoal of Realist endeavours,see J. Frank, If Men Were
Angels, p. 57 (1942) and note 16 supra with accompanyingtext.

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618

THE

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5. HART AND THE

LAW
REALISTS

REVIEW

VOL. 35

RECONCILED

The Realists are illusoryadversariesfor Hart. They do emphasise

a different
dimensionof jurisprudence. Hart selected as his task
the constructionof an analyticalmodel of law. The Realists offer
no attemptat a completelegal philosophy49; theircontributionis
one of methodology-an approach to analysis. Hart stressesthe
entiretyof the system. The Realists focuson the pointsof stressin
the actual day-to-dayoperationof the legal system,points which
tend to be particularlyvisible in the adjudicationof legal disputes.
Their centralthemeis that, if legal rules and the decisionalprocess
are trulyunderstood,any case actually worthlitigatingwill be one
in the " leeway " areas of law describedby Hart as the '" penumbral" area of legal rules. It is here that the legal subject, in this
contextthe decision maker, will be able, in pursuitof a just and
moral way, to dominatethe legal object, the rules of the system.
It is here that man cannot and should not " live by deduction
alone."

Just as Realism has been reconciledwithNatural Law theory,50

so too can it be readilyharmonisedwith Hart's analyticaltheory.
Hart offersa foundationfor legal research. When faced with the
question of what an analytical model seeks to reveal, Hart has
wiselyanswered:
" Suppose a man to be occupiedin focusingthrougha telescope
on a battleshiplying in the harbour some distance away. A
friendcomes up to him and says 'Are you concernedwith the
imagein yourglass or withthe ship? ' Plainly, (if well advised)
the otherwould answer,'Both. I am endeavouringto alignthe
image in the glass with the battleship in order to see it

better.' " 51

Yet the overalltone of The Conceptof Law suggeststhat the architect intended his model and theory as ends in themselves. The
model of law is advanced as a portraitof reality-rather than an
abstracted "ideal type." 52 This is perhaps the prime pitfall of
analytical jurisprudence. As Professor Harry Jones recently
denoted of law's dimensions:
" There are many mansionsin the house of jurisprudence,and
I would not belittle anyone's perspectiveon law in society,
providedonly that he does not insistthat his is the only perE. W. Patterson, Jurisprudence: Men and Ideas of the Law, pp. 537538 (1953); K. Llewellyn, "Some
Realism About Realism " (1931) 44
Harv.L.Rev.
1222, 1233-1235.
W. Jones, "Law
and Morality in the Perspective of Legal
50 See H.
Realism " (1961) 61 Colum.L.Rev. 799; see also E. Garlan, Legal Realism
and Justice (1941).
51 H. L. A. Hart, " Analytical Jurisprudence in Mid-Twentieth Century: A
953, 967.
Reply to Professor Bodenheimer " (1957) 105 U.Pa.L.Rev.
52 See Hart, The Concept of Law, p. 95 (1961). Here the accuracy of the model
is stressed, with its value as an analytical tool mentioned in a secondary
manner.
49 See

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Nov.

1972

HART'S

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OF LAW AND AMERICAN

REALISM

619

spectivethat gives a true or meaningfulview of ultimatelegal

reality. Law is an intricate and crucially important social
technology,and we must beware of the kind of dogmatic
monism,not unknownin legal philosophy,that attempts to
withina unitaryscheme
bringeveryaspect of law's functioning
or explanation. The phenomenonof law in societyis too complex to be compressedinto a single analyticalformula."63
No analyticalmodel can reflectthe constanterrorswhichoccur in
the administration
of a legal systemand whichare, or at least have
the forceof, law. Nor can it properlyportraythe dynamicnaturethe constantmovementand change-of a legal system. Neitheris
there room in the model for the " law group's " '54 institutional
practiceswhichare not providedforby declaredrule. Nor can such
a theory distinguish"paper rules" from rules in action. In
additionto these weaknessesinherentin any analyticalmodel,Hart
did not provide in his model to the extentpossible for the uncertaintyof law.55
its weaknesses,the model is one of the more
Notwithstanding
accurate analytical models of law yet offered. While not even
Hart's pen and perceptionare strongenough and accurate enough
to produce a true and exact model of law, this is not to say that
Hart's contributionis of less than major magnitude. A chart of
the moreeasily understoodmay be a usefulpreliminaryto exploration of the hazier frontiersof difficulty.But, if it is to be of use,
the Hart model must be recognisedfor what it is-a Weberian
"ideal type" with no counterpartin the world of reality. Only
with such awareness of its limitations,can the model become an
effective
implementin analysisof law.
The potential advantageous uses of Hart's model and theory
are many. To begin withthe studyof the model is in itselfa good
mental exercise,whichis justificationenoughin itselffor the constructionof the model. In addition,the model offerssome concrete
substance, particularlyto those not versed in the law, who, of
course, have vague but not preciselydelineated notions of what
" law " is about. Exposure to the model and its various segments,
forcesone to thinkabout many of thephases of the law in a much
moreprecisemannerthan before.
Hart's primarycontributionis not his model but the array of
analytical devices and methodshe uses in structuringhis model.
Some of these are his creations. Othershe adapts fromother disciplines,to use in his philosophyof law. His dichotomyof legal
rules between " primary" and " secondary" offersan attractive
frameworkforcategorisation. His hierarchyof rules, reignedover
by the " rule of recognition" suggestsinterestingpossibilitiesfor
study,particularlyof the inter-playbetweenvarious levels of legal
53 H. W. Jones, The Efficacyof Law, p. 5 (1969).
54 See K. Llewellyn, The Common Law Tradition, pp. 11-120 (1960).
55 See note 8 supra with accompanying text.

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620

THE

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VOL. 35

REVIEW

rules. His definitionalapproach, whichfocusesthe attentionof its

user on functionalrather than abstract meaning, has significant
implicationsfor futurelegal analysis.
If the Realist aim of comparingthe is, the law in action, with
the preliminaryought, the way the rules say cases should be
decided, is even to be approached, more than understandingof
empiricalresearchmethodologyis essential. One must be able to
perceive,at least, faintimages of the ought-to ascertainfromthe
"law on the books " directionsas to how legal preceptsshould be
applied. Such a perceptionof the oughtcannothelp but be aided by
analytical method, and it is in this task that the Hart model and
theory can be quite helpful. With it we can better pursue the
greateroughtand answerthe challengelaid down by Holmes:
"The remoterand more general aspects of the law are those
which give it universalinterest. It is throughthem that you
not only become a great master in your calling, but connect
yoursubjectwiththe universeand catch an echo of the infinite,
a glimpseof its unfathomableprocess, a hint of the universal
law."

56

Armed both with Hart's contributionsand Realist method, and

with a willingnessto proceed without definiteand authoritative
answersin an uncertainrealm of value judgment,man is about as
well prepared as possible to explore law and its effectswith real
hope forimprovement.
E.

56

HUNTER

TAYLOR,

JR.*

0. W. Holmes, " The Path of the Law " (1897), Collected Legal Papers,
pp. 167, 202.

* LL.B.

(Tulane),

LL.M. (Columbia);

School of Law. Camden.

Professor of Law,

Rutgers

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University