Since Hart is himself a positivist...

Since Hart is himself a positivist, it might look as if by introducing normative elements into his determination of the ontological status of laws he concedes too much to natural law theory. After all, for Hart as for natural law theorists, whether a given entity is or is not law depends on normative factors.

He insists, however, that he has carved out an intermediate theoretical space between natural law and traditional positivism, which he calls “soft positivism”.[^5] Hart’s strategy - though he does not himself admit it - is to distinguish between two types of normativity.

On the one hand is the robust normativity of the natural law theorist, illustrated for example by the Ten Commandments On the other hand is Hart’s own brand of normativity - what we might call soft normativity - which is what is necessary, in his view, for the existence of laws. Soft normativity is the sort of normativity that flows logically from the very nature of secondary rules.

Secondary rules create institutions, and these institutions in turn create the very possibility of certain sorts of acts. Hart himself appeals to the example of games in order to illustrate this point.[^6] A group of people can play football without requiring the presence of a referee of any sort. But when a referee is present and disputes arise, then the referee will have the last word in resolving such disputes.

His appointment is however possible only insofar as the players accept the secondary rules that make the institution of refereeing possible. That the referee has the last word is part of the content of the corresponding secondary rule, and it is this same rule which gives rise to the normative component in the referee’s decisions.

When a referee declares “penalty kick”, for example, he is not merely providing an indication of what is likely to happen next (any more than a traffic light is providing an indication of likely traffic flows). Rather, his declaration is the very reason which explains what happens next, because it explains what ought to be done. But there is a problem with Hart’s approach.

The sense of ‘ought’ as expressing soft normativity, the sense of ought that is involved in rules of games like chess or football, is radically different from the sense of ought that is involved, for example, when someone says that we ought to treat other human beings with respect, or that we ought not to gratuitously harm them.