H.L.A. Hart's Indian Reception

H.L.A. Hart did not write The Concept of Law for India. He wrote it for the post-war seminar room at Oxford, with John Austin on his left and the American legal realists on his right, and a quiet conviction that English-language jurisprudence had been having the wrong arguments for a hundred years. The book appeared in 1961. By the early 1970s it had become a fixture of the LL.B. reading list in every reputable Indian law faculty, displacing Austin's Lectures as the standard introduction to what legal theory was supposed to look like. None of this was planned. None of it was inevitable. What is interesting is what travelled, what did not, and what got reshaped along the way.

Why Hart, and why now

To understand why Hart took root in Indian classrooms when he did, you have to understand what he was offered against. The reigning jurisprudence in India in 1950 was a version of John Austin's command theory, transmitted through colonial textbooks and reinforced by a generation of judges trained in British black-letter tradition. Law was the command of the sovereign, backed by sanctions. The sovereign was the legislature. The judiciary applied. Cases like A.K. Gopalan — Kania CJ reading 'procedure established by law' to mean nothing more than the procedure prescribed by the statute on the books³ — were not merely textualist. They were Austinian. They presupposed that legal validity flowed from the legislature's authorised act, and that the Court's job was to identify the act and stop there.

This was always going to be a difficult inheritance. The Indian Constitution itself does not behave the way an Austinian theory wants a legal system to behave. It limits Parliament. It creates fundamental rights that purport to bind Parliament. It assigns to courts a duty to test legislation against those rights. The sovereign was supposed to be habitually obeyed and necessarily exempt from all legal limitations. The framers of 1950 had created a sovereign that was, on its own terms, legally limited. The theory and the document were not built for each other.

Hart's Concept of Law¹ gave Indian jurists a way out of this without making them abandon analytical jurisprudence. He kept the project of trying to say what law is, in clear language, without metaphysical detour. But he replaced the gunman-writ-large with a more complicated picture — primary rules of obligation, secondary rules of recognition, change, and adjudication, and the internal point of view that distinguished a society living by rules from a society merely conforming to threats. The architecture was congenial to the post-Independence Indian jurist in a way Austin was not. It allowed her to say, in jurisprudentially respectable terms, that the Constitution is law because the legal community accepts it, not because some prior sovereign commanded it. It allowed her to say that judges and officials read the document from the inside, as a guide and a justification, not merely from the outside, as a prediction of force.

The travelling parts and the non-travelling parts

Not all of Hart made it. The part that travelled best — and is still cited in Indian writing on legal theory — is the distinction between primary and secondary rules. It is hard, in 2026, to find an Indian textbook on jurisprudence that does not work through Chapter V of The Concept of Law at some length. The reason is partly pedagogical: the distinction is unusually clean, it maps onto familiar features of Indian law (the Penal Code as the bulk of the primary rules, the Constitution as a complex secondary-rule machine), and it has the rare virtue of explanatory power without ideological commitment. You can be a textualist or a structuralist and still find Hart's framework useful as a description.

The internal point of view also travelled, though more quietly. Hart's contention that you cannot describe a legal system without describing the way in which officials and citizens accept its rules from the inside — that the external observer's account, however accurate as a record of regularities, will miss the dimension that makes the rules into rules — is the part of Hart that Indian writing finds it easy to lose. The reason is that Indian legal scholarship has tended to focus on what courts decide rather than on how officials and citizens orient themselves to legal rules. The result is a literature that imports the language of acceptance and obligation but does not always work out the social-fact underpinning Hart was committed to.

The part that emphatically did not travel is the rule of recognition. I have written elsewhere about why Hart's rule of recognition does not behave the way it should in the Indian system, and I will not repeat that argument here. The shorter point is this: a Hartian rule of recognition is supposed to be the unstated, accepted, and reasonably stable convergent practice by which officials identify what counts as law. In a system where the Court has been the standing architect of constitutional doctrine for fifty years — adding to it, subtracting from it, declaring entire amendments void as offending an 'essential feature' the Court itself defines — the rule of recognition is not stable, not convergent, and not in any useful sense unstated. It is in active judicial production. That is not Hart's picture. It is closer to a doctrine of judicial supremacy with the rhetoric of acceptance papered over the top.

Hart, Indian commentators, and the question of fit

The Indian jurists who write about Hart fall, broadly, into three camps. The first is the comparative-analytical camp, which uses Hart as a benchmark for what an Indian theory of law would have to do to count as serious — what would need to be in place, what would need to be explained, what would need to be ruled out. S.N. Dhyani's work on Indian legal theory⁵ sits here. Dhyani, citing Setalvad's Law and Culture, explicitly describes Dharmashastric law in terms close to Hart's — 'not on a general habit of obedience to determinate persons but on a general acceptance of constituent rules, simple or complex, defining the manner in which the ordinary rules of the system are to be identified.' That is, almost word for word, Hart's account of a developed legal system. It is a remarkable passage, because it is doing two things at once: it is reading the Indian tradition through Hart, and it is reading Hart through a tradition that predates him by several thousand years. Whether the latter is sustainable as an interpretation of the Dharmashastras is a separate question. What is undeniable is the directness with which Indian theory has reached for Hart's analytical vocabulary to do its descriptive work.

The second camp is the one I would call constitutional-doctrinal: those who use Hart to make sense of what the Indian Supreme Court does, rather than to evaluate it. Chintan Chandrachud's analysis of the Court's interpretive phases — textualism, then structure-dominated eclecticism, then what he calls 'panchayati eclecticism' — is in a Hartian register even when it does not name Hart. The shift from Gopalan to Kesavananda² to Maneka Gandhi⁴ is, on this reading, a shift in the Court's relation to the constitutional text — from treating the words as the sovereign's plain command to treating them as constituents of an internally coherent structure that the Court is competent to interpret in the light of its own developing practice. That is a Hartian story whether the chapter calls it that or not. The 'internal point of view' is doing the heavy lifting: judges are not merely predicting whether the legislature has authorised an act; they are using the rules as standards by which to judge the act.

The third camp is the dissenting one — Indian writers, often working from a postcolonial or indigenous-jurisprudence direction, who think Hart is a poor fit for India because his framework was developed against the background of a particular history of British and continental constitutionalism that India does not share. Some of this is defensible. Hart's examples are largely English. His treatment of customary law is thin. His implicit assumption that a developed legal system runs on a single, more or less unified rule of recognition fits a unitary state with an effective parliamentary supremacy better than it fits a federal constitutional democracy with overlapping legal orders and a constitutional document at the apex. Dhyani's argument that contemporary Indian jurists 'have to evolve an integrative legal theory which should not be merely a carbon copy of English jurisprudence' is, in this sense, a methodological caution rather than a wholesale rejection. The work of evolving such a theory has not, by 2026, been done.

The internal point of view in Indian constitutional reasoning

What I find most interesting in Hart's Indian reception is what the Court has done with the internal point of view without ever using the phrase. Maneka Gandhi is the cleanest example. The case overruled Gopalan's reading of 'procedure established by law' as meaning any procedure prescribed by statute and held instead that the procedure had to be 'fair, just and reasonable.' Read as a Hartian, what the Court did in Maneka was to shift its own relation to Article 21 from the external to the internal point of view. Under Gopalan, Article 21 was a sign that the legislature had spoken; if it had spoken, the procedure was law. Under Maneka, Article 21 was a rule that the Court itself accepted and used as a standard, and the question was whether the legislative procedure satisfied the standard. The Court was no longer merely identifying the law; it was applying it from the inside.

Once you see the move this way, you see it everywhere. The basic-structure doctrine that emerged from Kesavananda Bharati is, in Hartian terms, a claim about the rule of recognition: the Court is saying that not every text that meets the formal criteria of a constitutional amendment counts as constitutional law, because the system's rule of recognition includes an unwritten substantive component about what an amendment can and cannot do. That is a remarkable claim about what officials, in their convergent practice, accept as legally binding. The second and third judges cases⁶ did the same with the word 'consultation' in Articles 124 and 217 — read structurally rather than literally, the word was held to require concurrence, and on that reading the collegium system was built. None of this is the explicit operation of a Hartian rule of recognition. But none of it makes sense without the apparatus Hart gave us for thinking about legal systems.

This is where the question of fit becomes interesting. If the Court is, in effect, running its own rule of recognition — adjusting it, extending it, sometimes contradicting earlier versions of it — then Hart's picture of a stable, unstated, convergent practice cannot do all the work an Indian theory of law would need. Hart is descriptive of what a settled legal system looks like. Indian constitutional law is not settled in the relevant sense. It is in active interpretive production, with an apex court that has both the institutional power and the institutional culture to revisit the most basic features of the system every few years. A theory of law for India needs more than Hart gave us. It also needs less Hart than India sometimes claims to have absorbed.

What the reception tells us about the discipline

A discipline reveals itself in what it imports. The fact that Indian jurisprudence imported the primary-secondary distinction wholesale, was lukewarm about the internal point of view, and effectively rejected the rule of recognition, tells us something about what Indian jurists were looking for in 1970 and what they were willing to let pass. They wanted an analytical framework that could replace the Austinian command theory without committing them to any specific account of the source of constitutional authority. Hart gave them that. He gave them a way to describe primary rules and secondary rules, to talk about powers as well as duties, to make room for the constitutional document without insisting on a sovereign behind it. What he did not give them — and what they did not in fact ask for — was a sociology of the legal community sufficient to ground the rule of recognition as anything other than a stipulated abstraction.

This pattern is not unique to Hart. Indian legal scholarship has generally been better at importing analytical apparatus than at importing the social-fact commitments that the apparatus presupposes. Ronald Dworkin's work on principles travelled here without his moral realism. John Rawls travelled without his particular American liberalism. The pattern is consistent: take the conceptual machinery, discard the deeper philosophical commitments. Hart's reception was the first major instance of this and remains, in some ways, the cleanest. It is also the most consequential, because Hart's framework has shaped how three generations of Indian lawyers think about what a legal system is — even when they cannot quote a paragraph of The Concept of Law from memory.

There is a second feature of the reception worth pausing over. Hart was read in India alongside the Bentham-Austin tradition rather than as a break from it. Indian textbooks tend to present command theory and the concept of law as two stages of the same conversation, with Hart correcting Austin rather than displacing the entire project. That presentation is not exactly wrong, but it underplays the depth of Hart's departure. Hart did not just improve the model of legal obligation. He moved the model from a sociology of force to a sociology of acceptance. That move requires the reader to think about law in a fundamentally different register, and the Indian textbook tradition has not always made the demand. The result is a generation of Indian lawyers who can quote the primary-secondary distinction but who, when pressed on what makes a constitutional rule binding, fall back on something closer to a Kelsenian grundnorm or an Austinian sovereign — the very positions Hart wrote his book to retire.

The reception also tells us about the gap between academic jurisprudence and judicial reasoning. Indian judges do not write opinions that cite Hart. They cite cases, they cite the Constitution, they cite the occasional foreign court. What Hart gave them was not a vocabulary they could deploy in a paragraph of a judgment but a posture they could adopt without naming. That posture — read the rules from the inside, treat them as standards rather than as commands, take seriously the convergent practice of officials — has more presence in Indian constitutional reasoning than the citation count of The Concept of Law would suggest. It is a Hartian influence that travels by osmosis rather than by quotation. Whether that counts as a real reception or merely as an accidental convergence is a question I would not press too hard either way. The reception is what we have.

Where Hart's framework still does work in India

It is easy to be sceptical about the rule of recognition's fit and to lose sight of where Hart's framework continues to do useful work in Indian legal thought. Three places stand out.

The first is teaching. A student who reads Hart's distinction between primary and secondary rules has acquired a tool that survives nearly every doctrinal question she will face in the rest of her career. The distinction sorts contract from criminal law, sorts the body of statutory law from the rule-making procedures in Article 368, sorts what is owed from how what is owed is determined. There is no better starting point. The reason Hart displaced Austin in Indian classrooms was not academic fashion. It was that the distinction worked.

The second is institutional analysis. Hart's account of the three secondary rules — of recognition, change, and adjudication — is a useful way to understand why a constitutional system that thins out any one of them runs into trouble. ADM Jabalpur⁷ can be read, in Hartian terms, as a moment at which the rule of adjudication was effectively suspended, leaving the rule of recognition in the hands of the executive alone. The 42nd Amendment can be read as an attempt to rewrite the rule of change so as to defeat the rule of recognition that Kesavananda had announced. The collegium can be read as a re-engineering of the rule of adjudication itself. Indian constitutional law is full of episodes where one secondary-rule mechanism is being used against another, and Hart's framework helps us see the structure of those fights.

The third is the internal point of view as a diagnostic. When a court in India treats a fundamental right as a rule it accepts and uses to assess legislation, it is operating from the internal point of view. When it treats a fundamental right as merely a sign that the legislature is constrained, and confines its inquiry to whether the constraint was respected as a matter of bare procedure, it is operating from an externalised point of view that is closer to Austin than to Hart. The shift between these postures is the entire story of Article 21 from Gopalan to Puttaswamy. A court that knows which posture it is taking, and why, is a more honest court. Hart's apparatus, properly used, gives Indian judges and commentators a vocabulary in which to ask that question.

What remains undone

What India has not done with Hart is to push the analysis through. The Indian academy borrowed the framework and stopped. It did not produce an Indian Hart — a jurist who would take the same care to describe the rule of recognition of the Indian legal system as Hart took to describe the British. It did not produce, after Dhyani, a sustained body of work tracing the convergent practices by which Indian officials and citizens identify the law of the system from the inside. Most of the work to which Hart's framework is best suited remains undone in India. The framework sits in textbooks; the descriptive sociology that should accompany it does not.

The reasons are several and worth naming. Indian legal academia has been small relative to the size of the legal profession, under-resourced, and structured around case-law commentary rather than around description of the legal system as a social fact. The empirical work that Hart's framework presupposes — looking at how officials actually identify law, looking at the convergent practice of registrars and revenue officers and tahsildars as well as of judges — is harder to do than the doctrinal commentary that fills the law reviews. It is also less professionally rewarded. The result is a literature that knows Hart well but does not do Hart's kind of work.

There is also a deeper reluctance. To take the rule of recognition seriously is to acknowledge that what counts as law in India is, in the end, a fact about a community's practice rather than a fact about a text. That acknowledgment cuts against the legal-positivist instinct of treating the constitutional document as self-authorising. It also cuts against the populist instinct of treating the Constitution as the people's command. Hart's framework, properly applied, is neither textualist nor majoritarian; it is sociological. Indian jurisprudence has not yet been willing to be sociological in this way. The reasons are partly political and partly disciplinary, but the result is the same: the most useful part of Hart's framework remains the part Indian legal theory does not put to work.

This is not Hart's fault. He wrote what he could write, from where he sat, with the materials he had. The fault, if there is one, lies with a discipline that imported the tool but never quite used it on the system the tool was supposed to help describe. The Concept of Law travelled to India better than anyone in 1961 had any reason to expect. The book that India has not yet written about Indian law, in the spirit Hart wrote about English law, is the book that the next generation of Indian jurists should be writing.

That is a specific recommendation, not a general lament. A serious Hartian description of the Indian legal system would have to do three things. It would have to identify, with sociological seriousness, the actual rule of recognition by which Indian officials identify law — not the stipulated one in textbooks, but the working one in court registries and ministry circulars. It would have to map the rules of change, particularly the contested ones around Article 368 and the basic-structure doctrine. And it would have to take the rules of adjudication seriously enough to describe what the Supreme Court has become — not as the framers imagined it, but as the system actually operates it. None of this is a programme for a single book. It is a programme for a generation of work. Hart's Indian reception was the easy part. The Indian Hart is the part we are still owed.

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