Union of Primary and Secondary Rules (Chapter 5) PDF

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Hart notes in easy language for better understanding....

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Law as the Union of Primary and Secondary Rules

This chapter is prefaced by a smack-down of Austin’s candy ass by pointing out how his theory has failed to reproduce some of the prominent features of a legal system: 1. Although a criminal statute most closely resembles orders backed by threats, it still differs from such orders in that it commonly applies to those who enact it and not merely to others. See the self-binding nature of laws and the distinction of legislators in their private and official capacities.

2. There are laws, notably those that confer legal powers, which cannot be construed as orders back by threats without some absurdity. See power conferring rules as fragments of rules imposing duties by Kelsen. 3. Customs, a form of legal rules, differ from orders back by threats in their mode of origin, because they are not brought into being by anything analogous to explicit prescription. See tacit orders. 4. The concept of a sovereign habitually obeyed and legally illimitable fails to account for the continuity of legislative authority, and the sovereign could not be equated with either the electorate or the legislature of a modern state. Hart posits that the main reason Austin’s theory of orders, obedience, habits and threats fails is that it does not contain rules. Without rules, Hart claims, laws cannot be explained. He divides rules into two types: primary rules and secondary rules. This is his theory of law. Primary rules require human beings to perform certain actions, or abstain from certain actions, whether they wish to or not. In other words, they impose duties and involve physical movement or changes. Secondary rules are connected or dependent upon primary. They are used to create or modify primary rules, as well as to control their application. They confer powers, private and public, and are used to create or modify duties and obligations. Hart believes that by combining these two rules, one can find the key to the science of jurisprudence. He admits that this combination does not provide definitions for all laws, but he says it does provide an answer for most. The Idea of Obligation The theory of coercive orders started with the perfectly correct appreciation of the fact that where there is law, human conduct is made in some sense non-optional or obligatory. Hart’s account of law starts from the same idea. He differentiates between a situation where a person is obliged to do something and one where he has an obligation to do it. The concept of obliged falls into Austin’s orders backed by threats theory. To say one had an obligation, on the other hand, falls into Hart’s theory and comes under rule following. Hart says that was obliged involves the beliefs or motives for which an action is done. The gunman theory is an example: when the clerk hands over his money, he does so because he believes he will be harmed if he does not comply. So, the statement

that a person was obliged to obey is a psychological one referring to the beliefs and motives with which an action is done. In the case of had an obligation, motives are irrelevant. Hart gives an example of someone reporting for military service. A person who is doing this will do so even if he did not want to and believed he would not be discovered and punished if he disobeyed. A person’s personal choices become irrelevant under Hart’s theory. Some theorists, Austin among them, seeing perhaps the general irrelevance of a person’s beliefs, fears and motives, have defined the notion of obligation in terms of the chance or likelihood of suffering a punishment in the event of disobedience. This treats obligation not as psychological aspect of compliance with laws, but as predictions of incurring punishment in the event of disobedience. In other words, people follow the law because it is a prediction of what will bring punishment from a court (Oliver Wendell Holmes). Hart argues that this theory is flawed as well. It ignores the internal aspect of rules, i.e. people obey laws because a failure to do so will attract criticism and the criticism will be justified; in other words, they accept rules as standards of conduct that ought to be obeyed. Furthermore, if we say that law is only obeyed due to fear of punishment, we cannot claim one had an obligation to obey the law. If the fear of punishment is removed, people will have no reason for continuing to obey the law. There will be no obligation. Hart admits that in a legal system the concept of ‘had an obligation’ and fear of sanction are connected. But there can be individual cases where the two work separately. Hart says that rules affect the idea of an obligation in two ways. 1. Rules allow a person to make a statement about obligation. 2. One can use rules to tell a person that he has an obligation under a rule. Hart also appears to return to the theme of internal aspect of rules. He repeats that what is important about rules is the concept of criticism by the public or people at large. He says this criticism or social pressure is the primary reason behind why people have an obligation to obey the law. He makes two more points about the characteristics of obligation. 1. The rules supported by this public criticism or pressure are considered to be essential for the maintenance of social life, e.g. rules against violence. 2. The concept of obligation makes us do things we do not want to do or not do things we want to do. Hence, self-sacrifice is involved. There is also a matter of the external and internal points of view. Hart says that the external observer merely records the behavior of those obeying the law. Therefore, the external observer cannot understand why the internal observers obey rules, only that they do. He misses one very important fact. Rules are not simply around to predict social behavior. They are there to guide and control it. Hart uses the example of a traffic signal turning red to explain this. When an external observer sees a traffic light turn red, he treats it as a sign that traffic will stop. What the observer does

not realize is that the red light is actually the reason people stop. The red light is guiding and controlling the actions of road users; it is a signal for them to stop, not a signal that they will stop. In other words, for the majority of society the violation of a rule is not merely a basis for the prediction that a hostile reaction will follow but a reason for hostility. In any given society there will be tension between those who see the rules from the external point of view as a sign of possible punishment and attend to them only so that they may avoid that punishment, and those who accept and voluntarily co-operate in maintaining the rules, and so see their own and other persons’ behavior in terms of the rules. Hart concludes this section by saying that any legal theory must contain both the external and internal points of view. It may be said of the predictive theory that it disregards the internal aspect entirely. The Elements of Law Imagine a society where the only means of social control is the general attitude of the group towards its own standard modes of behavior in terms of which we have characterized rules of obligation. We shall refer to such a social structure as one of primary rules of obligation. It is plain that only a small community closely knit by ties of kinship, common sentiment could live successfully by such a regime of unofficial rules. Rules by which the group lives will not form a system, but will simply be a set of separate standards which the group accepts. In this respect, they resemble our own rules of etiquette. Hence, if doubt arises as to what the rules are or their scope, there will be no procedure for settling the doubt, either by reference to an authoritative text or to an official whose declarations are authoritative on this point. Clearly, such recognition of an authoritative text or person requires the prior existence of rules that are different from rules of obligation and duty, which are the only types of rules the group has. This defect in a social structure formed only of primary rules may be called its uncertainty. A second defect is the static character of rules. There will be no means of deliberately adapting the rules to changing circumstances, either by eliminating old rules or by introducing new ones: for, once again, the possibility of doing so presupposes the existence of rules of a different type from the primary rules by which alone the society lives. Each individual would simple have fixed obligations or duties. The third defect is the inefficiency of the social pressure by which these rules are maintained. Disputes as to whether an admitted rules has or has not been violated will always occur and will if there is no agency specially empowered to ascertain the fact of violation. The waste of time involved in the group’s unorganized efforts to catch and punish offenders would be vastly inefficient. The remedy these defects depends on supplementing primary rules of obligation with secondary rules; they specify the ways in which the primary rules may be conclusively ascertained, introduced, eliminated, varied and the fact of their violation conclusively determined. The remedies possess many elements that permeate law and are capable of converting the regime of primary rules into what is indisputably a legal system; therefore, introduction of these remedies may be considered a shift from the pre-legal into the legal world. The remedies to these defects involve the application of secondary rules. These are as follows:

The defect of uncertainty may be remedied through the rule of recognition. Hart believes that in the early law of many societies it be no more than an authoritative list or text of the rules in a permanent form. What is crucial is that the rule of recognition (written in the text) be acknowledged as the proper way of deciding the existence of a rule. In a more developed system the rule of recognition will obviously be more complex. Rules will be identified through reference to a common characteristic of primary rules i.e. we will know a primary rule is valid because it was created by a legislature. The rule of recognition also brings order to primary rules since it helps in arranging them in order of superiority, e.g. customs are inferior to statutes. By creating a standard or an ‘authoritative mark’, as Hart says, against which to judge rules, the rules in a legal system will now be unified. The remedy for the static quality of primary rules consists of introducing rules of change. Besides empowering an individual or a body to introduce new primary rules or eliminate old ones, such rules can also limit the power of legislation by specifying procedures to be followed. Plainly, the rules of change and that of recognition are closely connected. If rules of change exist, the rule of recognition will refer to them as identifiers of rules. Hart has also said that rules of change share a kinship with power-conferring rules such as making a will or a contract, in that it is an exercise of limited legislative powers by individuals. The defect of inefficiency may be remedied by supplementing the regime of primary rules with rules of adjudication. Besides empowering individuals to make authoritative determinations as to whether a primary rule has been broken, such rules will also define the procedure to be followed. They do not impose duties but confer judicial powers. Furthermore, rules of adjudication have an intimate connection with other secondary rules of such kind: a system which has rules of adjudication is also committed to a rule of recognition of an elementary sort. This is so because, if courts are empowered to make authoritative determinations on whether a rule has been broken, these will be taken as authoritative determinations of what rules are. Therefore, the rule which confer jurisdiction will also be a rule of recognition. Conclusion Hart believes that the combination of primary and secondary rules is the heart of the legal system. This combination also serves as a powerful tool for analyzing the problems faced by a jurist. Hart illustrates this by reference to the internal point of view. In the case of primary rules, the internal point of view is in its simplest form, i.e. justified criticism by those who obey the law. In the case of secondary rules, however, the internal point of view is further extended. This is because the added concepts of legislation and jurisdiction require the internal point of view to be truly understood. Hart concludes the chapter with a warning: while the combination of primary and secondary rules can explain many aspects of law, it cannot solve every problem. “The union of primary and secondary rules is at the center of a legal system, but it is not the whole.”...