The discussion in this post is one related to Chapter 5 of the Concept of Law.
Chapter 5 of The Concept of Law is called: “Law as the Union of Primary and Secondary Rules”
Here Hart is asserting that the key to the science of Jurisprudence is in the combination of these two rules, namely both primary and secondary rules. Before embarking upon further discussion on this chapter, it is important to see what these two types of rules are:
Hart begins chapter 5 by again asserting the reasons for failure of Austin’s “Command Theory of Law”. In chapters 2- 4 of The Concept of Law, Hart asserts his arguments against another legal positivist namely Austin and claims that it lacks certain elements that a theory of law should comprise, if it is to be sustainable in the contemporary society. Since Hart began Chp 5 with the reasons for failure of Austin’s theory, this post will first highlight those and then move to the main discussion on this chapter. It is important to understand that if a question in the examination comes on this chapter, first please discuss the summary of failures of Austin’s theory as laid down by Hart and these are:
SUMMARY OF FAILURE OF AUSTIN’S THEORY
Hart asserts that the main ways in which the theory failed are the following:
- Austin’s theory failed to reproduce some of the salient features of a legal system- which means that it is an incomplete model of law
- Austin’s theory is distorted or altogether unrepresented as it is overtly simplistic
- Criminal law and the Law of Tort is what the “Orders Backed by Threats” theory (OBT theory) most resembles
- There are other varieties of law, example those conferring legal powers to adjudicate or legislate (public powers) or to create or vary legal relations (private powers) – and all of this cannot be classified as an OBT
- There are legal rules which differ from orders in their mode of origin
- Analysis of law in terms of the sovereign, habitually obeyed and necessarily exempt from all legal limitation- fails to account for the continuity of legislative authority which is the characteristic of a modern legal system. And the sovereign person/persons could not be identified with either the electorate or the legislature of a modern state
A FRESH START
Hart further states that:
- The last three chapters of The Concept of Law ( Chps 2-4) are the record of a failure and there has to be a fresh start
- The root cause of failure is that the elements out of which the theory was constructed i.e. the ideas off orders, obedience, habits and threats, do not include, and cannot by their combination yield, the idea of a rule – without which we cannot hope to elucidate even the most elementary forms of law
- The idea of a rule is not a simple one- to do justice to the complexity of a legal system, there has to be discrimination between two different though related types of law i.e. Primary and Secondary rules
- Austin wrongly claimed to have found the key to the science of Jurisprudence in the notion of coercive orders only
- Most of the features of law will be clear if these two types (i.e. both primary and secondary rules) of rules and the interplay between them are understood
- That we must learn from the errors of Austin’s theory- instead of the gunman situation writ large, we need something else for an understanding of the idea of an obligation; as there is a difference between the assertion that someone was obliged to do something and the assertion that he had an obligation to do it
- In the Preface, Hart asserts that neither law, nor any other form of social structure can be understood without an appreciation of certain crucial distinctions between two different kinds of statements – ‘internal’ and ‘external’. Both are made whenever social rules are observed. For Hart, it is essential that officials of a legal system take an internal point of view towards rules, that is – ‘internalize’ them rather than taking an external view of them as Austin’s theory does. In The Concept of Law, the internal and external points of view are explained thus:
SHAPIRO’S ANALYSIS ON PRIMARY AND SECONDARY RULES
Shapiro says that:
- One of the principal lessons of The Concept of Law is that legal systems are not only comprised of rules, but founded on them as well (thereby emphasizing the importance of rules within a legal system)
- Drawing a comparison between Hart and his predecessors- it can be said that where Bentham and Austin insisted that ‘The Sovereign makes all of the rules’; Hart argued instead that ‘the rules make the sovereign’
- Hart showed that law at the bottom is regulated by what he called the secondary rules of recognition, change and adjudication.
- Lloyd says that according to Hart, these secondary rules, are of three types:
- After laying down a summary of the deficiencies of Austin’s simple model of a legal system, Hart highlights the importance of the existence of a legal system
- If a society might just consist of primary rules with no secondary rules, it may suffer from the following defects: uncertainty, static character and inefficiency
- Thus Hart considered a community which does not have a legal system and then invites the reader to ponder the various social problems that would arise in that group and how the introduction of certain rules (secondary rules) would resolve those difficulties
- Hart substantiates this by giving the example of a pre-law society where Hart supposed that all rules of this society are customary ones. Now customary rules are those which evolve from practice, but they come with a certain amount of uncertainty and lack of speed in the development of new law. In other words, a rule exists within such a group if, but only if it is accepted and practiced by most of its members
- Hart by giving an example of a primitive, pre-law society is trying to make us understand what Austin’s system of ONLY primary rules would look like. His aim is to elucidate the importance of secondary rules with work alongside primary rules of obligation. [About this, Lloyd says that, that there are “primitive” forms of human social community where a common set of primary standards is observed but where power conferring secondary rules have not developed. Thus Hart attempts to show how shortcomings suffered by such a pre-legal community are cured by the development of secondary power conferring rules. Lloyd says that because of the absence of these rules there is also missing in pre-legal societies concepts such as “power”, “official”, “legislature” which members of a modern state take for granted]
- Thus Hart then considered what would happen should some doubt or disagreement arises within the group about proper behavior, for instance, Imagine that some members believe that a person should be able to take two mates, whereas others think that the limit should be one
- Now since the only property that the customary rules share is their acceptance by the group, there will be no other common mark to which the members can point in order to resolve their controversy e.g. an inscription in some authoritative text, declaration by some official etc.
This is Shapiro’s analysis on the problems of a system that just comprises of primary rules. The three problems are:
1. Uncertainty: Hart says that this uncertainty would be unproblematic in a small group united by bonds of kinship. However as groups expand and become more heterogeneous (meaning comprised of diverse elements), uncertainty will likely proliferate (increase rapidly in number or grow or reproduce) and these techniques will become more costly or less effective. And given that the need for dispute resolution is bound to be great within such a group the insecurity engendered by these doubts and disagreements will be distressing, perhaps even crippling.
2. Static character: Hart says that uncertainty is not the only problem facing such groups: customary rules also possess a “static character” that renders them defective tools for regulating all but the smallest human communities. Suppose there is a sudden need for the group to act in a certain way e.g. to increase the amount of grain that each family contributes to communal storage as a result of drought. The simplest and quickest response would be for some members of the group to deliberately change the rules, e.g. to amend the tithing rules. However, in a group governed solely by custom, this option is unavailable. There rules cannot be changed at will : as customary rules vary only through a slow process of growth and decay. The urgent need of the group to respond to the drought therefore, will go unmet.
3. Inefficiency: Finally Hart considered the “inefficiencies” associated with this simple regime of customary rules. Suppose there is a clear rule about how land is to be acquired. It is an accepted custom, say that the first person to state his claim is the rightful owner. Now the question arises, what happens though when there is a factual disagreement about who is the first claimant? Since the regime contains no mechanism for determining the satisfaction or violation of any of the rules, the attempt to settle who actually stated the claim first will likely be costly and would even turn ugly.
This is Shapiro’s analysis on the cures of a system that couples secondary rules with the primary rules of obligation. Hart suggested that the fundamental rules of legal systems solve the various defects of pre-legal customary societies. There are three cures:
1. Cure for Uncertainty is the Rule of Recognition: Legal systems provide a rule which determines which rules are binding. By referring to this rule about rules- what Hart termed as “rules of recognition” – questions can be resolved without engaging in deliberation, negotiation and persuasion. If there is a doubt, say, how many mates are acceptable, the rule of recognition can direct the parties to the authoritative list of rules on the rules on the rock in the town square, the past pronouncements of the village elder, the practice of other villages and so on, to determine the answer.
Further analysis on Hart’s cure by another academic: This rule of recognition will specify some feature or features, possession of which will count as conclusive evidence that the rule is a rule of the group that should be supported by kind of social pressure that was described earlier, i.e., the kind of pressure that gives rise to obligations. In some cases, the rule of recognition might simply be an authoritative list. Historically, this passage from the pre-legal to the legal might be seen in the movement from unwritten rules to written rules. But more crucial is the fact that the written rules be view as authoritative. In a modern or more complex social system, the rule of recognition functions by identifying a general characteristic that is possessed by all of the primary rules. For example, this may involve pointing out that they were all enacted by a legislature, or that they have long been a customary practice of the group, or by their relation to a judicial decision. And, since there may be more than one identifying characteristic, the rule of recognition must specify which will be superior if there are conflicting results. So, for example, in the U.S., statutes trump customary or common law rules. The rule of recognition brings with it the notion of a system. That is, those rules and only those rules that are validated by the rule of recognition are rules of the legal system. This not only accounts for the unity of the system, it allows us to capture what makes a rule the rule for one country rather than another. This also supports the notion of legal validity.
2. Cure for Static Character is Rule of Change: The static character of customary norms is overcome by what Hart called a “rule of change”. A rule of change confers power on a person or institution to create, modify or extinguish rules and may also specify the procedures to be used in exercising the power. Since the rule of change empowers certain persons or bodies to amend the rules, behavior may be shifted in the desired direction through the exercise of legal authority.
Further analysis on Hart’s cure by another academic: In its simplest form, the rule of change empowers an individual or a group to introduce a new primary rule or to extinguish an old primary rule. This is the ordinary rule that empowers a legislature to do what it does. The powers granted by the rule of change can be limited or unlimited. They can specify who can make such changes and they can specify the procedures that must be followed. The rule of recognition will have to be linked to the rule of change in such a way that the new legislations are recognized as laws of the system and that those rules that are eliminated by legislative action are no longer recognized as rules of the system. Hart also points out that the legal system will also recognize private power-conferring rules that enable the changes that are made by wills, contracts, and transfers of property and other voluntarily created structures of rights and duties (that resemble promises).
3. Cure for Inefficiency is Rule of Adjudication: Finally the problem of inefficiency is solved by what Hart called a “rule of adjudication”. This rule confers the power on certain bodies to apply the rules – i.e. to determine whether a rule has been satisfied or violated on a particular occasion, and specifies the method to be followed in adjudication. For instance- in the example of acquiring land – the body identified as the authoritative adjudicator would have the power to determine which person first claimed land and hence who is the rightful owner of the property.
Further analysis on Hart’s cure by another academic: The rule of adjudication empowers individuals to make authoritative determinations about whether a primary rule has been violated. In addition to defining who will make the determination, the rule of adjudication will specify the procedure that is to be followed in doing so. The rule of adjudication confers judicial powers and confers special status upon judicial determinations. The rule of adjudication creates and supports notions like: judge, court, jurisdiction, and judgment. The function of adjudication will rely on the rule of recognition because any determination of whether a rule has been broken requires that the court first decide which rules exist. Therefore, the rule that confers jurisdiction will also be a rule of recognition. These judgments will then also be another source of law. [Hart is here building in the possibility that judges can introduce new rules that were not explicitly in the text of the constitution. He is building into his theory the ability to account for the fact that judges interpret the constitution, or statutes, or precedents in different ways.] Hart goes on to point out that in developed systems, the rules of adjudication specify that judges and other officials have the EXCLUSIVE power to direct the application of punishments. This is what precludes violent self-help and vigilantism. It also interferes with the cycle of violence that fuels feuds.
Hart believes that his theory—which consists of the set of primary rules of obligation, supplemented by secondary rules of recognition, change and adjudication—will provide a powerful tool for helping to explain what puzzles legal philosophers, judges and political theorists. He claims that his theory will shed clear light on legal notions like: obligation, rights, validity, source of law, legislation, jurisdiction, and sanction. It will also shed clear light on political notions like: the state, authority, and official. He believes that his theory has such extraordinary explanatory power because it takes into account the internal point of view. The internal point of view is used in a minimal manner when we focus only on primary rules of obligation. Its full power emerges when we see how the internal point of view functions with secondary rules. Hart again warns us that there is a constant pull to attempt to explain these things from the external point of view in terms of predictions. But he insists, that much is lost or obscured if one takes that approach. Finally, he warns us that the union of primary and secondary rules is the center of a legal system—it is not the whole story. Additional elements will be added in later chapters. Stay tuned!
Examination Question (Section A question):
1. It was in the ‘union of primary and secondary rules’ that Hart thought he found the ‘key’ to Jurisprudence. Does the ‘union of primary and secondary rules‘help us to understand law?