THE CONCEPT OF LAW

Hart, H.L.A.
(Andr Jan L. Cardeo)
Chapter V: Law as the Union of Primary and Secondary Rules

In Secondary (or Parasitic to the First) Rules, men may introduce new
rules, extinguish, modify, or determine the control of old rules, by
doing or saying certain things. This type of rules provide for the
creation or variation of duties or obligations (not just physical
movement or change).

1. A Fresh Start

It is the union of Primary and Secondary Rules that is the key to the science of
jurisprudence.

(Note: Hart basically criticizes Austins theory that law is command backed by
threat and is meant to be ubiquitous in its application.)

2. The Idea of Obligation

->The simple model of law as the sovereigns coercive orders failed to

reproduce some of the salient features of a legal system, herein summarized:

(Note: Hart basically discusses about the difference on the assertion that
someone was obliged and that someone had an obligation to do it.)

First, Austins theory is more applicable as criminal law (and not to all
forms of laws) and this type of law also affects the ones who enact it
(not just on the people being given the commands backed by threats).

->Austins flawed theory started from the correct appreciation of the fact that
Law makes human conduct obligatory and non-optional. But being obliged
and being under an obligation are inherently two different things.

Second, there are other types of laws such as public (conferring legal
powers to adjudicate or legislate) or private (creating legal relations).

An example is used: Gunman A orders person B to hand him money

with the threat of shooting him if he does not comply. If Austins theory
is applied, then Gunman A is the sovereign giving the order (backed
by threat) and that B was obliged. Therein lies the flaw in Austins
theory, since B was obliged to hand over money for fear of harm, but
he was not under any obligation (duty) to give the money.

Third, some legal rules differ in their mode of origin (they do not come
from explicit prescription) such as custom, laws of God, etc.
Fourth, Austins theory fails to consider, in terms of the habitually
obeyed sovereign, both the continuity of law and persistence of law,
and the sovereign cannot be identified with either the electorate or the
legislature of a modern state.
->The use of ancillary devices to support Austins theory also failed as they
cannot be applied to modern legal systems:
One device is the notion of tacit order, likened to a general
deliberately not interfering with the orders given by his subordinates.
Another device is the notion of power-conferring rules as mere
fragments of rules being restricted to directions applied to officials.
This does not take into account the peoples perspective.
->All these arguments to support Austins theory failed because they do not
take into account the idea of two different but related types of rules and the
interplay between them:
In Primary (Basic type) Rules, men are required to do or abstain from
certain actions whether they want to or not. This type of rules impose
duties and concern physical movement or changes.

Being obliged normally carries the implication that the act was done, while
being under an obligation is rather independent on whether the act was done
or not.
Being obliged (forced to do something) is a psychological state dependent on
external circumstances, while having an obligation (being under a duty) does
not require some psychological conditions / standards of rightness or
wrongness, beliefs, or motives. The obligation (duty definition) is not
dependent on facts for its validity, or that facts cannot distort its validity.
->Some theorists like Austin disregard the aspect of beliefs / fears / motives of
the person (subjective and varying situations) and rather focus on statements
of obligation as the chance or likelihood for a person to suffer punishment or
evil in the hands of others in the event of disobedience or non-compliance.
->There are quite
chance/likelihood):

a few reasons to

reject

this interpretation

(of

The fundamental objection is that Austins theory obscures the fact

that deviation or non-conformity regarding rules are a reason for
applying the sanctions, and not just grounds for a prediction that
hostile reaction will follow. The sanction is the motivation for not
breaking the law.

The second (simpler) objection is that what if the person had an

obligation (and was likely to suffer if he disobeyed) but then
successfully escaped jurisdiction wherein there is no absolutely
chance he would be punished if he disobeyed.
->To understand the general idea of an obligation one must turn to the
existence of social rules which create that obligation. This situation (which
includes social rules) contributes in two ways the statement that a person has
an obligation:
First, the existence of such social rules making certain types of
behavior a standard is the background / proper context for the
statement that a person has an obligation.
Second, the distinctive function of the statement (that a person has an
obligation) is to apply such a general rule to a specific person by
calling attention to the fact that his case falls under it (of having an
obligation).
->The statement that one has or is under an obligation does imply the
existence of a rule. However, there are some rules which require certain types
of behavior without obligating anyone (such as rules of etiquette or speech
which are not really duties but are rules nonetheless).
->Rules are thought of as imposing obligations due the importance or
seriousness of social pressure behind them (the demand for conformity is
insistent and the social pressure to deviants is great).
Rules supported by sufficient social pressure are important because they are
deemed necessary for the maintenance of social life and balance. Such rules
may be customary in origin.
There is not centrally organized system for punishment of breach such rules
(social pressure): It may be verbal disapproval / appeal or it may depend on
the feelings of shame / remorse / guilt. If physical sanctions are present and
are not administered by officials but rather by the community, it is considered
as primitive or rudimentary form of law.

Second, conduct required by these rules may, while benefiting others,

conflict with what the person owing the duty may wish to do (involves
sacrifice or renunciation).
The possibility of conflict between obligation / duty and interest is one of the
truisms (clichs) of lawyers and moralists.
->Social pressure appears as a chain binding those with obligations so that
they arent free to do what they want. On the other end of the chain are either
official representatives insisting performance or exacting penalty (criminal law)
or groups / individuals who may choose whether or not to insist performance
(civil law).
->Obligations need not be a necessarily be due to social pressure (feelings of
compulsion / pressure). An example would be a swindler who has no
compulsion / pressure to pay when he actually should have an obligation to
pay.
Obviously, to feel obliged and to have an obligation are two different things
(though they are both noncommittal in nature).
->There is a need to properly differentiate between Austins theory that
statement of obligation as a prediction of hostile reaction to deviation and the
idea brought forth that it should not be to predict but to say that a persons
case falls under such rule, in order to better understand the distinctive style of
human thought / speech / action which is involved in the existence of rules
and constitutes the normative structure of society.
The differentiation can be better explained through Internal and External
points of view:
In External point of view, the observer views rules in terms of
observable regularities of conduct, probabilities and signs. To the
external observer, deviation from the normal conduct is a sign that a
hostile reaction will follow and nothing more.

->The seriousness of social pressure behind the rules is the primary factor in
determining whether these rules give rise to obligations. There are two other
characteristics which go with this primary one:

An example would be a traffic light wherein the external observer

views as a natural sign that people will behave in certain ways, and
the external observer would miss out a whole dimension of social life
of those being observed (that the red light is not just a sign that others
will stop, but a signal for them to stop, making stopping during red
light a standard of behavior).

First, rules obviously essential and restrict the free use of violence are
thought of as obligations. Rules are also obligations if they require
truth or honesty and keeping with promises or specifying ones distinct
role in a social group (in terms of duties).

In Internal point of view, this brings into account the manner in which
the members of the group look at their own behavior. It is the internal
aspect of the rules from their internal points of view (referring again to
the traffic light example).

->The life of any society which lives by rules (legal or illegal), is likely to
consist in tension between those who voluntarily accept the rules (and see
their own and other peoples behavior in terms of the rules) and those who
reject the rules and just follow them to avoid the (external point of view) of
possible punishment.

Second defect, the rules may become static because there is simply
no growth (if we just rely on primary rules) and there will be no way of
adapting the rules to changing circumstances either by eliminating old
rules or introducing new ones (no system in place for such sudden
rule changes, only a very slow process of additional customs through
years or decades).

3. The Elements of Law

(Note: Hart basically discusses the 3 secondary rules of recognition, change,
and adjudication. When these are combined with the primary rules of
obligation, we now have the center of a legal system.)
->A society can exist without courts, legislature, or officials. These are
primitive communities and some still do exist today. In this setting, the only
means of social control is the general attitude of the group towards its own
standard modes of behavior.
->Such system is likened to custom but this term is not used since it implies
very old rules and less social pressure. The proper description to this
primitive system of a social structure is that it only needs Primary Rules.
->To satisfy the definition of a society living on Primary Rules alone, certain
conditions must be satisfied:
First, rules must contain some restriction on the free use of violence,
theft, and deception which men are tempted but must generally
repress if they are to live in close proximity with each other.
Second, since there is an existing tension between those who accept
the rules and those who reject the rules (and just follow them to avoid
punishment), those who accept the rules (from the internal point of
view) must be the majority. Since if the ratio would be 50:50 or if those
who reject are not in the minority, then there would be less social
pressure for them to comply with their obligations.
->The above conditions of a primitive community setup can only be
applicable to a small community where the bonds of kinship, common
sentiment, and belief are present in abundance to survive a regime of
unofficial rules.
->There will be defects if this setup is applied to a larger and more complex
society:
First defect, the rules would possess uncertainty because it would
be difficult to identify them as there is no standard set of rules, and
there would be no explanation with regard to their scope of
application. This is similar to the rules of etiquette example.

Third defect, there will be inefficiency of social pressure because it is

too diffuse in a large society and there is no agency authorized to
inflict a sanction. This might result in arbitrary biases, vendettas (for
self-help, personal revenge, etc.), or no standard punishment for
varying violations.
->The remedy to these defects is to merge the primary rules of obligation with
secondary rules which are rules of a different kind. It is this very union that will
take the society from being pre-legal to legal:
First remedy (for uncertainty), is the Rule of Recognition. It is the
master rule. It is a simple or a complex instrument which possesses
flexibility for it may not be more than a list or a text of rules found in a
written document or carved in some public monument. What makes
this crucial is the acknowledgment of reference to the writing as
authoritative. This rule is conclusive identification of the primary
rules of obligation. This provides unification of rules gives birth to a
legal system.
Second remedy (for static rules), are the Rules of Change. This
empowers people to introduce new primary rules and to eliminate old
ones by specifying certain procedures like legislative enactment. The
rules of change may also enable private individuals to create rights
and obligations in the form of wills, contracts, transfer of property, and
other voluntarily created structures of rights and duties which typify
life under law.
Third remedy (for inefficiency), are the Rules of Adjudication. This
confers powers on certain individuals to arbitrate or judge and also
define the procedures in accordance with which adjudication would
take place. These secondary rules provide for the centralized official
sanctions of the system.
->With the union of the primary rules of obligation with the secondary rules of
recognition, change and adjudication, we now have the heart of a legal
system.
->It must be noted though that the union of primary and secondary rules is the
center of a legal system but it is not whole and if one moves further away from
the center, more elements will be defined (in Chapter VI).

Chapter VI: The Foundations of a Legal System

1. Rule of Recognition and Legal Validity
(Note: Hart basically discusses the multiplicity and hierarchy in the rule of
recognition: constitution, legislation, judicial precedent, etc. The rule of
recognition is the ultimate rule.)
->The Rule of Recognitions main function is to identify whether another rule is
part of the legal system or not. Wherever such a rule of recognition is
accepted, both private persons and officials are provided with authoritative
criteria for identifying primary rules of obligation.
->The criteria may take any one or more of the variety of forms, which include:
Reference to authoritative text;
Reference to legislative enactment;
Reference to customary practice;
Reference to general declarations of specified persons; or
Reference to past judicial decisions in particular cases.
->In a modern legal system where there are a variety of sources of law, the
rule of recognition is correspondingly more complex. This commonly includes
a written constitution, an enactment by legislature, and judicial precedents.
->In order to avoid conflict these sources of law are ranked in order of relative
subordination and primacy.
An example is the English legal system where common law is
subordinate to statute (Acts of Parliament).
->In a legal system the rule of recognition is seldom stated, but its existence is
shown in the way in which particular rules are identified, either by courts, their
officials, or private persons or their advisors.
An example would be in the scoring rule of a game where activities of
scoring (runs, goals, etc.) are not formulated but used by officials and
players in determining the score. And the declarations of umpires /
scorers have a special authoritative status (similar to judges).
->A court using the unstated rule of recognition to identify particular rules of
the system is a characteristic of the internal point of view.
->There are two forms of expression for shared attitude of acceptance of
rules:

The Internal Statement, manifesting the internal point of view and

recognizes some particular rule in the system as valid without stating
that it is accepted. Example: It is the law that
The External Statement, being the natural language of an external
observer of a system who states the fact that others accept the rule,
without himself actually accepting such rule. Example: In England
they recognize the law as whatever the Queen in Parliament enacts.
->To say that a given rule is valid is to recognize it as passing all the tests and
satisfying the criteria provided by the rule of recognition.
->There is dichotomy between validity and efficacy of law. There is no
connection between the two unless the rule of recognition expressly
recognizes in its criteria that no rule is to count as a rule of the system if it has
long ceased to be efficacious.
One who makes an internal statement concerning the validity of a particular
rule may be said to presuppose the truth of the external statement of fact
that the system is generally efficacious.
An understanding of the internal statement that a given rule is valid, and the
external statement of fact that the system is generally efficacious, helps in
seeing in a proper perspective the common theory that to assert the validity of
a rule is to predict its enforcement by the courts or officials.
->There are two ideas for the Rule of Recognition, the Supreme Criterion and
Ultimacy Rule:
The Supreme Criterion is a part of the rule of recognition and it is the
part which dominates over the rest. A criterion of legal validity or
source of law is supreme if rules referenced to it are recognized as
rules of the system. If the rules referenced to other criteria are in
conflict with the rules referenced to the supreme criterion, the latter
are the ones to be recognized.
An example would be parliamentary enactment in the UK, wherein if a
situation arises where the common law, or local or general custom,
contradicts with it, parliamentary enactment will prevail.
The Ultimate Rule of the system is the Rule of Recognition itself
because one cannot go further than that. It is ultimate because it is
neither valid nor invalid but simply accepted as appropriate for use in
this way.
An example is the meter bar in Paris and the Big Ben in London which
are considered to be the ultimate tests for correctness of
measurement and time respectively.

2. New Questions
(Note: Hart basically discusses the questioning of the existence of a legal
system)
->It is vital to distinguish between assuming validity and presupposing
existence, because if one does not do so it obscures the assertion that such
a rule exists.
->The existence of the rule of recognition is a matter of empirical fact and not
a normative statement.
->The two minimum conditions necessary and sufficient for the existence of a
legal system are:
First, the rules of behavior which are valid according to the systems
ultimate criteria must be generally obeyed. This is the only condition
that private citizens need to satisfy.
Second, the rules of the system (regarding criteria of legal validity and
rules of change / adjudication must be accepted as common public
standards of official behavior by officials. This is the condition that
public officials must also satisfy.
->The officials of the legal system must have an internal attitude towards the
rule of recognition of the system, and it is not necessary, although it is
desirable, that private citizens have an internal attitude towards rules as well.
->There should be a unified / shared official acceptance of the Rule of
Recognition (with the criteria of validity).
->The valid legal rules of the system must be obeyed by both officials and
private citizens.
->In the extreme case where an internal point of view is only amongst the
officials, society would be deplorably sheep-like (and ending at the
slaughterhouse), but it would still remain a legal system.
->The assertion that a legal system exists is a two-pronged statement looking
both towards obedience by ordinary citizens and to the acceptance of officials
of secondary rules as critical common standards of official behavior.
3. The Pathology of a Legal System
(Note: Hart basically discusses the conditions for the breakdown of a legal
system)

->A legal system exists when both the official sector (officials) and private
sector (citizens) are congruent / similar in their concerns with the law. If both
points of view coincide there is harmony and the legal system is valid.
Basically, the rules recognized as valid at the official level are generally
obeyed.
->However, the official sector sometimes becomes detached from the private
sector (there is no longer any general obedience to the rules which are
supposedly valid according to the criteria of validity).
The breakdown in the complex congruent practice may be due to various
disturbing factors:
If there is a Revolution, where there are rival claims of governance
within the group and there may be an illegal substitution of officials in
the system.
If there is Enemy Occupation, where there is a rival authority to
govern.
If there is Anarchy or Banditry, where there is simply the breakdown of
ordered legal control.
Moreover, when unity among officials partly breaks down due to disagreement
over certain constitutional issues, this also leads to the breakdown of the legal
system.
->There is no exact determination whether a legal system ceases to exist,
because there may be half-way stages (example: governments-in-exile) or
there is still a considerable chance of restoration or if the disturbance is an
incident of war and that the future is obviously uncertain.
->Difficulties arise upon restoration from interruptions of legal systems, such
as what was law during an enemy or rebel occupation (if the legitimate
government returns victoriously).
This may be raised as a question of international law, or retrospective law may
be declare such that the laws of the restored system have always been in
effect even during interruptions.
An example situation on a legal system ceasing to exist would be the
independence of British colonies wherein they would now have
separate legislatures and laws, with the laws of the colonial power no
longer operational in the respective former colonies.