HLA HART

• Legal positivism is used to signify a doctrine which rejects any metaphysical speculation
concerning law. In other words, it is considered as a view of law which takes into account
the positive law only i.e., law as it ‘is’ and not law as it ‘ought’ to be.
• The term ‘legal positivism’ can best be summarised by this statement: “The existence of
law is one thing; its merits and demerits another...”
• Hart rejects that citizens obey the law simply out of fear or habit. According to him, in a
developed society, people obey the law out of the a sense of obligation. Thus, he replaced
the idea of command (attributed to Austin) with the idea of a rule. This is because a rule
is broader than the concept of command e.g. a rule has elements which command may
not have i.e. the internal point of view, the obedience in the absence of fear etc(the
awareness of, and support for, a social rule)
• In his essay, Laws as a Union of Primary and Secondary Rules, Hart criticizes Austin’s theory
of laws as commands and argues for a new framework which describes laws as rules. Hart,
like Austin, is a positivist and wants to separate the descriptive question of what law is
from the prescriptive question of what law should be. But, he does believe that there is a
normative aspect to the law, which is reflected in the obligation we feel to follow it. In his
analysis Hart makes a distinction between two types of rules (primary and secondary). The
separation of rules into these two different categories allows him to establish a method to
determine the validity of a law, which is what determines whether it creates an obligation
among citizens in a society or not.
• According to Hart, the basic failure of Austinian model is its neglect of a concept of a rule.
Hart argued that to understand the foundations of a legal system, rather than an account
based on habitual obedience to the commands of unlimited sovereign, a necessary insight
will be that laws are a specifies of rules and ultimately the foundations of a legal system
will be based on the acceptance of a fundamental rule.
• In Hart’s analysis, laws are described as rules in order to be distinguished from Austin’s
theory of laws as commands. A brief observation of existing laws will present us a wide
range of laws that do not neatly present themselves in command form. For example,
power-conferring laws, which describe or direct agreements between people such as
contracts or marriages, appear to be granting people rights or describing the way public
 officials should react to certain circumstances rather than commanding people to behave
in a certain way. Furthermore, the command theory leaves out an explanation for how, in
modern representative systems, the rule-makers who issue the commands find
themselves bound by them as well
• For these reasons, Hart believes that a more appropriate metaphor for thinking about laws
is that of rules in a sporting competition. Rules can not only direct the players to perform
or refrain from performing certain actions, but they also give directions to the umpire or
score keeper. Furthermore, players feel themselves bound by the rules. The rules
themselves provide a reason to act, not just the fear of punishment as in the command
theory. Hart calls this point of view, where the existence of the rule provides an obligation
for action, the internal perspective to the law.
• Hart then goes on to explain the nuance between being obliged in the Austinian sense and
the word obligation, which is a word which describes his primary rules. According to Hart,
the statement that a person was obliged to obey someone is a psychological one referring
to beliefs and motives with which the action was done. Having an obligation to do
something does not necessarily encompass facts about beliefs and motives. It is Hart’s
view that, Austin ought to have focused on the word obligation rather than the word
obliged which Austin defined it in terms of the chance or likelihood of punishment or evil
(sanctions) in the hands of others in the event of disobedience.
• Hart divides rules into two categories, primary rules and secondary rules.
• According to Hart, in every developed legal system there are two types of rules i.e. primary
and secondary rules. Hence, the quintessence of law and legal system could be understood
by a ‘union of primary and secondary rules’. Hart states that he intends to show that it is
in the combination of these two rules which lies, what Austin wrongly claimed as orders
backed by threats, namely ‘the key to the science of jurisprudence’.
• According to Hart a social rule which constitutes obligation (i.e. Primary Rule) has an
Internal and External aspect.
o Internal Aspect of Rule: It is the awareness of, and support for, a social rule. Hart
termed it Internal Point of View [Psychological element in Hart's Theory]. Hart then
develops the internal aspect and correlates it to rules by stating that in essence,
rules are conceived and spoken of as imposing obligations when the general
demand for conformity is insistent and the social pressure brought to bear upon
those who deviate or threaten to deviate is great. Hart stresses that the
 seriousness of social pressure behind the rules is the primary factor determining
whether they are thought of as giving rise to obligation.
o External Aspect of Rule: It is the fact that the rule can be observed to exist by an
outsider. Hart termed it External Point of View.
• Hart explains these two with the help of an example which is as follows:
o Suppose an observer watches the traffic. Although he does not know anything
about the traffic rules, he observes that when the lights turn red, the traffic stops.
This is the external point of view.
o On the other hand, a person who drives a car looks at it in a different manner. For
him, the light turning red is a signal to stop. He knows that when the light turns
red, he ought to stop. The driver looks at the rule from an internal point of view.

PRIMARY RULES

• primary rules either forbid or require certain actions and can generate duties or
obligations. For a citizen with an internal perspective to the law, the existence of a primary
rule will create an obligation for him or her to behave a certain way
• Primary rules are generally duty imposing. These resemble criminal law which restricts
acts of violence (murder, battery, rape etc), acts against property (theft, robbery, criminal
trespass etc).
• In other words, primary rules of obligation generally concern requirements to perform, or
abstain from, specified types of activity (rules of obligation or duty). Hart argues that if a
society is to operate solely on the basis of primary rules, certain conditions arising from
human nature and the very world in which we live would have to be satisfied.
• When we think of something being against the law, or required by the law, we are generally
in the realm of primary rules. A primary rule can be the law against walking out of the
Apple Store with an IPod without paying or the law requiring you to stop at a red light. In
the “rules of the game” metaphor, an example of a primary rule would be that in football,
it is illegal to restrain a player who is not in possession of the ball.
• Hart then creates a hypothetical society called the ‘pre-legal’ society, being a society
before a legal system is born, and hones in on the defects of the prelegal society as being
a sociological justification for having a legal system. According to Hart, in the life of a
society where the only means of social control is the general attitude of the group towards
 its own standard modes of behaviour characterised as rules of obligation, such a social
structure can be referred as one as being regulated by primary rules of obligation.
• It is this utopian society which Hart states is more of a cocoon which cannot last for
eternity and only a small community may successfully live under a simple structure of
having only bare primary rules. Hart states that the following social defects would
emasculate the continued existence of such a society:
o The problem of uncertainty – it would always be difficult to determine whether a
certain rule was a rule of law or custom, convention, morality, or religious custom.
(no other rules for settling doubts e.g. by reference to an authoritative text or
official exist)
o The problem of the static nature of laws – even where rules of law were known
new situations might arise which would need immediate modification of an
existing rule to cover that situation/development of a new rule. Hart claims it
would not necessarily be easy to create with sufficient expedition a new rule
through the process of establishing consensus among the members of a pre-legal
society. (the only mode of change would be the slow process of growth due to
passage of time)
o The problem of inefficiency – Where rules of law were broken there would always
be difficulty in ascertaining the reality and extent of the breach as well as in
determining the extent of compensation or the severity of punishments. (no
agency specially empowered to ascertain finally and authoritatively the fact of
violation)
• The next step Hart takes is to advance into a legal society, wherein these defects are
remedied by supplementing the primary rules of obligation with secondary rules which
are rules.

SECONDARY RULES

• Secondary rules on the other hand, set up the procedures through which primary rules
can be introduced, modified, or enforced. According to Hart, ‘secondary rules’ are ones
that give people (private individuals or public bodies) power to introduce or vary the first
kind of rule. In other words, secondary rules are power conferring. Secondary rules can
be thought of as rules about the rules.
 • Continuing with our football metaphor, an example of a secondary rule would be that a
coach is permitted to challenge a call by the referee, but must accept the final decision of
the ref following the viewing of the instant replay. When analyzing the necessity for
secondary rules, Hart imagines a simple society, with only primary rules, but concludes
that such a society would face a number of challenges: because there would be no
systematic method of rule creation, there would be uncertainty about what the rules
actually are; the system would be very static, since any changes in the rules would have to
occur organically; finally, without a defined adjudication method, inefficiencies would
arise from disputes over whether a rule was actually broken. These three problems can be
remedied with the introduction of three types of secondary rules, in order: rules of
recognition, rules of change, and rules of adjudication

RULE OF RECOGNITION

• Of these three secondary rules, Hart believes that rule of recognition is the most important.
The rule of recognition tells us how to identify a law. In modern systems with multiple
sources of law such as a written constitution, legislative enactments, and judicial
precedents, rules of recognition can be quite complex and require a hierarchy where some
types rules overrule others
• The ‘rule of recognition’ resolves problems of uncertainty in primary rules. It can counter
the ‘uncertainty’ of traditional law. Law is only valid once it goes through ‘rule of
recognition’.
• But, by far the most important function of the rule of recognition is that it allows us to
determine the validity of a rule. Validity is what allows us to determine which rules should
be considered laws, and therefore, which rules should create obligations for citizens with
an internal perspective to the law. According to Hart, validity is not determined by whether
a rule is obeyed, its morality, or its efficiency, but by whether it fits the criteria set forth by
the rule of recognition
• In the context of Hart’s definition of validity (whether the law is derived from a source and
in a manner approved by other rules) it simply does not make sense to ask about the
validity of the rule of recognition in its supreme form. Once we have reached the rule of
recognition, there is no higher level of rules to provide us with the criteria with which to
judge its validity.
 • Other writers have made the claim that the rule of recognition can simply be “assumed to
be valid”. Hart, however, believes that this description is inaccurate and prefers the
explanation that the rule of recognition is “presumed to exist”. The word “validity” can
only be used to answer questions about the status of a rule within a certain system of
rules. Since the rule of recognition is the standard which we use in order to judge the
validity of other rules, it cannot itself have a validity test.
• In this context, the rule of recognition cannot be described in terms of validity, but only in
terms of existence. The rule or recognition is presumed to exist if it is actually accepted
and employed in general practice. In this respect, the existence of the rule of recognition
is an external statement of fact. While laws can be valid even if de facto no one abides by
them, the rule of recognition can only exist if courts, legislators, officials, and citizens act
in a consistent way that corresponds with the presumed existence and acceptance of such
a rule

RULE OF CHANGE

• For Hart, the remedy for the static quality of the regime of primary rules consists in the
introduction of ‘rules of change’. In its simplest form such a rule is that which empowers
an individual or body of persons to introduce new primary rules for the conduct of life of
the group and to eliminate old rules (for example) legislative enactment and repeal. Such
rules of change maybe simple or complex, the powers conferred maybe unrestricted or
limited in various ways. The rules may define the persons who are to legislate and also the
procedure to be followed in legislation.
• This rule confers powers to legislators, judges and officials to amend, repeal, enact new
rules. Thus, the ‘rule of change’ plays the role of remedying the defect of staticness caused
by primary rules. In the area of private law, the ‘rule of change’ enables the private citizens
to change their legal position through the conferment of power to make wills, marry, make
contracts etc.
• They keep society dynamic and counter the ‘static nature’ of the traditional law.
RULE OF ADJUDICATION

• Hart recommends that the remedy for inefficiency consists of secondary rules
empowering individuals to make authoritative determinations of the question whether on
a particular occasion a primary rule has been broken. These are ‘rules of adjudication’
(identifying individuals who are to adjudicate and the procedure to be followed). There
rules do not impose duties but confer judicial powers and the special status on judicial
declarations about the breach of obligations and impose the appropriate sanction.
• It is a rule conferring power on judicial officials to adjudicate on disputes and breach of
law. In other words, it is a rule setting out standards for determination by courts of the
instances, extent and the commensurate punishment or compensation for any breach of
law.

• Hart’s definition follows: The legal system would exist if there are just two social practices,
one being the majority of society obeying the primary rules and the secondary rules being
accepted by officials as accepted standards of behaviour. Hart asserts that it is in the
combination primary rules of obligation with secondary rules of recognition, change and
adjudication, we have the heart of a legal system.

• Hart acknowledges that though that the union of primary and secondary rules is the focal
point of the legal system, it is not the whole, and as we move away from the centre we
have to accommodate elements of a different character. This is an acknowledgement by
Hart that in some instances the rule of recognition may not always resolve the issue of
validity, and that law may have an open texture,

Further

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