HART Positivism

Dr. D. Ganesh Kumar

Assistant Professor
 Hart Positivism
• Prof. H.L.A Hart was the principal of Brasenose
College, Oxford. He Practiced at the Chancery Bar and
then became professor of jurisprudence at oxford in
1952- 68 before his appointment at Brasenose College.
• Hart differs from most of his Analytical Predecessors
in clearly stating that his main objective has been to
furthering the understanding of Law, Coercion and
Morality as different, but related social phenomena. He
also defends the role of analysis of the purpose of
clarifying the general frame work of legal thought
rather than criticism of law.
 Contd...
• Hart’s Theory of law is entirely different
from the orthodox analytical positivism of
Austin.
• In order to understand Hart’s Idea of Law,
he first criticizes Austin for his notions
concerning nature of law as ‘orders backed
by threats’ with habitual obedience to such
orders emanating from sovereign where the
subjects are ‘obliged ‘ as key to the
understanding of jurisprudence.
 Contd....
• According to him, law is a system of rules,
the two types of rules the union of which
explains the nature of law or essence of law.
the union of the two types of rules provide
“key to the science of Jurisprudence” are
what he calls as primary and secondary
rules.

He rejected Austin’s Theory that rule is a

kind of Command.
 Contd...

• According to him, Primary rules are obligative and

impose duties upon individuals and are binding as
they are required to do or to abstain from certain
actions.

• He imagines a society/ community where only

primary rules exists without legislature, courts or
officials of any kind what he called as pre-legal State;
primitive small communities are closely knit by ties
of kinship, common sentiments, and belief and
placed in a stable environment, could live
successfully by such a regime of unofficial rules.
 Contd...

• Secondary Rules on the other hand confer

power on legislators and judges to add,
change and to determine when the rules
are broken, and the union of the primary
and secondary rules bring out a legal
system.
 3 defects of the community
• According to him there are 3 defects with which
community suffers:-

• Uncertainty: - there is no systematic procedure for

resolving doubts or questions as to what the rules are or
what their scope is. Remedy for it is rule of recognition.
• Static: - Change in Law is accomplished only by the slow
process of growth and decay. Remedy is rule of change
by empowering certain individuals to introduce new
rules.
• Inefficiency: - Rules are maintained only by diffuse social
pressure and there is no agency for determining disputes
about the rules, their incidence and their violations.
Remedy is rule of Adjudication.
 Remedies for these 3 defects
• The Remedy for these 3 main defects is the
supplementation of primary rules with Secondary
rules.
The rule of recognition lay down criteria for
identifying the primary rules. The rule of change
specifies the mechanism for changing primary
rules. Rule of Adjudication provide for
determinations whether primary rules have been
violated.
According to him primary rules impose duties,
obligations. They are concerned with actions
involving physical movement or change; the
individual must or must not do.
 Contd...

• The secondary rules confer power (public

or private), or power to conferring rules to
the creation and variation of obligations.
They provide for operation, which lead not
merely to physical movement or change,
but the creation or variation of duties or
obligations.
 Contd..
• They are concerned with the primary rules
themselves and specify the way in which the
primary rules may be conclusively
ascertained, introduced, eliminated, varied
and the fact of their violation conclusively
determined. Morality is implicit in Hart’s
System of law which h describes as union of
Primary and Secondary Rules. Law and
Morals co-exist, overlapping and are even
complimentary and supplementary in nature.
Hart’s Positivism contains in it Natural law.
 Rule of Recognition...
• According to Hart, Rule of Recognition,
exists in every legal system. It provides an
answer to the Question, “When a legal
system exists”? It provides an answer to
“What law is?” The master rule of
recognition is the ultimate source of the
Legal system like Austin’s Sovereign.
 Contd...
• To know what rule of Recognition of a
particular community has adopted or
follows, we must know how its citizens,
particularly its officials –legislators, courts,
agencies, policemen and the rest behave.
For rules to be valid, it has to pass all the
tests of rule of recognition.
• Hart’s version of Positivism is more
complex than Austin for rules of law is
more sophisticated. It is concerned with
judicial decision making.
 Contd...
• (Ascertaining law to the case via rule of
recognition and applying it to the facts of
the case). For Austin it is ‘Habitual
Obedience’. For Hart it is that of ‘Rule
Accordance’.

• Rule of Recognition like Austinian

Sovereign, just exists, while the later die, the
former only fade away into disuse.
• Thank you