Chapter 5: HART’S CONCEPT OF LAW: LAW AS THE UNION OF PRIMARY AND

SECONDARY RULES (CHAPTER 5, Concept of Law)

5.3.1 Introduction
(i) Hart states that, as seen in Chapters 2, 3 and 4 of Concept of Law the
simple model of law as the sovereign’s coercive orders failed to
reproduce some of the salient features of a legal system.

(ii) Why?
(a) Firstly though of all varieties of law a criminal statute, forbidding or
enjoining actions under penalty differs from orders backs by threats in that
it also applies to those who enact it.
(b) Secondly, there are other varieties of law (e.g. those conferring legal
powers to adjudicate, legislate or create or vary legal relations) cannot
be construed as orders backed by threats.
(c) There are legal rules which differ from orders in their mode of origin
(e.g. customary rules given recognition by courts)
(d) Finally the analysis in terms of the sovereign habitually obeyed and
necessarily exempt from all legal limitation failed to account for continuity
of legislative authority, and the sovereign person or persons could not be
identified.

(iii) Hart states that the root cause of this failure is that the ideas of orders,
obedience, habits and threats do not include the idea of a rule. There
thus exist two types of rules:
(a) primary type – human beings are required to do or abstain from
certain actions – impose duties
(b) secondary type – introduction by human beings of new rules of
primary type (legislature or courts) modify old ones or in various ways
 determine their incidence or control their operations – confer powers
public or private.

(iv) Hart states that it is in the combination of these two which lies, what Austin
wrongly claimed as orders backed by threats, namely ‘the key to the
science of jurisprudence’.

5.3.2 The Idea of Obligation

(i) In exploring the interplay of these two types of rule, the starting point by
Hart is that certain human conduct is non – optional or obligatory.

(ii) As in the example of the gunman situation where A threatens B to hand

over the money there, lies a fundamental difference in B being obliged to
and had an obligation to. 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.

(iii) According to Hart, having an obligation to do something does not

necessarily encompass facts about beliefs and motives. Moreover, having
an obligation need not mean a person does something which he is
required to, whereas being obliged to carries the implication that he
actually did it.

(iv) Hart states that Austin (as distinct from Bentham) in seeing the general
irrelevance of the person’s belief, fears and motives to the question of
whether he had an obligation to do something, defined it in terms of the
chance or likelihood of punishment or evil (sanctions) in the hands of
others in the event of disobedience.
(v) The first fundamental objection to this by Hart is that deviation to rules is
not merely grounds for a prediction that hostile reaction will follow but also
a reason or justification for such reaction or applying sanctions. Secondly
where there is an obligation a deviation need not necessarily be met by
sanctions. For example, some swindler had an obligation to pay rent, but
felt no pressure to pay when he made off without doing so. Feeling
obliged and having an obligation are different.

(vi) Hart states “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. When the pressure is of this kind (distinct from sanctions) we may be
inclined to classify the rules as part of the morality of the social group and
the obligation under the rules as a moral obligation. What is important
here is the seriousness of social pressure behind the rules is the primary
factor determining whether they are thought of as giving rise to
obligation...”
“..The rules supported by this serious pressure are thought important
because they are believed to be necessary to the maintenance of social
life or some highly prized feature of it. Secondly, it is generally recognized
that conduct requiring these rules while benefiting others conflict with
what the person who serves the duty may wish to do.”

“…Social pressure appears as a chain binding those who have obligations

so that they are not free to do what they want. The other end of the chain
is sometimes held by the group or their official representatives who insist
on performance or exact penalty; sometimes it is entrusted by the group
to a private individual who may choose whether or not to insist on
performance or its equivalent in value to him…”
(vii) Hart also elaborates on the internal and external aspect of rules (or points
of view). The external point of view, being that of the observer who does
not himself accepts them and members of the group which accepts and
uses them as a guide to conduct.
“The way in which a group regards its own behavior is to refer to the
internal aspect of rules from their internal point of view. The external point
of may very nearly reproduce the way in which rules function in the lives
of certain members of the group namely those who reject the rules; thus
being more concerned with the predictive aspect. For the majority of
society violation of a rule is not merely a basis for the prediction that a
hostile reaction will follow but a reason for hostility…”
“…The observer does not accept them but uses it to predict sanctions or
outcomes ie deviation by members of group will be met with hostile
reaction being likely to follow and nothing more. For eg a traffic light,
members of the public take it as signal to stop..”
“…In any society which lives by rules legal or not there is a tension
between those who accept and voluntarily co-operate in maintaining
rules and see their and other persons behavior in terms of rules, and those
who reject the rules and attend to them only from the external point of
view as a sign for possible punishment…..”

5.3.3. The Elements of Law

(i) 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 behavior earlier characterized as rules of obligation, such a
social structure can be referred as one of primary rules of obligation. He
explains that only a small community closely knit by ties of kinship,
common sentiment and belief placed in a stable environment could
successfully live by such regime and unofficial rules sociological
justification.
(ii) Such primary rules must fulfill certain conditions:
(a) Must contain some form of restriction on the free use of violence, theft,
deception etc.
(b) Though such a society may exhibit a tension those with the external
point of view are a minority. Majority live by rules seen from internal
point of view.

(iii) According to Hart, only a small community could successfully live by such
a regime. I may prove defective due to:
(a) Uncertainty (no other rules for settling doubts e.g. by reference to an
authoritative text or official exist);
(b) Static character of the rules (the only mode of change would be the
slow process of growth due to passage of time); and
(c) Inefficiency of the diffuse social pressure by which the rules are
maintained (no agency specially empowered to ascertain finally and
authoritatively the fact of violation).

(iv) According to Hart, the remedy for these 3 main defects in this simplest
form of social structure consists of supplementing the primary rules of
obligation with secondary rules which are rules of a different kind. Hart
states that he intends to show why law may most illuminatingly be
characterized as a union of primary rules of obligation with such
secondary rules. This is Hart’s step forward from the pre-legal to the legal
world.

(v) Hart explains that the secondary rules specify the ways in which the
primary rules may be conclusively ascertained, introduced, eliminated,
varied and the fact of their violation conclusively determined. The simplest
form of remedy for uncertainty is the introduction of the ‘rule of
 recognition’. What is crucial is the acknowledgement of reference to
writing or inscription as authoritative that is, as the proper way of disposing
doubts as to the existence of the rule. Thus where there is such an
acknowledgement, there is a very simple form of secondary rule; a rule for
conclusive identification of the primary rules of obligation – the idea of
legal validity.

(vi) 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.

(vii) Hart states that there will be a very close connection between rules of
change and the rule of recognition; where the former exists, the latter will
necessarily incorporate reference to legislation as an identifying feature of
rules though it need not refer to all details of procedure involved in
legislation. If the social structure is so simple that ‘the only source of law’ is
legislation, it will be equivalent to saying that the rule of recognition would
simply be whatever Rex enacts is law. This is not entirely true according to
Hart.

(viii) Hart reiterates as he did in the earlier Chapter 3, that there are rules which
confer powers on individuals to vary their initial positions under primary
rules eg making of wills, contracts, transfers of property and other
voluntary created structures or rights and duties.
(ix) 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.

(x) Hart states that these rules define important legal concepts such as a
judge or court, jurisdiction and judgment. Thus a legal system having rules
of adjudication is also committed to a rule of recognition and judgments
will become a ‘source of law’. This form of rule of recognition will be very
imperfect since rules depend on a somewhat shaky reference from
particular decisions.
“Centralisation of social pressure by supplementing primary rules of
obligation by secondary rules which provide centralized official sanctions
of the system occurs in most systems…”

(xi) 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 and a most powerful tool for the analysts, of much
that has puzzled both the jurist and political theorist.

(xii) 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.