Juan Manuel Jaramillo 201729738

Hart and the Empanada: An analysis

The theories and propositions that the British legal philosopher H.L.A Hart brought forth
throughout his lifetime have been widely regarded as of great influence and importance in the
shaping and evolution of the notion of a positivistic legal system1. This essay will analyze two
ideas proposed by Hart in the fifth chapter of his renowned book The Concept of Law; the
existence of primary and secondary laws and the difference between the obligation to do
something and feeling obliged to do something. This analysis will be done using a real life
example as a way to observe Hart´s propositions in a very practical and real setting as well as in
order to determine the application of said propositions in real life. Hart´s ideas on laws and
obligations will be analyzed under the situation of a Colombian law that economically punishes
citizens that buy food from illegal street vendors that are occupying public space, a law that
recently gained relevance when a man was fined for buying an “empanada” on the street.

The essay will outline Hart´s main points on both of the propositions mentioned above to then
conduct an analysis relating them with the empanada situation. The idea is that at the end of the
text, the reader gains an understanding of Hart´s theories and how they are applied and used in a
complex real life situation and weather or not they are worthy of any criticism.

Hart proposes that every legal system should have two types of rules, primary ones and
secondary ones, and that “rules of the first type impose duties; (while) rules of the second type
confer powers, public or private”2. He explains that primary rules are concerned with the actions
that individuals must or must not do and that secondary rules, “specify the way in which the
primary rules may be conclusively ascertained, introduced, eliminated, varied and the fact of
their violation conclusively determined”3
The author goes on to explain that he believes there are three types of secondary rules: rules of
recognition, rules of change and rules of adjudication. He defines rules of recognition as the way

1 Green, Leslie. "Legal Positivism." Stanford Encyclopedia of Philosophy. January 03, 2003. Accessed February 18, 2019.
https://plato.stanford.edu/entries/legal-positivism/.
2 Hart, H.L.A. The Concept of Law. 2nd ed. New York: Oxford, 1994. Pg: 81
3 Ibídem, Pg 94
Juan Manuel Jaramillo 201729738

in which citizens recognize that primary rules as existing and enforceable, that is to say, the rule
of recognition is “a rule for the conclusive identification of the primary rules.”4 It is thru the rule
of recognition that the citizens, when looking at a rule, and analyzing if it comes from the
“correct” sources (lawmakers, custom, etc…) recognize that that rule does in fact, exist.

Rules of change, on the other hand, are described as those that “empower an individual or body
of persons to introduce new primary rules for the conduct of the life of the group or of some class
within it, and to eliminate old rules”5. Basically, rules of change allow for primary rules to be
created, modified or eliminated by the appropriate figures (lawmakers, citizens, presidents, etc…)

Lastly, there is the rule of adjudication, according to Hart, the rule of adjudication exists as a way
of “empowering individuals to make authoritative determinations of the question weather, on a
particular occasion a primary rule has been broken”6. In other words, the rules of adjudication
define the individuals (judges) that have the power of determining weather a primary rule was
broken and the procedure to be followed in order to make such determination.

After explaining and defining the primary rule and the three types of secondary rules as
understood by Hart, it is at this moment that an analysis of the empanada situation as far as how it
relates to the rules can be conducted.

Firstly, it is evident that the prohibition of buying food from illegal street vendors occupying
public space fits into the category of a primary rule; it is a law that imposes the duty of not
buying food from that provenance, it is a clear command to not do something and as such, it fits
into the definition of what a primary rule is. It is important to highlight that the previously
mentioned law is encapsulated within a much broader law, which is the “Codigo de Policia” 7, it
can thus be argued that the primary rule is the “Codigo” and not the specific article prohibiting
the purchase of food from illegal street vendors, nonetheless and whatever the case, it is clear that
a primary rule exists in this situation.

4 Ibídem, Pg 95
5 Ibídem, Pg 95
6 Ibídem, Pg 97
7 http://leyes.co/codigo_nacional_de_policia/140.htm
Juan Manuel Jaramillo 201729738

We must now analyze the three secondary rules and if they are present and what their role is in
relation to the law in question. As far as the rule of recognition goes, it is clear that the “Codigo
de Policia” is equipped with the legitimacy that is necessary in order to fulfill the rule of
recognition. The fact that the “Codigo” was created, debated and ultimately sanctioned by
congress8 means that it possesses an “authoritative” status, that is to say, people recognize that
the “Codigo de Policia” can be used as a “source for the conclusive identification of the primary
rules of obligation”9

In what concerns the rules of change, it is clear that in this case lawmakers have the authority to
create, modify or eliminate the “Codigo de Policia”. The fact that this “Codigo” was created only
in 2016 shows that the primary rules present in the “Codigos de Policia” can be modified and
eliminated. In other words, if we understand the “Codigo de Policia” as a primary rule or as
including multiple primary rules within it, it is clear that it can be altered, therefore, as a primary
rule, it “follows” the secondary rule of change.

Lastly we have the rule of adjudication. In this particular case there is a twofold approach as to
how we can understand this rule. Firstly, we can say that policeman have the authority to
determine when a rule present in the “Codigo” has been broken. Because it is their duty to
enforce the code, they are responsible for deciding when one of the rules present in it has been
disobeyed. Secondly, we can also say that judges have the authority of not only determining
when a rule has been broken, but also of eliminating a rule if they deem it unconstitutional.
Whatever the scenario, it is clear that there are individuals with the authority to not only
determine when a rule has been broken, but also to, when it is needed, determine the penalty to
pay as a consequence for violating said rule.

It is clear that the law prohibiting citizens from buying food from illegal street vendors occupying
public space, and in broader terms the “Codigo de Policia” as a whole, has the characteristics
necessary to be deemed a primary rule. It is also evident that this primary rule is supported by the

8 Ley 1801 de 2016

9 Hart, The Concept of Law Pg 95
 Juan Manuel Jaramillo 201729738

three secondary rules proposed by Hart, and that all three of them in this case work in the way
Hart envisions them. This means that the Colombian legal system, in this case represented by the
“Codigo de Policia”, as far as the union and relation between primary and secondary rules in this
case is concerned; work appropriately, for it follows the precepts put forth by the British author.

After analyzing the primary rule and the three secondary rules Hart proposes and their relation
with a specific law, we can now begin to evaluate the difference the author notes between having
the obligation to do something and feeling obliged to so something. For this, it is imperative that
we highlight the fact that the specific law, prohibiting people from buying food from legal street
vendors occupying public space has recently been under immense scrutiny and criticism, the
general feeling of the Colombian population is that the law in unfair, exaggerated and overall just
plainly unnecessary.10

Once the position of the citizens towards the law has been explained, we can now begin to define
and analyze what Hart means by the obligation to do something vs feeling obliged to do so. The
author states “thus the statement that a person had an obligation (…) remains true even if he
believed (…) that he would never be found out and had nothing to fear from disobedience”. 11 In
other words, in the eyes of the author, an obligation to do something arises when both the person
individually and the society he lives in, recognize the fact that the law that gives birth to said
obligation is legitimate, appropriate and should be followed,12 even if it represents a sacrifice.13

Conversely, Hart describes “feeling obliged to do something” as seeing it necessary to follow a

rule not because one believes in it or finds it appropriate, but rather because of the fear of the
possible consequences in the case that one does not follow the rule. 14 In other words, the
difference between having the obligation to do something and feeling obliged to do that same
thing rests in the fact that for the former, there is a belief that that obligation is fair, appropriate
and positive for society, while for the latter the belief the obligation is “good” is nonexistent, the

10 Semana. "Convocan a Marcha Para Legalizar Empanadas Callejeras." Semana. February 16, 2019. Accessed February 20, 2019.
https://www.semana.com/confidenciales/articulo/en-defensa-de-empanadas-callejeras-convocan-a-marcha/601786
11 Ibídem Pg 83
12 Blackman, M. S. (1977). Hart's Idea of Obligation and His Concept of Law. S. African LJ, 94, Pg 415.
13 Hart, The Concept of Law Pg 87
14 Ibídem, Pg 82
Juan Manuel Jaramillo 201729738

motivation to follow it rests in the fear of consequences in the case of disobedience, not in a
conviction in the obligation as such.

Of the two definitions outlined, it is clear that generally, the citizens of Colombia would fall
under the category of “feeling obliged” to follow the law and not of having an obligation to
follow it. This then creates a very important question: Does the fact that the general population
feels obliged to follow a law rather than feels an obligation to follow it affect the validity of the
legal system the law is embedded in? Hart has a categorical answer: No. In the eyes of the author,
a legal system requires of two things in order to exist, that the primary rules are generally obeyed
and that the secondary rules are “effectively accepted as common public standards by (the)
officials (of the legal system).” While Hart acknowledges that ideally people will follow their
obligations because they believe in them, he is emphatic in stating that that is in no way a
condition on which the validity of the legal system hinges, to him, what matters is that people
follow the rules, their motivations are of secondary concern.

The idea behind conducting an analysis of Hart´s propositions and evaluating them against a real
life situation was to see how they worked from a practical standpoint. What can be learned from
this exercise is that a law that follows Hart´s “rules” is valid within the legal system, even if
generally, people are not in agreement with the existence of said law. The legal system Hart
proposes therefore is one in which the public´s opinion is not of great importance, what matters is
their actions, the fact that they follow the rule, not that they agree with it. We were able to
conclude that the “empanada law” follows all the precepts outlined by Hart, and therefore, is
valid within the legal system. The role of the people, of the common citizen with regards to their
opinion about laws remains a point of contention. Should people be forced to comply with laws
they don’t agree with? Are laws that are generally considered “unfair” or “unjust” still valid?
Hart´s answers as we have seen, are clear, definitive answers that put to rest this debate, are
however, still nonexistent. They might always be.