1- Distinguish between the separability thesis, the pedigree thesis, the

discretion thesis
Separability thesis denies the existence of necessary moral constraints on the content of law.
This approximates to what is often called the ‘social thesis’ that law may be identified as a social
fact without reference to moral considerations. In its most general form, the separability thesis
asserts that law and morality are conceptually distinct. This abstract formulation can be
interpreted in a number of ways. For example, Klaus Faber interprets it as making a meta-level
claim that the definition of law must be entirely free of moral notions. This interpretation implies
that any reference to moral considerations in defining the related notions of law, legal validity,
and legal system is inconsistent with the separability thesis.
More commonly, the separability thesis is interpreted as making only an object-level claim about
the existence conditions for legal validity. As Hart describes it, the separability thesis is no more
than the “simple contention that it is in no sense a necessary truth that laws reproduce or satisfy
certain demands of morality, though in fact they have often done so”. Insofar as the object-level
interpretation of the separability thesis denies it is a necessary truth that there are moral
constraints on legal validity, it implies the existence of a possible legal system in which there are
no moral constraints on legal validity.

Pedigree thesis articulates necessary and sufficient conditions for legal validity in respect of
how or by whom law is promulgated. Positivism supplies a rival explanation in the form of the
pedigree thesis, which finds legal validity on the manner, form, and source of promulgated
norms. Thus for Austin a proposition is legally valid only if it is promulgated by a ‘sovereign’ who
is habitually obeyed, but who is not in the habit of obeying any other person; and is backed up
by the threat of a sanction (see 3.4.5). Hart, as will become evident, is less concerned with who
promulgates the law than with the manner of its promulgation. Though classical positivists such
as Austin diff er in several respects from Hart and his account of the pedigree thesis, both
subscribe to the view that law is created by human beings through acts that may be described
as ‘official’. For Austin, they are official because they have been performed by the sovereign; for
Hart, because they meet the procedural (and perhaps also the substantive) requirements of the
rule of recognition.

Discretion thesis asserts that judges decide hard cases by making new law, according to
which judges decide difficult cases by making new law in the exercise of discretion. Ronald
Dworkin describes this thesis as follows:

The set of these valid legal rules is exhaustive of ‘the law’, so that if someone’s case is
not clearly covered by such a rule . . . then that case cannot be decided by ‘applying the
law.’ It must be decided by some official, like a judge, ‘exercising his discretion,’ which
means reaching beyond the law for some other sort of standard to guide him in
manufacturing a fresh legal rule or supplementing an old one (Dworkin 1977, p. 17).
On this view, a judge cannot decide a case that does not fall clearly under a valid rule by
interpreting or applying the law; she must decide the case by creating or promulgating a law that
did not exist prior to the adjudication. Thus, the discretion thesis implies that judges are
empowered with a quasi-legislative lawmaking authority in cases that cannot be decided merely
by applying law.

Though often associated with positivism, the discretion thesis does not belong to positivism’s
theoretical core. The pedigree and separability theses purport to be conceptual claims that are
true of every possible legal system. These two claims jointly assert that, in every possible legal
system, propositions of law are valid in virtue of having been manufactured according to some
set of social conventions. On this view, there are no moral constraints on the content of law that
hold in every possible legal system.

2- Explain the minimum content of natural law according to Hart

Hart’s formulation of the ‘minimum content’ of natural law is therefore a recognition of the fact
that in order to survive as a community certain rules must exist. These are a consequence of
the ‘human condition’ (he is strongly influenced here by David Hume) which Hart sees as
exhibiting the following fundamental characteristics:
● ‘Human vulnerability’: Not having exoskeletons like shellfish, human beings are vulnerable to
attack. If law is to promote human survival, it must contain certain prohibitions against violence
because we are all susceptible to physical attacks.
● ‘Approximate equality’: Even the strongest must sleep at times. Despite differences in
capacity, no individual is so much more powerful that he can dominate others for any significant
length of time. A system of mutual forbearance is mutually beneficial in promoting the survival of
all. A legal system must therefore ensure mutual abstinence from inflicting harm.
● ‘Limited altruism’: We are, in general, selfish. Men are a mean between two extremes. They
are neither devils nor angels. This makes a system of mutual forbearance both necessary and
possible. If men were angels, such a system would be unnecessary. If they were devils bent on
mutual destruction, regardless of the cost to themselves, it would be impossible.
● ‘Limited resources’: We need food, clothes, and shelter and they are limited. It is a contingent
fact that human needs, like shelter, food and clothing are not found in limitless abundance. This
fact makes ‘indispensable some minimal form of the institution of property’.
● ‘Limited understanding and strength of will’: We cannot be relied upon to cooperate with our
fellow men. Finally, human beings do not always recognise that their long-term interests are
best served by conformity to these laws, and often so fail to sacrifice their short-term interests
for their long term interests, indicating that their understanding is limited. Besides limited
understanding, human beings often suffer from limited strength or goodness of will. As a result
of limited understanding and strength of will, a legal system must contain sanctions which serve
to deter those who would try to obtain the advantages of the system without submitting to its
obligations.
Because of these limitations there is a necessity for rules which protect persons and property,
and which ensure that promises are kept. But, despite this view, Hart is not saying that law is
derived from morals or that there is a necessary conceptual relationship between the two. Nor is
he suggesting that if we accept his ‘minimum content’ of natural law this will guarantee a fair or
just society.
3- What are the primary rules and secondary rules
Primary rules prescribe ‘the free use of violence, theft and deception to which human beings
are tempted but which they must, in general, repress if they are to coexist ( ko e exit) in close
proximity to each other’. According to Hart’s definitions, 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. When we think of something being against the law, or required by the law, we are
generally in the realm (relm) 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.
Secondary rules on the other hand, set up the procedures through which primary rules can be
introduced, modified, or enforced. Secondary rules can be thought of as rules about the rules.
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.

4- Identify the defects of primary rules as described by Hart

In Hart's view, a society might live only by primary rules of obligation, but will suffer from three
defects: there will be uncertainty as to what the rules are and their scope; the rules will be static
insofar as there is no means of deliberately eliminating or introducing rules; and, the social
pressure by which rules are maintained will be inefficient because there is no agency for finally
settling disputes over violations of the primary rules." These defects may be remedied by
secondary rules that "specify the ways in which the primary rules may be conclusively
ascertained, introduced, eliminated, varied, and the fact of their violation conclusively
determined." Thus, a secondary rule of recognition will remove the uncertainty of the regime of
primary rules by providing a rule for conclusive identification of the primary rules of obligation."
Secondary rules of change will remedy the static character of primary rules by empowering an
individual or body to introduce new primary rules of conduct for the group, or for some class
within it, and to eliminate old rules." The remedy for the inefficiency of the social pressure is
secondary rules of adjudication empowering individuals to determine authoritatively whether, on
a particular occasion, a primary rule has been broken. ' Hart concludes that "[t]he introduction of
the remedy for each defect might, in itself, be considered a step from the pre-legal into the legal
world," and that "certainly all three remedies together are enough to convert the regime of
primary rules into what is indisputably a legal system."' The "union" of primary and secondary
rules may be regarded as the "essence" of law," for a modern municipal legal system will
combine both kinds of rules, and the secondary rule of recognition will unite all the rules of the
system in that all genuine laws will satisfy the criteria of validity specified by the rule of
recognition.
5- What is rule of recognition? (reken-nation)
The rule of recognition is essential to the existence of a legal system (and is considered further
below). It determines the criteria by which the validity of the rules of a legal system is decided. it
requires those who exercise public power (particularly the power to adjudicate) to follow certain
rules. This gives rise to an element of circularity16 for the criteria for recognizing the validity of
certain rules necessarily include—as a criterion of validity—the valid enactment of rules by the
legislature in exercising its power conferred by the rule of change. But the rule of recognition
presupposes the existence of judges whose duties are laid down by the rule of recognition. And
these judges are empowered by a rule of adjudication. But this rule of adjudication is valid only if
it satisfies some criterion of the rule of recognition. And, as just stated, the rule of recognition
presupposes judges.
6- Discuss some criticism on HLA Hart’s concept of law
Hart’s concept of law is based on distinction between rules creating rules and rules creating
power. But some rule may create duty and power. Fuller says the same rule may create power
and duty. E.g. a trust instrument may give the beneficiary power to transfer the estate to him on
a certain condition. The trustee is entitled to reimbursement. E.g. the duty of a judge is to hear a
case- duty and power. L.J Cohen criticizes Hart when he regards the laws which provide for
wills, trusts, contracts or marriages as giving power to a person to legislate for himself. Cohen
says that in such cases, the individual has capacity rather than power. In any case, the private
individual cannot amend his laws, whereas the law-making authority can always do so. Powers
can be delegated but capacities are never delegated. Cohen says that is not rules that confer
power whether public or private: they set up criterion. He reduced Hart’s claim to that of the
addition of a constitution setting up legislature, executive, judiciary as the most important
element in the transition from a pre-legal to a legal system. Dworkin criticizes Hart on the
separation of law and morals. He says that there is no rule of recognition which distinguishes
between legal and moral principles. A judge in a hard case must appeal to extra-legal principles
which will include his own conception of what is the best interpretation of the great network of
political structures and decisions of his community. Fuller says it is not only the meaning of
single words but sentences and paragraphs which require interpretation. It is always a search
for purpose, according to Fuller. To cure the defect of uncertainty, he introduces the rule of
recognition which identifies and validates all other rules of the legal system. RR make law
certain. But how can uncertain law be law at all. Dworkin argues that H’s RR are either created
by Parliament or judges and officals, whereas principles are neither created by Parliament nor
judges. When jduges creates an original precedent it does not exists before in the legal system.
According to Dworkin, principle exist not because of particular decision of some legislature or
court, but in a sense of appropriateness developed in the profession and the public overtime.
7- Explain Hans Kelsen’s pure theory of law
The pure theory is a subtle and profound statement about the way in which we should
understand law. And we should do so, he argues, by conceiving it to be a system of ‘oughts’ or
norms. But Kelsen acknowledges that the law consists not merely of norms, but ‘is made up of
legal norms and legal acts as determined by these norms’.38 In other words, legal norms (which
include judicial decisions and legal transactions such as contracts and wills) when acted upon
also describe actual human conduct. Even the most general norms describe human conduct.
Thus: Kelsen’s observation that the legal scientist is not concerned with human conduct but is
only concerned with norms may have obscured from view the important point that so far as
human conduct features in a norm as condition or consequence such conduct falls foursquare
within the concerns of the Kelsenian legal scientist. Kelsen permits of a greater degree of
reference to actual human conduct than is sometimes perceived by those who would label his
contribution as ‘sterile.’ 39 Indeed, it has been argued that Kelsen’s attempt to understand and
explain the ‘science of the mind and of meaning and of values as instantiated in actual human
societies’ is ‘the only jurisprudence ever to take sociology seriously’.40 He was, it has been
suggested, ‘engaging in sociology when writing his Pure Theory, notwithstanding his indignant
denials’.
The pure theory of law should be distinguished from the philosophy of justice. While the pure
theory of law is a science, justice is an "irrational ideal" and "a judgment of value, determined
by emotional factors and therefore subjective in character." The pure theory of law must also be
distinguished from sociological jurisprudence. The pure theory of law studies
norms-"propositions that state how men should behave" -whereas sociological jurisprudence
studies what "is"-how people actually behave. Thus, Kelsen agreed with neither the natural law
theorists, who viewed law and morality as sharing the same basis,8 nor the legal realists, who
believed that law consists solely of "the actual decisions of courts that litigants must live with."
8- What is Grundnorm?
Grundnorm is a German work which means fundamental norm, rule or order that forms the
underlying principle for a legal system. It is the source of the validity of positive law upon which
validity of all laws is dependent. According to Kelsen, it is the ultimate norm that confer validity
upon norms. There is no higher norm than grundnorm. The grundnorm can only be challenged
by a political revolution. The basic norm is the content of the presupposition of the legal validity
of the first, historical constitution of the relevant legal system. The basic norm constitutes the
final standard of legal validity, but its own validity cannot be objectively tested. Its validity,
Kelsen says, must be presupposed or assumed. In other words it can be said that for a law to
be valid it should be in conformity with the basic structure, which means that if the law is
obeying the set parameters and standards of the Grundnorm the law will be valid. the purpose
of Kelsen’s basic norm is to portray the unity of the legal system, the fact that all its norms trace
validity from a single source and continues to do so if they are to be considered part of the same
legal system. Kelsen’s theory of Grundnorm or Pure theory of law is not a balanced view of law
as it only emphasizes on the coerciveness of legal norm. Hart’s theory is more convincing than
him because Kelsen only focused on law which are sanctioned by officials while Hart on the
other hand focuses on both soft & hard positivism.
9- Distinguish between Hart’s concept of rule of recognition and Kelsen’s
concept of grundnorm?
Hart, in short, agreed with Kelsen that the law claims a kind of authority, a right to tell people
what they ought (or ought not) to do, not simply what they must (or must not) do on pain of
penalty. Hart’s solution to the problem that Kelsen identified is, however, very different. Hart
claimed that wherever a legal system exists, there also exists a “rule of recognition” that
specifies the criteria of legal validity that any rule must satisfy in order to count as a rule of that
legal system. But a rule of recognition is not a Grundnorm, a transcendental presupposition of
legal thought. It is rather a complicated psychosocial phenomenon (an instance of what Hart
called a “social rule”) whose existence and content are established by the sociological fact that
officials of the legal system converge on certain criteria of legal validity and by the psychological
fact that such officials view those criteria as obligatory.
10- Discuss some critic on Kelsen’s pure theory of law
Especially the critics have been criticizing for the concept of ‘Grundnorm’. They say that Kelsen
have not provided any minimum criteria for the concept of Grundnorm. The efficiency of the
concept depends upon sociological factors. However, Hans Kelsen himself have omitted those
sociological factors. For social disciplines such as psychology, sociology, politics Pure Theory of
law is insufficient as they are rejecting these disciplines. However, for today’s modern law these
sociological disciplines are very important. Therefore the critics say that Kelsen’s pure theory of
law is not fit to the modern world. Also international law does not fit into the pure theory of law.
As a result, it should be taken as a limitation of the theory. For these reasons the critics say that
pure theory of law can only be in use for the legal scientists not for the legal judges. Although
Pure Theory of Law have strengthened and enriched the jurisprudence by bringing the concept
of unity into the legal system and an organized mechanics of legal systems operation.