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THE CONCEPT OF LAW- CHAPTER 5- LAW AS THE UNION OF

PRIMARY AND SECONDARY RULES- H.L.A. H.L.A. HART

In the previous chapters, H.L.A. Hart attempted to rid us of the influence of the orders
backed by threats theory and forwarded various criticisms of that theory. In this
chapter H.L.A. Hart presents the central features of law, as he sees them. Here, he
inculcates the idea of obligations and rules conferring power. Basically, H.L.A. Hart
takes the stance that a society that only has rules that are duty imposing would not
truly be a true legal society. It would be pre-legal wrought with defects.

To cure these, H.L.A. Hart introduces three power conferring rules different from
primary rules which he terms secondary rules. He feels that it is this union of the
primary and secondary rules that constitute law. It is through the introduction of
these ideas that H.L.A. Hart believes that he has found the “key to the science of
jurisprudence.”

For H.L.A. Hart, “the root cause of the failure [of the Austinian model] is that the
elements out of which the theory was constructed, viz. the ideas of orders, obedience,
habits and threats, do not include, and cannot by their combination yield, the idea of
a rule, without which we cannot hope to elucidate even the most elementary forms of
law”.

We shall now study these ideas in slight detail.

H.L.A. Hart states at the forefront that the idea of a rule is not an easy one to develop
or to elucidate but states that without the notion of the rule ‘we cannot hope to
elucidate even the most elementary forms of law.’

H.L.A. Hart creates a distinction between various types of rules and states that there
are two types of rules. The first of these are primary rules; these concern actions
involving physical movement or changes, human being are required to do or abstain
from doing something. H.L.A. Hart fashions the second type of rules as secondary
rules that are “in a sense parasitic or secondary to the first; for they provide that
human beings may by doing or saying certain things introduce new rules of the
primary type, extinguish or modify old ones, or in various ways determine their
incidence or control their operations.”

The idea of an obligation

H.L.A. Hart agreeing with the OBT model agrees that where there is law, human
conduct becomes obligatory in some sense. Yet he states that there is a difference in
being obliged as the gunman obliged his victim and there being an obligation upon
someone. “The statement that a person was obliged to obey someone is, in the main, a
psychological one referring to the beliefs and motives with which an action was done.

MOIZ AHMED.
BARRISTER-AT-LAW
ADVOCATE HIGH COURT.
M.A. (INT’L RELATIONS)
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But the statement that someone had an obligation to do something is of a very

different type and there are many signs of this difference.”

For example, if one had to report for service, the idea that he was obliged to report
carries with it the idea that the person actually reported for it. However, if we say that
one was under an obligation to report for service, it does imply that there was some
sort of requirement to be fulfilled but it does not mean that the person actually did it.
Hence, we can treat the existence of an obligation as a psychological phenomenon.
On the other hand, H.L.A. Hart feels that theorists like Austin, treat statements of
obligation “not as psychological statements but as predictions or assessments of
chances of incurring punishment or evil”.

For H.L.A. Hart the main objection for adopting this approach is the lack of
appreciation shown to the internal point of view towards rule following. Remember,
the example discussed in class about why someone would move the queen in a certain
way in a game of chess. There are other objections also. The idea that someone would
suffer a punishment as a result of rule breaking being equal to having an obligation is
not acceptable to H.L.A. Hart. He cites the example of an offender who bribes the
court and the police and gets away from punishment. If this were true then being in an
obligation would seem like an obvious contradiction.

It is of course an acceptable thought that the statement of a person having an

obligation and the statement that the person would suffer for disobedience will both
be true together. In fact this idea needs to prevail for the idea of obligations to work
out.

H.L.A. Hart concludes that the idea of an obligation is not present in the gunman
situation.

As you should know by now, H.L.A. Hart was a keen observer and critic of John
Austin’s theories on law. H.L.A. Hart claimed that Austin’s ideas of orders,
obedience, habits, and threats were insufficient. He believed that any legal system
could only become a viable modern legal system if it incorporated the idea of rules.
As per Austin’s criticism, H.L.A. Hart stressed that a legal system was based on the
union of primary and secondary rules. Austin’s model only incorporated primary rules
and that once secondary rules were added, it would reflect a move from the pre-legal
to the true modern legal system.

Elaboration of Primary and Secondary Rules

Before embarking further into the discussion of the problems that H.L.A. Hart cited in
Austin’s theory, it is important to elaborate on the two types of classifications that
H.L.A. Hart developed. The primary rules that H.L.A. Hart cites are those that
Austin’s theory is based upon. These are rules which stipulate what “human beings
are required to do or abstain from certain actions, whether they wish to or not”.

MOIZ AHMED.
BARRISTER-AT-LAW
ADVOCATE HIGH COURT.
M.A. (INT’L RELATIONS)
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The secondary type that H.L.A. Hart uses to elaborate Austin’s theory are rules which
are to “introduce new rules of a primary type, extinguish or modify old ones, or in
various ways determine their incidence or control their operations.”

H.L.A. Hart uses language of this type to illustrate the “parasitic nature” or the
dependence of secondary rules upon the primary rules.

Aims

H.L.A. Hart’s aim in introducing the primary and secondary rules as a combination
was to discover, “the key to the science of jurisprudence” which he states that Austin
had claimed to have done mistakenly. H.L.A. Hart claimed that Austin here was only
referring to primary rules (coercive order). H.L.A. Hart claims that the interplay of
these two rules will clarify most features of law which have perplexed and eluded
definitional categorization. These two concepts would, although not define, but would
in turn elucidate legal concepts and explain their workings in the framework of legal
thought.

H.L.A. Hart, like Austin, claims to premise his model of the legal system as the
“correct appreciation” that for law to be present in any society, there is bound to be
some obligatory human conduct.

Hart’s Approach

H.L.A. Hart claims that Austin’s model was one (using the gunman example) where
people were obligated to follow orders through fear of coercion of the habitually
obeyed sovereign. For H.L.A. Hart, a legal system having primary and secondary
rules must be based on the understanding of the idea of obligation as opposed to being
obliged.

Theorists like Austin premised their theories on the notion of being obliged denoting a
psychological element out of the fear for an immediate threat of violence and that was
the only factor. However, for H.L.A. Hart, being under an obligation entails an
element similar to that of a duty that will remain there until fulfilled regardless of an
element of fear of being caught. (For example a man under an obligation to report for
military service, runs away and is never caught, still the obligation remains).
However, it will generally be witnessed that where there is an obligation, their will be
a coercive (evil) act attached in the case of disobedience in a modern municipal
system.

H.L.A. Hart states that being under an obligation denotes the existence of a rule,
however, where rules (such as social rules of taking off one’s hat before entering a
church) are present; there might be instances where there is no obligation.

For H.L.A. Hart, rules will carry obligations when the social pressure attached to
them as a result of an act of deviance is “great.” The seriousness of social pressure
determines whether rules are “thought of as giving rise to obligations”
MOIZ AHMED.
BARRISTER-AT-LAW
ADVOCATE HIGH COURT.
M.A. (INT’L RELATIONS)
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Defects of Pre-legal Societies:

When a society has moved from the pre-legal to the truly legal society, i.e. it becomes
a society where people instead of following mere habitual inclinations, start following
rules; here the follower starts thinking in terms of obligations. Here, these people can
be said to have an internal point of view enabling (them) a group of people to know
that they are following rules not because of the threats of a sanction (like a Martian),
which would be the external point of view, but because they knew that they are under
an “obligation” to follow rules for the benefit of all from an internal point of view.

For H.L.A. Hart, in pre-legal societies there were only habitual rules which were
based on small communities, closely knit by ties of kinship and could survive
successfully by following the orders of a sovereign under fear of sanctions. H.L.A.
Hart argues that if doubts arise as to what the rules are or as to the precise scope of
some given rules, there will be no procedure for settling this doubt, either by reference
to an authoritative text or to an official system whose declarations on this point are
authoritative. This analysis by H.L.A. Hart entailed that in such societies, there was
the defect of UNCERTAINTY.

Further, there would be no dynamic rules allowing for the alteration (eliminate old
rules and replace them with new ones) of set rules to suit new requirements.

Hence, the society would not be progressive and become STATIC.

Finally, when disputes arise about whether a certain set of rules have been violated, as
there will be no set agency to adjudicate on them, there will be confusion that will
continue interminably. This question will be left to the group at large. This, H.L.A.
Hart calls, the problem of INEFFICIENCY.

[You are required to analyse whether these deficiencies actually exist in the Society
that Hart earlier described in which Rex was the Ruler who was also onerous,
described in chapter 4]

To deal with these issues in the pre-legal world, H.L.A. Hart came up with what we
know as the secondary rules that are power-conferring as opposed to the duty
imposing ones from the pre-legal world.

To deal with uncertainty, there is the rule of recognition which, by conferring power
on people to identify the law for certain through the institution of criteria of legal
validity, ‘cures’ the ‘defect’ of uncertainty.

To encounter STATICITY, there are rules of change that introduce private and public
powers of legislation and repeal and ‘cure’ the defect of the lack of progress.
MOIZ AHMED.
BARRISTER-AT-LAW
ADVOCATE HIGH COURT.
M.A. (INT’L RELATIONS)
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Finally, he introduces the rules of adjudication and these ‘cure’ the defect of
inefficiency by introducing the courts and other institutions of law enforcement.

Criticisms

The question to ask now is whether H.L.A. Hart’s depiction of the union of primary
and secondary rules gives a model which is sufficient to explain the modern legal
world? Moreover, whether there could be further requirements to complete his model
just like as H.L.A. Hart felt that there were deficiencies in Austin’s model and needed
to be enhanced?

Critics like Ronald Dworkin thought so. Dworkin believes that in the modern legal
system, apart from legal rules there were principles that played a vital role. (Riggs V
Palmer, where a rule of law was not followed and the principle (maxim) that no one
could benefit from his own wrong was applied). In the case of officials like judges,
Dworkin states that it is principles of stare decisis and parliamentary sovereignty that
there judges follow to apply rules i.e. statutes and prior decisions.

It can perhaps also be said that a perfect legal order cannot exit and a critic will not be
hard to find in coming to a descriptive account of any such order. For example for
Muslims, the law of the Shariah enacted centuries ago by Muslim jurists still holds
true and for many Muslims, that system in its entirety remains the ‘perfect-system’
capable of dealing with any situation. This supposition might even be supplanted
upon hardcore followers of other faiths. However, for many this cannot hold true as
time and circumstances have altered considerably and continue to do so.

Also see the following links for a detailed commentary on the union of primary and
secondary rules:
1. http://books.google.com.pk/books?
id=Hxas3gfVQhUC&pg=PA46&lpg=PA46&dq=union+of+primary+and+sec
ondary+rules&source=bl&ots=Of-
PXNEyN0&sig=EhLHPignW_oX0oEVER-
uktGLI1s&hl=en&ei=4udKS_GsNoGC7QPX4PSDCw&sa=X&oi=book_resu
lt&ct=result&resnum=4&ved=0CBoQ6AEwAw#v=onepage&q=union%20of
%20primary%20and%20secondary%20rules&f=false
2. http://www.thedailystar.net/law/2006/05/04/opinion.htm (for criticism by
Mohammad Iftekhar Bin Salam)

MOIZ AHMED.
BARRISTER-AT-LAW
ADVOCATE HIGH COURT.
M.A. (INT’L RELATIONS)