The concepts of law – certain matters that influence human behaviour – social habits and social

rules.

SOCIAL HABITS

Habits are not rules – the omission of the rules will not be regarded as a fault, nor render them liable
to criticism

No member of the group may be conscious of the habit – members of the group do not in anyway
consciously strive to see the habit is maintained.

SOCIAL RULES

A rule that if someone breaks the rule will regarded as a fault, and renders the offender liable to
criticism

At least some members of the group must be aware of the existence of the rule, and must strive to
see that is followed as a standard

The Internal Aspect of the rules – awareness of and support for.

The External Aspect of the rules - Social rule will be observable by anyone looking at the group from
outside. Rules can be observed to exist by an outsider.

 Social Habits are observable by an outsider, but the group is not aware of them – they have
an external aspect but not a internal one.
 Social rules have both external and internal aspect.

Social Rule – ought, must, should. Social Rules has two kinds.

Social Conventions – these are more than habits, as a group strives to see that rules observed

Rules Constitute obligations - as a group strive to see that the rules are observed ( regarded as
important because they are believed to be necessary to maintain the very life of the society) – often
involve some sacrifice on the part of the person who has to comply with rule for the benefit of the
others in the society.

OBLIGATIONS (serious social pressure to conform the social rule thus makes it obligation)

Sub divided into two categories

 Rules which form part of the moral code of the society concerned

These rules are moral obligations, maybe wholly customary in origin, no central body responsible for
punishing.

Only form of pressure for conformity being a hostile reaction, the pressure for conformity may take
the form of words of disapproval, inducing feeling of shame, remorse, guilt in the offender.

 Rules which take the form of law

A rule will come into this category if the pressure for conformity includes physical sanctions against
person who breaks the rule. Can be applied by community at large.
PRIMARY & SECONDARY RULES

Primary Rules

A rule which tells people to do things or not to do things, they law down duties. Concerned with
what people must do or must not do.

Conditions that a society that relying on primary rules obligations must satisfy.

 Must include rules contain restrictions on violence, theft, and deception

 The minority may object/reject the rules, but the majority must accept the rules.

 The society must be small with close ties of kingship, common sentiment, and beliefs.

 The society must live in a stable environment.

If either of the last two condition were not satisfied, the society could not continue to exist with
primary rules.

Defects of Primary Rules.

 There is no means to resolve uncertainty. There would be no procedure for determining

what the rules were.

 The rules would be static. There is no means to alter the rules according to change of society
perspective.

 There is no means to settle a dispute to as whether a rule has been breached or not.

 No one with authority to impose punishments. Only way of punishment is diffuse social
pressure or by punishment meted out by individuals or by the group as a whole. Punishment
inflicted by individuals might lead to vendettas.

Secondary Rules

Are ones which let people by doing certain things, introduce new rules of the first kind, or alter
them.

Secondary rules are concerned with the primary rules in that they law down the ways in which
primary rules may be introduced, varied, and abandoned. The way in which primary rules may be
ascertained; and the way in which it can be decided whether a primary rule has been broken.

Secondary Rules as the remedy for primary Rules.

 The defect of uncertainty – can be remedied by having secondary rules which provide a way
of knowing whether a suggested rules is or is not in fact a rule of the group.
A secondary rule which enables one to know what the primary rules are (rules of recognition).

 The defect of rules are static – by having a secondary rule that provide for ways in which the
primary rules can be changed
Rule of this kind may specify the persons who are have power to alter the law and law down the
procedure to be followed in order to do so (Rules of Change)

 The defect of no means to know a rule been breached or not – by having secondary rule
which enable any individual to find out whether or not a primary rule has been broken
Such rules can down to who is to decide this and any procedure which must be followed (Rules of
Adjudication).

 The defect of no authority figure to impose punishment – by having a secondary rule which
prohibit individuals from taking into their own hands the punishments of others.
provide an official system of penalties that administered by officials (sanctions of the system)

Combination of primary rules and secondary rules of recognition, rules of change, rules of
adjudication and sanction imposing rules makes up the heart of Hart’s legal system.

RULES OF RECOGNITION

Hart says people have a way of finding out what the primary rule with rule of recognition
a rule of recognition ( enabling people to know what is law and which is not) is in practice expressed
as an actual law.

Is there one rule of recognition or may there be more than one?

- There may be several – the constitution, legislation, and judicial decisions (each of these can
provide authority for establishing the validity of a law)

- There can be only one – which establishes the supreme source of authority for legal validity.
a rule that may have subsidiary rules, but which lays down the order of priority between
them.

When a rule is said to be valid within any particular system that means that it complies with the
rules of recognition of the system.

The validity of a rule does not depend on the fact that the rule is obeyed. The validity of a rule and
the question whether it is obeyed are two separate matters. ( rule of obsolescence – a rule of
recognition that provides that if a rule is not obeyed over a long period of time it should cease to be
a rule)

Just because a rule of recognition is supreme, this does not mean that any legislative body
necessarily has unlimited power.

To recognize the supreme rule of recognition there must be no rule of recognition to the test the
validity of this rule. We say that the law is valid because it complies with the rule of recognition of
the system but not question should not arise to the validity of the rule of recognition itself.

VALIDITY is ASSUMED but CANNOT BE DEMONSTRATED.

A rule of recognition does not fit into any of the conventional categories used in classifying laws in a
legal system. Rule of recognition is both law and fact.
The best way of understanding the nature of rule of recognition is to regard it as being capable of
being looked from two points of view. From an external point of view and from an internal point of
view.

Internal point of view & External point of view

Internal – when people accept something as law because parliament has said so and they accept this
as a rule of recognition they are looking at the rule from internal point of view.
it is internal because it looks at the matter from the viewpoint of people inside the legal system and
hey accept that Rule of recognition.

External – when people say in Britain the accept as law whatever the Queen in Parliament enacts,
some one who is an outsider who does not accept the British rule of recognition they are looking at
the law as an external point of view.
external point of view that of an outside observer who notes that as a matter of fact, the rule exists
in the actual practice of the system.

Hard positivism & Soft positivism

Rule of recognition as that which constitutes the criteria for the identification of the laws which
courts have to apply (source of law)

What can these criteria include?

Hard Positivist – must be precisely identifiable for example from sources that are written down such
as legislation

Soft Positivist – can be found from a wider area and can include reference to principles or moral
values

Legal System

When that a legal system exists? – when the legal system has a healthy independent existence.

For a society to have a legal system certain condition must be satisfied

 Laws which are valid according to the system’s rule of recognition.

 The relationship of the officials to the secondary rules must be one of acceptance (officials
should collectively accept the secondary rules)

For these conditions to be satisfied private citizen need only obey. Officials must both obey and
accept.

Officials should accept and obey the secondary rules because a person who obeys a rule does not
necessarily accepting the rules as being a correct one. He can obey the rule out of laziness or out of
fear. He can obey the rule without thinking about whether the rule is correct or not.

Thus, the officials must regard the rules of recognition as a common standard for making judicial
decisions. Without this common standard there would be conflicting judicial decisions and orders
and ultimately there would be chaos.
For a legal to exist the secondary rule must be accepted by the officials and the primary rules must
be obeyed by the majority of the citizens.

Breakdown of a legal system

It may happen that the officials still accept the secondary rules, the citizens cease to obey the
primary rules (expl : revolution/ Enemy occupation/general breakdown)

It is not possible to say precisely what moment the previous legal system ceases to exist.