jurisprudence - hart: primary and secondary rules

Who is associated with the theory

H.L.A Hart

Modern legal positivist

Writing in response to Austin’s Command Theory

Wanted to explain law as a system of rules not just coercion

Harts Criticism of Austin (starting point)

Hart argues Austin’s system fails because it cannot explain:

Continuity of law

Power-conferring rules

Legal obligation (not just fear)

The role of officials

Harts solution : law = union of primary and secondary rules

Primary rules

What are primary rules?

Rules that impose duties and obligations

Govern everyday behaviour

Examples

Criminal law

Traffic laws

Prohibitions on theft or violence

Secondary rules

Secondary rules are rules about rules

They solve the defects of a primary only system.

1. Rule of recognition

identifies what counts as valid law

used by officials (judges, lawyers)

validity depends on:

sources (e.g statute, precedent)

Not Moral content

Central to legal validity

2. Rule of change

   Explains how law can be:

   created

   amended

   repealed

   Solves the problem of rigidity

3. Rule of adjudication

   identifies who has authority to decide disputes

   establishes courts and procedures

   solves inefficiency

Why hart thinks this explains legal systems

Law is not just coercion

Law involves:

Acceptance by officials

An internal point of view

Explains:

Continuity of law

Power conferring rules

Legal obligation

Provides a more realistic account of modern legal systems that Austin

Internal vs External point of view

External : observing behaviour (fear of sanction)

Internal : officials accept rules as standards

Law requires internal acceptance not just obedience

Relationship between law and morality

Hart maintains separation of law and morality

Validity depends on social rules, not justice

Accepts a minimum content of natural law:

Based on human survival

Not moral necessity

Criticisms of Hart

1. uncertainty of the rule of recognition

   hard to identify in complex legal systems

   not written down

2. Morality “sneaking back in”

   judges may use moral reasoning in hard cases

   challenges strict separation of law and morality

3. Dworkins critique

   law includes principles not just rules

4. Judges don’t just apply rules they interpret moral principles

Overall evaluation

Hart significantly improves on Austin

Explains law as a system not just commands

Still faces challenges explaining judicial reasoning in hard cases

Conclusion

The distinction between primary and secondary rules is a major contribution to jurisprudence

It explains how legal systems operate in practice

While not immune to criticism, harts theory remains one of the most influential accounts of modern law