HLA Hart’s Concept of Law Summarized

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Law is to be analyzed in terms of rules which are largely based upon Hart’s theory of law. According to it, the rules are not concerned with what happens but with what has to be done. The Rules are imperative or prescriptive rather than indicative or descriptive. They have certain independence or self-legitimating character. Rules are different from commands. Commands usually call for one unique performance compared to rules which have a general application and demand repeated activity. In some cases, rules are constitutive and define the activity in a question like rules of a game while in others they regulate activities that would take place in any case whether the rules existed or not like rules of grammar, morals, and law. Rules of the game, the club, and the societies share the feature of rule of law and are also formal, therefore they are open to amendment by bodies authorized for this purpose, and some sort of adjudicating process is also found when there is any difficulty as to the meaning or the application of these rules. As against these rules of morality or law are not amenable to legislative alteration and are not resolvable by adjudication. Legal and moral rules both are invited. Obedience to them is non-optional. Rules of game and club have application only within a limited context and apply to the players only during the game. Law and morals are concerned with much broader aspects of life. Rules of games are not compulsory; withdrawal and resignation are permanent possibilities. In the case of morals, there is no such choice and it is largely true of law too. Thus, according to Hart, ‘Law consists of rules which are of broad application and non-optional character, but which are at the same time amenable to formalization, legislation, and adjudication.’

Rules are of two kinds – Primary and Secondary.

Primary rules regulate the behaviour of man in society. These rules either grant rights or impose obligations on the members of the society. E.g., Rules of criminal law forbidding murder, robbery, rash driving are the primary rules, tort rules, the individual right to freedom of speech, the provisions of contracts that define the primary obligations of the parties, the environmental law rule that forbids the discharge of toxic substances in rivers and streams, etc.

Secondary rules stipulate how and by whom the primary rules may be formed, recognized, modified, or extinguished. E.g., Contract law rules that enable parties to create contracts, the rules that allow testators to construct a will, the constitutional rules that confer legislative powers on Congress, the statute that authorizes the Supreme Court to promulgate rules of practice, and procedure for the federal courts.

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Hart’s basic idea is quite simple. Primary rules are rules of conduct; they tell you what you are legally obligated to do (or refrain from) and what consequences attach to obedience or disobedience. Thus, the criminal law rules prohibit theft, forbid certain conduct, and provide for penalties for violating the prohibition. Technically, the class of secondary rules includes everything except primary rules. For example, secondary rules are legal rules that allow for the creation, extinction, and alteration of secondary rules; secondary rules are power-conferring rules. Thus, contract law empowers individuals and firms to make contracts; contracts themselves are usually collections of primary rules. More precisely, primary rules are rules that govern conduct, and secondary rules are rules that do not. Thus, the distinction between primary and secondary rules is just a bit different than the difference between duty-imposing and power-conferring rules: duty-imposing rules impose duties, whereas power-conferring rules confer power. This leaves open the possibility that some rules can regulate other rules but do so by imposing duties. For example, a secondary rule might impose a duty to legislate in a certain way or a prohibition on certain kinds of rule creation. One of the nifty things about Hart’s introduction of the distinction between primary and secondary rules was his account as to why secondary rules are important. We can certainly imagine a system in which there were primary rules, but no secondary rules. This would be a system of customary law. Certain actions would be required; others would be taboo. But there would be no mechanism by which the set of obligations could be changed. Of course, customary law need not be completely static. Customs might gradually change over time, but this process would require a change in social norms. It could not be legislated. Secondary rules enable relatively more rapid legal change at a lower cost. Moreover, secondary rules enable individuals to create customized primary rules that govern their private relationships or privately owned resources.

Under primary rules, human beings are required to do or abstain from certain actions; secondary rules are in a sense parasitic upon or secondary to the first. The primary rules bind people whether they like or not, wish or not; secondary rules bestow facilities upon them for realizing their wishes. Primary rules are essential for social life whereas secondary rules are necessary for the development of a legal system.

Professor Ronald Dworkin criticized Hart for calling the legal system a system of rules and pointed out that the legal system does not comprise only rules but it consists of principles also. Sometimes these principles are more important than rules, for example, the Principle of Natural Justice which is elaborated in Maneka Gandhi v. UOI. The judiciary positively incorporates the Principle of Natural Justice. If rules and principles come into conflict then principles get an overriding effect overrules. Hart also failed to provide a true character of law but his contribution is noteworthy as a bridge-builder of natural law to positivism through the semi-Sociological school of law. Prof. Hart was active in promoting democratic socialism and other democratic causes for the left to the prevailing political centre and advocated privacy rights for homosexuals long before it was common to do so.


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