Primary and Secondary Rules in Hart’s Concept of Law

Herbert Lionel Adolpus (HLA) Hart is regarded as the leading contemporary representative of British positivism. He approached his concepts of law that where there is law, there human conduct is made in some sense non-optional obligatory. Thus the idea of obligation is at the core of a rule.

He commences in his book by criticizing Austin’s view of law as as command. The idea of command explained a coercive order addressed to another in special circumstances but not why a statute applies generally and also to its framers. He demolished the myth of tacit command which Austin’s habit of obedience fails to explained succession to sovereignty because it fails to take account of the important differences between habit and rules.

Hart made a distinction between basic (primary) rules and secondary rules. Under primary rules, human beings are required to do or abstain from certain actions whether they wish or not. Secondary rules are in a sense parasitic upon o secondary primary rights.

Primary rules lay down standards of behavior and are rules of obligation. They exist in a pre-legal state of community without a legislature, courts or officials of any kind. Secondary rules are ancillary to and concern the primary rules in various ways, for instance, they specify the ways in which the primary rules may be ascertained, introduced, eliminated or varied, and the mode in which their violation may be conclusively determined. Secondary rules are mainly procedural and remedial and include, but go far behind, the rules governing sanctions.

Primary rules impose duty, whereas secondary rules confer powers, public or private. He further expounded that primary rules concern on actions involving physical movement or changes, whereas secondary rules provide for operations which lead not merely to physical movement or change but to the certain creation, variation of duties or obligations as well. The union of primary and secondary rules results in law.

It is possible to imagine a society without a legislature, courts or officials of any kind. There are many studies of primitive communities which depict in detail the life of a society where the only means of social control is the general attitude if the group towards its own standard modes of behavior in terms of the rule of obligation. A social structure of this kind is often referred to as one of custom, but Hart preferred to refer to such a social structure as one of primary rules of obligation.

According to Hart, primary rules have three defects. The first defect in the simple social structure of primary rules is uncertainty. The rules by which the group lives will not form a system but they will simply be a set of separate standards without any identifying or common mark. They will resemble our own rules of etiquette.

The second defect is the static character or stationary. The only mode of change in the rules known to such a society will be the slow process of growth whereby courses of conduct once thought optional, become first habitual or usual and then obligatory, or when deviations once severely dealt with, are first tolerated and then passed unnoticed. In such a society, there will be no means of deliberately adapting the rules to change circumstances, either by eliminating old rules or intoducting new ones.

The third defect of the simple form of social life is inefficiency. Disputes, as to whether an admitted rule has or has not been violated, will always occur and will, except in the smallest societies, continue interminably of there is no agency specially empowered to ascertain finally and authoritatively the fact of violation. Punishments for violations of rules are not administered by a special agency but they are left to the individuals affected or to the group at large.

According to him, the remedy for each of three main defects in the simple form of social structure consists in supplementing the primary rules of obligation with secondary rules, which are rules of a different kind. The simplest form or remedy for the uncertainty of the regime of primary rules is the introduction of a rule of recognition which may take any of a huge variety of forms, simple or complex. Where there is such acknowledgement, there is a simple form of secondary rule for conclusive identification of primary rules of obligation.

The remedy for static quality of the regime of primary rules consists in the introduction of rules of change. The simplest form of such rule empowers an individual or body od persons to introduce new primary rules for the conduct of the life of the group, or of some class within it and to eliminate old rules. In the term of such a rule, the ideas of legislative enactment and repeal are to be understood.

The defect of inefficiency will be remedied by secondary rules empowering individuals to make authoritative determination of the question whether on a particular occasion, a primary rule has been broken or not which those are called rules of adjudication. Besides indentifying the individuals who are to adjudicate, those rules will also define the procedure to be followed.

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