H.L.A.
Hart
1. His Life and Work:-
H.L.A. Hart was born in 1907. He practised at the Chancery Bar
and thereafter, worked as a Professor of Jurisprudence in Oxford University
during 1952-68. Then he joined as Principal of Brasnose College, Oxford.
Work: The main works of H.L.A. Hart include ‘The Concept of Law (1961)’,
‘Law, Liberty and Morality (1963)’, ‘Morality of the Criminal Law (1965)’
and ‘Punishment and Responsibility (1967)’.
Hart rejected the Austin’s theory of analytical positivism and expounded his
legal theory based on the relationship between law and society. He believed that
law, coercion and morality are related social phenomena having sociological
implications.
2. H.L.A. Hart’s “Concept of Law”:-
He defines law as “law is the system of rules, a union of
primary and secondary rules”. According to Hart, a rule is one which creates
obligation and a standard to judge the morality of people’s action.
Kinds of Rules:-
According to Hart, rules are of two kinds.
Primary Rules:-
Primary rules regulate the conduct or behaviour of man in the
society. These rules either grant rights or impose obligations on the members of
the society. In other words, it can be said that primary rules are rules of conduct,
as they tell you what are legally obligated to do or not to do and what is the
consequences of obedience or non-obedience.
For example: rules of criminal law forbidding murder, robbery, rash driving
etc. are primary rules, further, the individual’s right to freedom of speech, the
environmental law rule that forbids the discharge of toxic substance in
environment etc.
Secondary Rules:-
Secondary rules are those that stipulate how and by whom the primary
rules may be formed, recognised, modified or extinguished. In other words,
these rules are power conferring; enable the legislators to modify their policies
according to the needs of the society.
For example: contract law rules that enables parties to form contracts, the rules
that allow testator to create will etc.
3. Pre-Legal World to Legal World:-
According to Hart, in the pre-legal world there was primitive society
and in this society there was no legislature which can make the rules. There was
no executive also which can change the rules and further there was no court to
decide the disputes. So in the primitive society, there were only primary rules
and no secondary rules. So according to Hart, there is necessity to introduce
secondary rules. The primary rules which impose duty upon the individuals are
binding because of the popular acceptance. These being unofficial rules, they
suffer from three major defects, namely, uncertainty, static character and
inefficiency.
(i) Uncertainty:-
As there would be no systematic method of rule of creation, there
would be uncertainty about what the rules actually are.
(ii) Static:-
Another defect is the static character of rules. The only mode of
change in the rules will be the slow process of growth, whereby a
conduct once thought optional become first habitual and then
obligatory and the converse process of decay, when a deviation, once
severally dealt with, first tolerated and then pass unnoticed. There was
no deliberate changing of rules, ether by eliminating old rules or
introducing new ones.
(iii) Inefficiency:-
Further, in primitive society there was no defined adjudication
method, so inefficiencies would arise from disputes over whether a
rule was actually broken.
What is the remedy for these Defects (Legal World):-
The remedy consists in supplementing the
primary rules of obligation with secondary rules. The introduction of
the remedy for each defect might, in itself, be considered a step from
pre-legal into legal world.
In other words, these three defects can be remedied with the
introduction of three types of secondary rules, respectively, rules of
recognition, rules of change, and rules of adjudication.
(i) Rules of Recognition:-
A rule of recognition overcomes the uncertainty
of the primary rules, as it provides an identifying criteria of the
validity of the rules of a system. As there is Parliament or
Legislature for the creation of laws in the legal world, the rules
will be certain. These rules may be in the form of legislations,
statues, judicial decisions, customs etc.
(ii) Rules of Change:-
Such rules overcome the static character of
primary rules. Such rules empower an individual or body of
persons to introduce new primary rules for the conduct of the
life of the group and to eliminate the old rules. (e.g., legislative
enactments and repeal).
(iii) Rules of Adjudication:-
Such rules overcome the inefficiency of the
primary rules. In the legal world, there are courts to decide the
disputes. Judges apply the earlier laws in deciding the disputes.
4. Foundation of a Legal System: Rule of Recognition and legal validity:-
According to Hart, rules of recognition are rules of a higher
order; being rules about the other rules of the system. It is these rules of
recognition which in Hart’s view transform a static society to the modern legal
system. If a rule emanates from some authoritative source of law (e.g.
Constitution, precedents) then it is a rule of recognition.
5. Hart’s Views on Law and Morality:-
H.L.A. Hart does not denounce the role of natural law in his positivism. He
contended that it is necessary for law and morality to have certain element of
natural law as a logical necessity. Thus, morality is implicit in Hart’s positive
law which he describes as union of primary and secondary rules. As a member
of society, individuals feel morally bound to abide by these rules both as a
matter of duty and obligation. Hart, therefore, asserts that law and morality are
complementary and supplementary to each other. In his view, there are four
attributes of morality, namely, (a) importance, (b) immunity from deliberate
change, (c) voluntary character of moral offences and (d) forms of moral
pressure which separates it from custom and other social rules.
6. Criticism of Hart’s theory:-
(i) Distinction between rules creating obligations and rules creating
powers:-
It is a questionable whether so sharp a distinction can be drawn.
For example, the same rule may create a power plus a duty to exercise
it or a power plus a duty not to exercise it.
(ii) Distinction between a legal and a pre-legal state of affairs:-
This distinction is not at all clear. If a rule of
recognition is not essential to the validity of a primary rules in social
systems that have not advanced, what precisely is the criterion?
(iii) Exclusion of morality from law:-
Hart, like other legal positivists, failed to separate law from
morals. He does not deny the role of moral principles, but says that
such morals are not necessary.
(iv) International Law:-
According to Hart, international law is a system of primary rules.
Because there is not basic rule providing general criteria of validity for
the rules of international law and the rules which are in fact operative
constitute not a system but a set of rules.
