Hart’s Concept of Law

Introduction

Jurisprudence refers to the term which originates from Latin word jurisprudentia which signifies knowledge of the law and skill of law. It refers to the practical application of principles to frame law. The history of jurisprudence evidences the fact that the term has been interpreted differently by eminent jurist. It is a systematic arrangement of principles and values in a defined legal system of law. The origin of jurisprudence owes its origin from the Hinduism concept of dharma which is guided by principles of discipline. Over the years with the need felt in the society the study of jurisprudence got divided into different school of thoughts as classified by Salmond the study into three main schools, the Analytical School of Law, Historical School of Law, Ethical School of Law.

The concept of law as propounded by HLA Harts originates in the Analytical school of law. He articulated the system of law in his book “The Concept of Law”. He stated that a system of legal practices is a system of rules framed which are influenced by a social change in a society and emanates from that social change itself. The Harts Conception of law attempts to find solution to defects faced in a legal system if only primary rules existed solely without secondary rules. Therefore, by the bifurcation of the two rules, he steps to explain the necessity of existence and dependence of the two rules in a legal scenario. The conception of law by Professor HLA Hart also accepts and attempts to clarify the basic relationship between law and morality and at the same time differentiate the two terms.

Origin of the Conception

H.L.A. Hart was a British philosopher who was a professor of jurisprudence at the University of Oxford. His most important writings included Causation in the Law (1959, with A.M. Houore), The Concept of Law (1961), Law, Liberty and Morality (1963), Of Laws in General (1970), and Essays on Bentham (1982)[1]. The origin of the concept can be attributed to the analytical school of law which primarily dealt law as it is and not ought to be. The Analytical school of law studies law in a present scenario as compared to other schools of laws. It studies the first principles of law given in a legal system and the importance of relation of law with the state. The scholars of this school are not concerned with the study of law of past or future but are only focused to study the law of present and they term it as ‘ positus ‘meaning thereby as it actually exists.

The Harts Conception of Law

The concept of law as propounded by HLA Harts originates in the Analytical school of law. He articulated the system of law in his book “The Concept of Law”. He stated that a system of legal practices is a system of rules framed which are influenced by a social change in a society and which emanates from that social change itself. He differentiates between non legal rules and rules which exist in the society for e.g., morals, custom, ethics, and values in the society which are the rules or say norms acceptable in society which are being followed for over years. Hart explained the relationship between law and morality and answered the question whether all laws made are imposing and coercive order or are guided by moral commands. Hart divides the legal system into two rules i.e., primary rules which he names as duty imposing rules and the secondary rules which are power conferring rules. The union of these two rules primarily forms a legal system to run effectively without ambiguity. The concept of law was derived from the Harts lectures delivered in Oxford University where he discussed about legal positivism of Austin and explained the ideas of differentiating law and morals and produced following observations.

• The criticism of Austin theory of law of law being a command of the sovereign.
• The bifurcation of primary and secondary rules where primary rules is the duty imposing rules and only tell what is actually a rule and the secondary rule which is the rule of a rule which attempts to create, improvise, alter the rules as per the needs in society and help in speedily change of legal framework.
• The difference between internal rules and external rules i.e., the rules which are derived from the authority and the rules which are guided by a conscience of a person.
• The formulation of rules of recognition, rule of adjudication and the rule of change which address the defects faced in a legal scenario. 

Austin’s Command Theory of Law

Hart argued with the theory of law being command of the sovereign as given by John Austin. According to John Austin law is only backed by coercive and fear which lead people to follow law. Austin quotes an example of gunman in a bank situation where the people who are at the gunpoint follow all the rules made by gunman at that point of time, but Hart conceptualised and condemns this idea of Austin as he says that no matter people follow the rule of law at that point of time but they do it with the fear state of mind not whimsically ,which law in a modern scenario never supports as law is made for the people and by the people so any law which runs autocratically with threat will never sustain the need of a modern society in which we live today. He states that law is not only to follow but to some extent derived from an internal feeling of obeying a law, for instance respecting one’s national flag is a law as well derived from patriotic feeling. The law is never only a set of rules to be obeyed but also facilitates development of individuals like the law which allows parties to enter into a contract, making of wills etc.

Concept of Primary and Secondary Rules

According to HLA Hart law is a system of two rules when coexist becomes key factor in the science of jurisprudence. Hart viewed that primary rules are duty imposing rules whereby secondary rules are power conferring rules and the assemblance of these two gives birth to law.

Primary Rules

The primary rules are the first rules which places a duty on a member of a nation or society. These rules guide people to do or not to do a certain thing and impose duty on the individuals to act in a definite manner. These rules are binding because of popular acceptance in the society like rules of kinship, family sentiments etc. The primary rules govern the behaviour of human conduct in a society for example the rule of torts forbids defamation, the rule of criminal law is made for the punishment of murder, theft, and robbery. The existence of primary rule is not enough in contemporary era therefore it leads to the formation of secondary rules.

Example of primary rules

• Criminal prohibitions.
• Rules of Tort.
• The right to freedom of speech of an individual.
• The environmental law rule which forbids the discharge of toxic substances in water bodies.

Secondary Rules 

These rules are the rule of all rules and attempt to resolve the defects faced by primary rule. The rules are power conferring rules and are rules made for alteration, creation, and meeting dynamic needs. The primary rules are only rule which tells what the rule is, but the secondary rule gives the power to rule being amended, it imposes a rule which makes primary rule necessary to be followed, it seeks to answer that who will decide dispute if in case arises, who will be authorised to adjudicate and who is entitled to reform and appeal laws. For instance, the proviso to amend the law is conferred under article 368 of the Indian Constitution[2]

In the Indian Constitution, Schedule VII gives a list namely State, Centre, and Concurrent List, which conferred power to respective organs to make laws. There is a link between these primary and secondary rules. There is a specific relationship between these rules which rather systematically comprises a legal system and legal order.[3]

Examples of Secondary Rules

• Rules of Contract law rules enabling the formation of a contract by the parties.
• The rules which allow the testators for creation of a will.
• The statute for the Supreme Court which authorities it to promulgate rules of procedure as well as practice for the federal courts.

Secondary rules are further divided into three rules which attempt to resolve the defect which existed in the primary rules

1. The Rule of Recognition
2. The Rule of Adjudication
3. The Rule of Change

The Rule of Recognition

Hart conceptualised that the rule of recognition is an acceptable standard of rule in a society and a rule which is not uncertain, it seeks to answer that what law is or what the rule will be. It removes ambiguity and places the validity of the rule to be followed. This is the rule which recognises all other rules. In today’s era with multiple sources of laws such as codified laws, texts in constitution, enactments passed by legislature and judicial precedents it confuses and places difficulty to assess that which rule should be followed and if followed then which rule should overrule all, like Kelson propounded the theory of grundnorm as the basic norm in deciding to form the base. Hart rule of recognition gave somewhat same dimension. The rule of recognition is acceptable by private person as well as the authoritative persons the criterion for accepting the rule emanates from the various sources where rules are defined such as in reference to texts, codified law, enactments passed by legislature, customary practices, and general declaration and past judicial judgements being passed by the courts. When today there are so many sources of law it becomes complex to identify the rule of recognition, thus it includes precedents and constitutional enactments. The sources of law qualify to be accounted as a rule of recognition and thus accepted by courts according to past judicial pronouncements or any development in system. The development emerges when on deciding a case the court refers to the sources on a footnote bases and accounts it as a foundation of the legal system.

The Rule of Adjudication

The rule attempts to remove the defect of inefficiency. It seeks to answer that on a particular occasion whether a rule has been violated, who is authorised to adjudicate, govern the election and procedure of judiciary.

The rule of adjudication lays down the prosecutor to prosecute, defender to defend, a counsel, lawyer, judge who get to decide the fact of a case. If the law remains inefficient then the primary law will never be implemented effectively and every time, there will be a person who will deny his or her act. Thus, for the enforcement of rule and to achieve the purpose with such rule is being made, a deterring force is necessary to comply the individuals to act and obey in a definite manner.

A law made without punishment will be futile law as it will only be confined to texts and no individual in the society would be in fear to obey such rule. for e.g., there is a law made for murder but if there was not punishment prescribed then that law of murder under CrPC would be useless. Therefore, to keep a strict check on the enforcement the rule of adjudication developed. The rules which confer direct power to adjudicate a matter in a dispute e.g., Article 32 in the constitution of India empowers supreme court to issue prerogative writ Article 131, 132, 134, 133 that empower Supreme Court the original and Appellate jurisdiction. Article 323A and 323 B empowers tribunals to adjudicate matters in dispute[4]. All those articles in the Constitution are power conferring. They enable a court to decide a particular dispute.

The Rule of Change

The rule of change is a development to the dynamic needs of society as law being made as it is will not comply statically in future itself, for a progressed society the law should change according to the pace in the society as primary rules take decades to change as explained by Hart, therefore secondary rule of change attempts to remove this defect of statictiness nature. The rule of change is made to modify, interpret, alter the laws. For example, Article 368 confers the Parliament to amend the constitution and a procedure is formulated for the same. This includes the power to repeal, remove ambiguities from the texts of law.

Conclusion

Professor Hart summarised the idea of coexistence of the two rules in relation to each other for the effective running of legal system. He stressed that both the rules strengthen the foundation of the system. The primary rules impose duty on the individuals and the secondary rules enhance the development of the primary rules to exist accordingly. The secondary rules create and regulate the primary rules. On to this note but Hart’s theory was criticised by various eminent jurist such as Ronald Dworkin and Lon. L. Fuller. Dworkin was against the idea by Hart that laws are just a set of rules he pointed out that legal system is not comprised of only rules but comprises of principles which are important for any legal system. He told that rules cannot lay down the foundation of law principles such as Principle of Natural Justice are more valuable and have been given prior importance as compared to other rules in various cases.

Such as one in the Maneka Gandhi vs Union of India [5]where the petitioner passport was seized arbitrarily by the Passport authorities. The petitioner was not given reason for such impounding of the passport, the issue before the court was to determine questions in respect of interpreting the articles 14, 19 & 21 cumulatively to give effect to the principles of natural justice. In this leading case it was observed that basic principles of natural justice of ‘Audi Alteram Partum ‘was brought into picture and stressed the idea of the principle as one of the essences of which is inherent to the spirit of the fundamental rights embodied in the constitution. Thus, whenever a conflict arises between a rule and principle, the principle overrides the rest.

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References:

[1] Prof. H.L.A. Hart’s Concept of Law ||Concept of law by Prof. Hart || Jurisprudence || (lawnotes4u.in)

[2] Background and Functions|Legislative Department | Ministry of Law and Justice | GoI

[3] Prof. H.L.A. Hart’s Concept of Law ||Concept of law by Prof. Hart || Jurisprudence || (lawnotes4u.in)

[4] Prof. H.L.A. Hart’s Concept of Law ||Concept of law by Prof. Hart || Jurisprudence || (lawnotes4u.in)

[5] AIR 1978 SC 597; (1978) 1 SCC 248