THE CONCEPT OF LAW Hart, H.L.A.
(André Jan L. Cardeño)
Chapter V: Law as the Union of Primary and Secondary Rules 1. A Fresh Start
(Note: Hart basically criticizes Austin’s theory that law is command backed by threat and is meant to be ubiquitous in its application.)
->The simple model of law as the sovereign’s coercive orders failed to reproduce some of the salient features of a legal system, herein summarized:
First, Austin’s theory is more applicable as criminal law (and not to all forms of laws) and this type of law also affects the ones who enact it (not just on the people being given the commands backed by threats). Second, there are other types of laws such as public (conferring legal powers to adjudicate or legislate) or private (creating legal relations). Third, some legal rules differ in their mode of origin (they do not come from explicit prescription) such as custom, laws of God, etc.
Fourth, Austin’s theory fails to consider, in terms of the habitually obeyed sovereign, both the continuity of law and persistence of law, and the sovereign cannot be identified with either the electorate or the legislature of a modern state.
->The use of ancillary devices to support Austin’s theory also failed as they cannot be applied to modern legal systems:
One device is the notion of tacit order, likened to a general deliberately not interfering with the orders given by his subordinates. Another device is the notion of power-conferring rules as mere fragments of rules being restricted to directions applied to officials. This does not take into account the peoples’ perspective.
->All these arguments to support Austin’s theory failed because they do not take into account the idea of two different but related types of rules and the interplay between them:
In Primary (Basic type) Rules, men are required to do or abstain from certain actions whether they want to or not. This type of rules impose duties and concern physical movement or changes.
In Secondary (or Parasitic to the First) Rules, men may introduce new rules, extinguish, modify, or determine the control of old rules, by doing or saying certain things. This type of rules provide for the creation or variation of duties or obligations (not just physical movement or change).
It is the union of Primary and Secondary Rules that is the key to the science of jurisprudence.
2. The Idea of Obligation
(Note: Hart basically discusses about the difference on the assertion that someone “was obliged” and that someone “had an obligation” to do it.)
->Austin’s “flawed” theory started from the correct appreciation of the fact that Law makes human conduct obligatory and non-optional. But “being obliged” and “being under an obligation” are inherently two different things.
An example is used: Gunman A orders person B to hand him money with the threat of shooting him if he does not comply. If Austin’s theory is applied, then Gunman A is the sovereign giving the order (backed by threat) and that B was obliged. Therein lies the flaw in Austin’s theory, since B was obliged to hand over money for fear of harm, but he was not under any obligation (duty) to give the money.
“Being obliged” normally carries the implication that the act was done, while “being under an obligation” is rather independent on whether the act was done or not.
Being obliged (forced to do something) is a psychological state dependent on external circumstances, while having an obligation (being under a duty) does not require some psychological conditions / standards of rightness or wrongness, beliefs, or motives. The obligation (duty definition) is not dependent on facts for its validity, or that facts cannot distort its validity. ->Some theorists like Austin disregard the aspect of beliefs / fears / motives of the person (subjective and varying situations) and rather focus on statements of obligation as the “chance or likelihood” for a person to suffer punishment or evil in the hands of others in the event of disobedience or non-compliance. ->There are quite a few reasons to reject this interpretation (of chance/likelihood):
The fundamental objection is that Austin’s theory obscures the fact that deviation or non-conformity regarding rules are a reason for applying the sanctions, and not just grounds for a prediction that hostile reaction will follow. The sanction is the motivation for not breaking the law.
The second (simpler) objection is that what if the person had an obligation (and was likely to suffer if he disobeyed) but then successfully escaped jurisdiction wherein there is no absolutely chance he would be punished if he disobeyed.
->To understand the general idea of an obligation one must turn to the existence of social rules which create that obligation. This situation (which includes social rules) contributes in two ways the statement that a person has an obligation:
First, the existence of such social rules making certain types of behavior a standard is the background / proper context for the statement that a person has an obligation.
Second, the distinctive function of the statement (that a person has an obligation) is to apply such a general rule to a specific person by calling attention to the fact that his case falls under it (of having an obligation).
->The statement that one “has” or is “under an obligation” does imply the existence of a rule. However, there are some rules which require certain types of behavior without obligating anyone (such as rules of etiquette or speech which are not really “duties” but are rules nonetheless).
->Rules are thought of as imposing obligations due the importance or seriousness of social pressure behind them (the demand for conformity is insistent and the social pressure to deviants is great).
Rules supported by sufficient social pressure are important because they are deemed necessary for the maintenance of social life and balance. Such rules may be customary in origin.
There is not centrally organized system for punishment of breach such rules (social pressure): It may be verbal disapproval / appeal or it may depend on the feelings of shame / remorse / guilt. If physical sanctions are present and are not administered by officials but rather by the community, it is considered as primitive or rudimentary form of law.
->The “seriousness” of social pressure behind the rules is the primary factor in determining whether these rules give rise to obligations. There are two other characteristics which go with this primary one:
First, rules obviously essential and restrict the free use of violence are thought of as obligations. Rules are also obligations if they require truth or honesty and keeping with promises or specifying one’s distinct role in a social group (in terms of duties).
Second, conduct required by these rules may, while benefiting others, conflict with what the person owing the duty may wish to do (involves sacrifice or renunciation).
The possibility of conflict between obligation / duty and interest is one of the truisms (clichés) of lawyers and moralists.
->Social pressure appears as a chain binding those with obligations so that they aren’t free to do what they want. On the other end of the chain are either official representatives insisting performance or exacting penalty (criminal law) or groups / individuals who may choose whether or not to insist performance (civil law).
->Obligations need not be a necessarily be due to social pressure (feelings of compulsion / pressure). An example would be a swindler who has no compulsion / pressure to pay when he actually should have an obligation to pay.
Obviously, to “feel” obliged and to “have an obligation” are two different things (though they are both “noncommittal” in nature).
->There is a need to properly differentiate between Austin’s theory that statement of obligation as a prediction of hostile reaction to deviation and the idea brought forth that it should not be to predict but to say that a person’s case falls under such rule, in order to better understand the distinctive style of human thought / speech / action which is involved in the existence of rules and constitutes the normative structure of society.
The differentiation can be better explained through Internal and External points of view:
In External point of view, the observer views rules in terms of observable regularities of conduct, probabilities and signs. To the external observer, deviation from the normal conduct is a sign that a hostile reaction will follow and nothing more.
An example would be a traffic light wherein the external observer views as a natural sign that people will behave in certain ways, and the external observer would miss out a whole dimension of social life of those being observed (that the red light is not just a sign that others will stop, but a “signal” for them to stop, making stopping during red light a standard of behavior).
In Internal point of view, this brings into account the manner in which the members of the group look at their own behavior. It is the internal aspect of the rules from their internal points of view (referring again to the traffic light example).
->The life of any society which lives by rules (legal or illegal), is likely to consist in tension between those who voluntarily accept the rules (and see their own and other people’s behavior in terms of the rules) and those who reject the rules and just follow them to avoid the (external point of view) of possible punishment.
3. The Elements of Law
(Note: Hart basically discusses the 3 secondary rules of recognition, change, and adjudication. When these are combined with the primary rules of obligation, we now have the center of a legal system.)
->A society can exist without courts, legislature, or officials. These are primitive communities and some still do exist today. In this setting, the only means of social control is the general attitude of the group towards its own standard modes of behavior.
->Such system is likened to “custom” but this term is not used since it implies very old rules and less social pressure. The proper description to this “primitive system” of a social structure is that it only needs Primary Rules. ->To satisfy the definition of a society living on Primary Rules alone, certain conditions must be satisfied:
First, rules must contain some restriction on the free use of violence, theft, and deception which men are tempted but must generally repress if they are to live in close proximity with each other.
Second, since there is an existing tension between those who accept the rules and those who reject the rules (and just follow them to avoid punishment), those who accept the rules (from the internal point of view) must be the majority. Since if the ratio would be 50:50 or if those who reject are not in the minority, then there would be less social pressure for them to comply with their obligations.
->The above conditions of a “primitive community” setup can only be applicable to a small community where the bonds of kinship, common sentiment, and belief are present in abundance to survive a regime of unofficial rules.
->There will be defects if this setup is applied to a larger and more complex society:
First defect, the rules would possess “uncertainty” because it would be difficult to identify them as there is no standard set of rules, and there would be no explanation with regard to their scope of application. This is similar to the rules of etiquette example.
Second defect, the rules may become “static” because there is simply no growth (if we just rely on primary rules) and there will be no way of adapting the rules to changing circumstances either by eliminating old rules or introducing new ones (no system in place for such sudden rule changes, only a very slow process of additional customs through years or decades).
Third defect, there will be “inefficiency” of social pressure because it is too diffuse in a large society and there is no agency authorized to inflict a sanction. This might result in arbitrary biases, vendettas (for self-help, personal revenge, etc.), or no standard punishment for varying violations.
->The remedy to these defects is to merge the primary rules of obligation with secondary rules which are rules of a different kind. It is this very union that will take the society from being pre-legal to legal:
First remedy (for uncertainty), is the “Rule of Recognition”. It is the master rule. It is a simple or a complex instrument which possesses flexibility for it may not be more than a list or a text of rules found in a written document or carved in some public monument. What makes this crucial is the acknowledgment of reference to the writing as “authoritative”. This rule is conclusive identification of the primary rules of obligation. This provides unification of rules gives birth to a legal system.
Second remedy (for static rules), are the “Rules of Change”. This empowers people to introduce new primary rules and to eliminate old ones by specifying certain procedures like legislative enactment. The rules of change may also enable private individuals to create rights and obligations in the form of wills, contracts, transfer of property, and other voluntarily created structures of rights and duties which typify life under law.
Third remedy (for inefficiency), are the “Rules of Adjudication”. This confers powers on certain individuals to arbitrate or judge and also define the procedures in accordance with which adjudication would take place. These secondary rules provide for the centralized official “sanctions” of the system.
->With the union of the primary rules of obligation with the secondary rules of recognition, change and adjudication, we now have the heart of a legal system.
->It must be noted though that the union of primary and secondary rules is the center of a legal system but it is not whole and if one moves further away from the center, more elements will be defined (in Chapter VI).
Chapter VI: The Foundations of a Legal System 1. Rule of Recognition and Legal Validity
(Note: Hart basically discusses the multiplicity and hierarchy in the rule of recognition: constitution, legislation, judicial precedent, etc. The rule of recognition is the ultimate rule.)
->The Rule of Recognition’s main function is to identify whether another rule is part of the legal system or not. Wherever such a rule of recognition is accepted, both private persons and officials are provided with authoritative criteria for identifying primary rules of obligation.
->The criteria may take any one or more of the variety of forms, which include: Reference to authoritative text;
Reference to legislative enactment; Reference to customary practice;
Reference to general declarations of specified persons; or Reference to past judicial decisions in particular cases.
->In a modern legal system where there are a variety of sources of law, the rule of recognition is correspondingly more complex. This commonly includes a written constitution, an enactment by legislature, and judicial precedents. ->In order to avoid conflict these sources of law are ranked in order of relative subordination and primacy.
An example is the English legal system where common law is subordinate to statute (Acts of Parliament).
->In a legal system the rule of recognition is seldom stated, but its existence is shown in the way in which particular rules are identified, either by courts, their officials, or private persons or their advisors.
An example would be in the scoring rule of a game where activities of scoring (runs, goals, etc.) are not formulated but used by officials and players in determining the score. And the “declarations” of umpires / scorers have a special authoritative status (similar to judges).
->A court using the unstated rule of recognition to identify particular rules of the system is a characteristic of the internal point of view.
->There are two forms of expression for shared attitude of acceptance of rules:
The Internal Statement, manifesting the internal point of view and recognizes some particular rule in the system as valid without stating that it is accepted. Example: “It is the law that…”
The External Statement, being the natural language of an external observer of a system who states the fact that others accept the rule, without himself actually accepting such rule. Example: “In England they recognize the law as whatever the Queen in Parliament enacts.” ->To say that a given rule is valid is to recognize it as passing all the tests and satisfying the criteria provided by the rule of recognition.
->There is dichotomy between “validity” and “efficacy” of law. There is no connection between the two unless the rule of recognition expressly recognizes in its criteria that no rule is to count as a rule of the system if it has long ceased to be efficacious.
One who makes an internal statement concerning the validity of a particular rule may be said to “presuppose” the truth of the external statement of fact that the system is generally efficacious.
An understanding of the internal statement that a given rule is valid, and the external statement of fact that the system is generally efficacious, helps in seeing in a proper perspective the common theory that to assert the validity of a rule is to predict its enforcement by the courts or officials.
->There are two ideas for the Rule of Recognition, the Supreme Criterion and Ultimacy Rule:
The Supreme Criterion is a part of the rule of recognition and it is the part which dominates over the rest. A criterion of legal validity or source of law is supreme if rules referenced to it are recognized as rules of the system. If the rules referenced to other criteria are in conflict with the rules referenced to the supreme criterion, the latter are the ones to be recognized.
An example would be parliamentary enactment in the UK, wherein if a situation arises where the common law, or local or general custom, contradicts with it, parliamentary enactment will prevail.
The Ultimate Rule of the system is the Rule of Recognition itself because one cannot go further than that. It is ultimate because it is neither valid nor invalid but simply accepted as appropriate for use in this way.
An example is the meter bar in Paris and the Big Ben in London which are considered to be the ultimate tests for correctness of measurement and time respectively.
2. New Questions
(Note: Hart basically discusses the questioning of the “existence” of a legal system)
->It is vital to distinguish between “assuming validity” and “presupposing existence”, because if one does not do so it obscures the assertion that such a rule exists.
->The existence of the rule of recognition is a matter of empirical fact and not a normative statement.
->The two minimum conditions necessary and sufficient for the existence of a legal system are:
First, the rules of behavior which are valid according to the system’s ultimate criteria must be generally obeyed. This is the only condition that private citizens need to satisfy.
Second, the rules of the system (regarding criteria of legal validity and rules of change / adjudication must be accepted as common public standards of official behavior by officials. This is the condition that public officials must also satisfy.
->The officials of the legal system must have an internal attitude towards the rule of recognition of the system, and it is not necessary, although it is desirable, that private citizens have an internal attitude towards rules as well. ->There should be a unified / shared official acceptance of the Rule of Recognition (with the criteria of validity).
->The valid legal rules of the system must be “obeyed” by both officials and private citizens.
->In the extreme case where an internal point of view is only amongst the officials, society would be deplorably sheep-like (and ending at the slaughterhouse), but it would still remain a legal system.
->The assertion that a legal system exists is a two-pronged statement looking both towards obedience by ordinary citizens and to the acceptance of officials of secondary rules as critical common standards of official behavior.
3. The Pathology of a Legal System
(Note: Hart basically discusses the conditions for the breakdown of a legal system)
->A legal system exists when both the official sector (officials) and private sector (citizens) are congruent / similar in their concerns with the law. If both points of view coincide there is harmony and the legal system is valid. Basically, the rules recognized as valid at the official level are generally obeyed.
->However, the official sector sometimes becomes detached from the private sector (there is no longer any general obedience to the rules which are supposedly valid according to the criteria of validity).
The breakdown in the complex congruent practice may be due to various disturbing factors:
If there is a Revolution, where there are rival claims of governance within the group and there may be an illegal substitution of officials in the system.
If there is Enemy Occupation, where there is a rival authority to govern.
If there is Anarchy or Banditry, where there is simply the breakdown of ordered legal control.
Moreover, when unity among officials partly breaks down due to disagreement over certain constitutional issues, this also leads to the breakdown of the legal system.
->There is no exact determination whether a legal system ceases to exist, because there may be half-way stages (example: governments-in-exile) or there is still a considerable chance of restoration or if the disturbance is an incident of war and that the future is obviously uncertain.
->Difficulties arise upon restoration from interruptions of legal systems, such as what was “law” during an enemy or rebel occupation (if the legitimate government returns victoriously).
This may be raised as a question of international law, or retrospective law may be declare such that the laws of the restored system have always been in effect even during “interruptions”.
An example situation on a legal system ceasing to exist would be the independence of British colonies wherein they would now have separate legislatures and laws, with the laws of the colonial power no longer operational in the respective former colonies.