Jose Luis General 2-E

Law As the Union of Primary and Secondary Rules

Chapter V
I. A Fresh Start
In this chapter, Hart begins it with a summary of the last three chapters. Basically, he points out
that the simple model of law as the sovereigns coercive orders is inadequate to the analysis of law. The
failure of this theory to present a thorough analysis of law may be summarized in four important points.
Firstly, the idea that law is orders imposed on others backed by threats is insufficient since in a
modern society, lawmakers themselves are bound to comply with their legislations. Secondly, there are
other areas of law that cannot constitute as orders backed by threats such as power-conferring laws
that spring from obligations and contracts. Thirdly, there are varieties of law that differ in the mode of
origin. Lastly, it failed to account the concept of continuity of legislative authority and it failed to identify
which truly is the sovereign.
The main cause of the failure of the theory is that the concepts of orders, habits, obedience and
threats do not include rules. Without including rules in the theory, there could be no strong foundation
in the pursuit of analyzing law.
The idea of rules is already discussed by Hart in Chapter III; however, he further elucidated these
two types of rules in this fresh start. There are basically two types of rules, yet closely related. The first
one is considered as the basic or primary type I which human beings are required to do or abstain
certain types of behavior or actions. These rules impose duties and they concern actions that could be
physically done. The second rule is considered as parasitic to the first as human beings, in their actions
and words, may recreate, modify, and repel the primary rules. These rules confer public and private
powers and these rules not only affect actions that could be physically done, but also lead to the
creation of obligations.
As Hart expounds, the combination of these two rules may prove that Austins notion of
coercive orders is wrong. The complete understanding of these two rules is important because this may
complement in the effort of defining what law is.
II. The Idea of Obligation
Hart starts this chapter by stating that the phrases was obliged and had an obligation are
different from each other in a sense that the former is subjective as it depends on beliefs and motives
and the latter is objective in a sense that it depends on necessary and required duties.
For some theorists, including Austin, the subjectivity depends on the assessment or predictions
of the one who was obliged whether the doing of the obligation may avoid him of incurring punishment
or meeting any evil. However, for Hart, this should be rejected.
It should be rejected because when rules are deviated, it does not only mean that sanctions and
hostile reactions will follow but also that sanctions and hostile reactions will be justified.
Another objection is that there are ways to avoid incurring punishments or meeting any evil
such as fleeing the country so as to avoid the courts having jurisdiction in him or bribing policemen or
any other government official.
However, in a normal legal system where there is strict compliance on punishments, a supposed
offender may think twice before doing any disobedience. Hence, the idea of obligation that a person
needs to comply with the rules in order to avoid punishment is to be accepted.
To understand the idea of obligation, the gunman situation is not appropriate as there are no
social rules that are involved. Social rules are important in the understanding of the idea of obligation
because of two reasons. Firstly, the existence of social rules presupposes that the behavior required of
these rules is the one that is normal. Secondly, this applies a general rule or a normal standard to a
particular person.
Whenever an obligation is deemed to exist, it follows that there are rules behind its existence.
But it does not follow that when there are rules imposing a standard of behavior, these should not be
interpreted as obligations. An example of this is rules on grammar and etiquette. These may be rules but
they are not obligations.
Rules may be treated as obligations only if there is a general demand and social pressure for
conformity is great in such a way that it amounts to a social, or even physical, threat to anyone who
deviates. Social pressure may only take forms of verbal manifestations of dislike or disapproval on part
of the members of the society or feelings of shame, remorse or guilt on part of the one who deviates.
These feelings of shame, remorse or guilt may originate from the standards of morality of the society.
Whenever there are physical sanctions that the society may impose, without governmental intercession,
these obligations may be considered as primitive. To summarize, what is important is that social
pressure behind the rules is so great and so serious so as to determine that obligations indeed exist.
There are other two characteristics of obligation aside from the primary one as described in the
last paragraph. First, these rules that arise to obligations are important because they lead to the
maintenance of an organized and peaceful society. Second, when there are obligations and duties, it
presupposes that there is a necessity to sacrifice or renounce in order to perform these obligations and
duties.
Obligations bind the persons who are obliged while the origin of the word duties is related to
debts. There is a chain that can be observed when a person is bound to perform an obligation. He is not
free to do whatever he wants as he is required to perform it by social pressure. In the end of the chain,
whenever an obligation is not performed, official representatives may pursue in forcing the person to
comply in cases of criminal matters, or private persons may insist on the performance of the obligation
in cases of civil matters.
But we must not be confused with these figures that obligations are supposed to pressure
people from complying and performing. This is because there is a difference between feeling obliged
and having an obligation.
For this, Hart goes back the internal aspect of rules as this supports the claims of the predictive
theory. Because of this, it is important to take note of the difference between the predictive theory and
Harts contention so that the elements that are involved in the existence of rules which presuppose
standards are to be understood.
Ending this subchapter, Hart proceeds to a situation that involves the existence of rules in any
society. Whenever there are rules, there is a tension between those who cooperate in maintaining these
rules, and those who do not accept the rules but only comply from the external point of view in order to
avoid punishment or sanctions.
III. The Elements of Law
Hart starts this chapter by imagining a primitive society without a legislature, courts, or any
other signs of a formal government. The society lives by a particular standard of behavior and by that,
social control is attained. This may be referred as customs but this word should not be used as this
implies that these rules (customs) are secondary to others and are subject to less social pressure. For a
society to live by these rules alone, there are two necessary things needed to be achieved. First, the
rules must have remedies for the use of violence and other heinous crimes defined in modern societies.
Second, those who reject the rules should not be more than a minority as this may create tensions that
may destabilize the society.
This kind of society, however, is perfect only for small ones as they are bound by kinship, and
other close ties. This system cannot survive in more complex and larger societies as these unofficial rules
may just be regarded as forms of etiquette. The three major defects of this kind of society are
uncertainty, staticness and inefficiency.
Uncertainty indicates a situation where there is a doubt in the existence or the application,
including its procedure, of the rule. If there is, a conflict cannot be settled appropriately. As regards
staticness, its defect is apparent in the long term as it is common knowledge that society changes
throughout time. For example, a rule on imposing payment of interest in debts established in the 12
th

Century may no longer be applicable in the 21
st
Century. Lastly, inefficiency is apparent in this kind of
society as there may be disputes on whether a violation was indeed committed; productivity and
security of persons whose rights were violated are considerably affected as they themselves will have to
catch and punish the offenders.
Although there are defects, there are remedies and each of these remedies consists of
supplementing the primary rules with secondary rules. With these remedies, this simple kind of society
is to be converted from pre-legal to legal, or in other words, it shall be converted to a society that has a
legal system. In turn, we shall be enlightened by these remedies as this will show that the union of
primary rules with secondary rules characterizes law.
As for uncertainty, the remedy is the introduction of what Hart calls a rule of recognition. This
involves the reducing to writing rules already observable in the society. However, this is not sufficient as
what is more important is the acknowledgement of such written list of rules as authoritative as the
proper way of settling doubts as to whether a rule indeed exists. With this, a very simple form of
secondary rule is created and that is a rule on identifying the primary rules of obligation.
In more complex societies, identification of rules and laws is difficult as there are various
sources of law such as the constitution, statutes, customs, jurisprudence, ordinances and so on.
However, this may be remedied by arranging these sources according to superiority. Surely, the
constitution is regarded as superior in most legal systems. Going back to the simple society of having a
complete list of rules, this introduces elements of a legal system such as the unification of rules into one
set and the benefit of legal validity.
As for staticness, the remedy is what Hart calls rules of change. In its simplest form, what is
needed is a person or a group of persons who are empowered to introduce new primary rules and to
eliminate old ones. These powers conferred under the rules of change may be unrestricted or limited.
As regards inefficiency, the remedy is called rules of adjudication. These rules will empower
individuals to determine whether a particular rule has been violated. Aside from identifying the persons
authorized, it is also needed that a particular procedure should be followed. Accordingly, official and
general sanctions should be formulated.
With the union of primary rules on obligation and secondary rules of recognition, change and
adjudication, we see the heart of the legal system. More importantly, we create an important tool for
the analysis of law.