Law and Rules

A Level Law
23rd December 2016

8:30 AM

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 Law and rules
Juristic Viewpoint

• Austin: the command theory: The seventeenth-century writer John Austin argued that law
differed from other rules because it was the command of a sovereign body, which the state
could enforce by means of punishment.
• Hart: primary and secondary rules: Professor Hart divided legal rules into primary rules and
secondary rules, and argued that the existence of secondary rules was a mark of a developed
legal system. Primary rules were described as those which any society needs in order to survive.
Secondary rules confer power rather than impose duties, and can be divided into three types:
I. rules of adjudication;
II. rules of change; and
III. rules of recognition.

• Dworkin: legal principles: Professor Dworkin argues that the rich fabric of law contains a set of
principles on which all legal rules are based. Legal principles are guidelines, giving a reason that
argues in one direction, but does not dictate a decision.
• The natural law theory: The natural law theory defines law by its content: only laws which
conform to a particular moral code, seen as a higher form of law, can genuinely be called law.

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 Law and rules
Functional Viewpoint

• Social cohesion: The nineteenth-century French sociologist Emile Durkheim

(1983) looked at the issue of social cohesion, searching for what keeps a
society together, and concluded that law played an important role in this
area.
• Survival: Professor Hart argues that the main function of law is simply to
allow human beings to survive in a community
• The maintenance of order: The German sociologist Max Weber (1979)
argued that the primary role of law is to maintain order in society. .
• Exploitation: Karl Marx argued that society was composed of classes whose
interests were fundamentally opposed to each other. Law, Marx maintained,
was not made in the interests of society as a whole, but in the interests of
the small group which dominates society; through law (and other social
institutions, such as religion), this group is able to exploit the working class.

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 Law and rules
A further consideration

• Why are laws obeyed? Austin thought laws were

obeyed because of the threat of sanction and out of
a habit of obedience to the state. Hart argues that
there is an internal process, which inclines us to obey
because we consider it right and proper to do so.
• Fear and internalisation: If we obey laws because we
internalise them, what makes us internalise some
rules and not others? One theory, put forward by
Professor Olivercrona (1971), suggests that fear is a
strong motivation.
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 Law and rules
Legal Rules and Moral Rules

• It must be noted that if rules are considered to

be moral rules and laws to be legal rules then
certainty, enforcement and sanction by the
state can be assigned as features of law as
opposed to rules.

Barrister MTH Munim @ 01943699187 &

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munim010@gmail.com