Analytical positivism

H L A Hart's views on the meaning and nature of law. He belongs to the analytical school of jurisprudence.

1. by H. L. A. HART ANALYTICAL POSITIVISM

2. Hart’s Concept of Law Hart conceives law as a social phenomenon: It can only be understood and explained by reference to the actual social practices of the community. For a human society to survive as a collectivity, certain rules must exist for the protection of persons and property and also for ensuring that promises are kept. Hart’s theory thus focuses on “rules” . For him, law is a system of rules.

3. Hart’s Concept of Law Unlike Austin, Hart believed that it was wrong to identify law exclusively with the commands of the Sovereign. He criticized the command theory for not accounting for all the different kinds of rules that we may justifiably call law.

4. According to Hart, law is a system of two types of rules the union of which provides the key to the science of jurisprudence .

5. PRIMARY RULES These impose duties or obligations. These rules directly govern our behavior by telling us what we ought and ought not to do. Their function is to preserve social order. Example: The law requiring us to stop at red light.

6. PRIMARY RULES These rules are binding because of popular acceptance. They are backed by social pressure because they are necessary to regulate behavior and maintain the society. These are unofficial rules.

7. MAJOR DRAWBACKS OF PRIMARY RULES: UNCERTAINTY (identification and scope) STATIC INEFFICIENT (no mechanism of solution of disputes through adjudication)

8. Small social groups bonded by kinship and shared beliefs living in a stable environment may survive by primary rules alone. But as society gets larger and more complex, primary rules prove insufficient and defective. Hence, there is a serious need for a different type of rules, that is, secondary rules.

9. SECONDARY RULES They confer powers. They enable the legislators to modify their policies according to the needs of the society. Without such rules, the society would become very static. Powers conferred maybe private (like power to make a contract) or public (power of adjudication or legislation).

10. SECONDARY RULES These rules set up procedures through which primary rules can be introduced, modified or enforced. Thus, these are rules about the rules . Example: Family Courts Act

11. TYPES OF SECONDARY RULES

12. DEFECTS OF PRIMARY RULES OVERCOME BY SECONDARY RULES PRIMARY RULES SECONDARY RULES UNCERTAINTY RULES OF RECOGNITION STATIC RULES OF CHANGE INEFFICIENCY RULES OF ADJUDICATION

13. Primary rules become a part of the legal system through their union with secondary rules. An example of such a union may be taken as the Industrial Disputes Act. This union of primary rules with the secondary rules is the essence of law according to Hart.