Harts Concept of law-

jurisprudence

1. Introduction to Jurisprudence-I H.L.A. Hart’s  The Concept of Law

2. Introduction Herbert Lionel Adolphus Hart (1907-92) was a British philosopher who was professor of jurisprudence at the University of Oxford. His most important writings included  Causation in the Law  ( 1959),   The Concept of Law  (1961),  Law, Liberty and Morality  (1963),  Of Laws in General  (1970), and  Essays on Bentham  (1982 ). He was positivist. Positivism applied on human condition. Following characteristics of human conditions require positive law. A) Human Vulnerability: Eachone of us can be subjected to undesired physical violence, therefore rules are required to human vulnerability such as laws against murder, rape, assault etc. B) Approximate equality: making mutual forbearance and compromise, therefore rules required to accommodate approximate equality such as laws relating to contract, traffic, commerce, banking etc.

3. Introduction Limited Altruism: People do not work unselfishly and that people have tendencies of aggression which may require control, therefore rules are required to address corruption, embezzlement, monopolies, black marketing etc. Limited resources: we will need food, shelter, clothing etc all which are in limited supply, therefore rules are required to take account of limited resources such as laws relating to theft, property, wills etc. Limited understanding and strength of will: our understanding of long term interest cannot be taken for granted, thus we need to make rules which provide sanctions which address long term interests, such as environmental protection, abortion and family planning, pollution control, compulsory education etc. Therefore there is need in society to protect persons, property and promises.

4. Hart Distinguishes law and rules of law. Laws are rules that may forbid individuals to perform various kinds of actions or that may impose various obligations on individuals. Laws may require individuals to undergo punishment for injuring other individuals. They may also specify how contracts are to be arranged and how official documents are to be created . They may also specify how legislatures are to be assembled and how courts are to function. They may specify how new laws are to be enacted and how old laws are to be changed. They may exert coercive power over individuals by imposing penalties on those individuals who do not comply with various kinds of duties or obligations. However, not all laws may be regarded as coercive orders, because some laws may confer powers or privileges on individuals without imposing duties or obligations on them.

5. Primary and Secondary rules He suggested a dual system of rules primary and secondary rules. Primary Rules: These rules lay down standards of behaviour and rules of obligation and they impose duties on individuals and they also directly govern our behavior by telling us what we ought and ought not to do. Such as Contract Act and Pakistan Penal Code etc. Secondary rules: These rules are specific ways in which primary rules can be ascertained, introduced, changed or enforced e.g. constitutional laws, procedural laws etc. For larger society primary rules are insufficient and defective and the society which possesses only primary rules is pre-legal and suffers from three drawbacks: i ) Uncertainty: as to what these rules are and their scope but this can be met by having secondary rule of recognition by which to identify primary rules. ii) Primary rules are static but this can be met by having secondary rules providing power to change primary rules. iii) Thirdly maintenance of primary rule is insufficient because of the absence of authoritative arbiters of dispute but this can be met by having rules of adjudication.

6. Primary and Secondary rules In order for a system of primary rules to function effectively, "secondary rules" may also be necessary in order to provide an authoritative statement of all the primary rules. Secondary rules may be necessary in order to allow legislators to make changes in the primary rules if the primary rules are found to be defective or inadequate. Secondary rules may also be necessary in order to enable courts to resolve disputes over the interpretation and application of the primary rules. The secondary rules of a legal system may thus include 1) rules of recognition, 2) rules of change, and 3) rules of adjudication.

7. Primary and Secondary rules Primary rules of obligation are not in themselves sufficient to establish a system of laws that can be formally recognized, changed, or adjudicated, says Hart. Primary rules must be combined with secondary rules in order to advance from the pre-legal to the legal stage of determination. A legal system may thus be established by a union of primary and secondary rules. There are two minimum requirements which must be satisfied in order for a legal system to exist: 1) private citizens must generally obey the primary rules of obligation, and 2) public officials must accept the secondary rules of recognition, change, and adjudication as standards of official conduct. If both of these requirements are not satisfied, then primary rules may only be sufficient to establish a pre-legal form of government.

8. Criticism on Austin commands model Hart criticizes the concept of law that is formulated by John Austin in  The Province of Jurisprudence Determined  (1832) and that proposes that all laws are commands of a legally unlimited sovereign. Austin claims that all laws are coercive orders that impose duties or obligations on individuals. Hart says, however, that laws may differ from the commands of a sovereign, because they may apply to those individuals who enact them and not merely to other individuals. Laws may also differ from coercive orders in that they may not necessarily impose duties or obligations but may instead confer powers or privileges . Examples, wills, contracts, power of legislature etc. Hart argues that the foundations of a legal system do not consist, as Austin claims, of habits of obedience to a legally unlimited sovereign, but instead consist of adherence to, or acceptance of, an ultimate rule of recognition by which the validity of any primary or secondary rule may be evaluated. If a primary or secondary rule satisfies the criteria which are provided by the ultimate rule of recognition, then that rule is legally valid .

9. Concept of Obligations Laws are obeyed because people are under an obligation to follow it. Laws are concerned with obligation rather than coercion. A legal rule is one which prescribes a code of conduct which is observed with the feeling that such conduct is obligatory. A person who has to act according to rule will also expect others to act according to the rules. Eg . In Pakistan we drive right side of the road, now a person who observes(follows) this rule also expects that others will do the same. He also rejects the contention that laws are followed(obeyed) due to habitual behavior. He disagrees with the Scandinavian realists contention that law is not rules at all but a form of habitual behavior leading man to compliance. According to Hart, compliance to law is due to man’s inner attitude of having a duty to obey the law.

10. Distinguishes habit from obligation/rule Habits only requires common behavior which is not enough for a rule and which may not have sanction over it. He asks us to contrast the case of a man who habitually cleans his car on Sunday morning and that of the driver who always informs to the traffic law requiring him to stop at a red signal. Whereas in the first case it is a habit but these is no obligation to wash the car; in the second case the stopping at the red light signifies an obligation/duty on part of the driver to do so and is not a mere habit.

11. Distinguishes between being obliged(compelled) and under an obligation An example of being obliged or compelled is a gun-man, ordering money to be handed over; whereas being under an obligation entails the existence of inner acceptance and the existence of social, one has obligation only by virtue of a rule and there is no rule to give money to a gun-man.

12. International law International law is described by Hart as problematic, because it may not have all of the elements of a fully-developed legal system. International law may in some cases lack secondary rules of recognition, change, and adjudication. International legislatures may not always have the power to enforce sanctions against nations who disobey international law. International courts may not always have jurisdiction over legal disputes between nations. International law may be disregarded by some nations who may not face any significant pressure to comply. Nations who comply with international law must still be able to exercise their sovereignty.

13. Vagueness of law In any legal system, there may be cases in which existing laws are vague or indeterminate and that judicial discretion may be necessary in order to clarify existing laws in these cases. Hart also argues that by clarifying vague or indeterminate laws, judges may actually make new laws.

14. Reasons due to which people obey the law Non-optional character of law An inner obligation to obey General application of law Compulsory membership of the State Laws are obeyed because they are pre-declared.

15. Merits of Hart’s concept of law Hart conception of law as system of rules is a brilliant notion, which was ignored by jurists. By rejecting the idea of command, and by substituting it with the idea of obligation, one is able to understand as to why a statute applies to its framers. Hart has also very rightly distinguished between rules of law and other types of rules ( eg . Rules of clubs, etiquette). The greatest contribution of hart’s theory is that of internal acceptance of legal rights that result in external observance.

16. Objection/Criticism against Hart’s concept of law Dias has pointed out that Hart’s theory ignores the role played by courts in law-making. Hart contends that a person who has to act according to a rule will also expect others to act accordingly to those rules; and that the others will act accordingly. This propositions seems to be very idealistic assumption. One does well to remember Jeremy Taylor’s warning that a herd of wolves is quieter and more at one than so many men, unless they all had one reason in them any power over them. In a similar vein; hart contends that laws are obeyed not due to coercive sanctions or fear but due to self-imposed code of conduct. This notion though true to some extent (especially in well developed societies) is not universally true.