HLA Hart - Positivism - Jurisprudence Notes

·         Hart primarily deals with the following:-

o   Law and coercion

o   Law and morality

o   Nature of rules (Primary & Secondary)

·         He criticizes Austin’s command theory for being an external viewed imperative model of law disregarding the internal element of obedience

·         He also criticizes Austin’s theory for limiting laws to be consisted of commands backed by sanction. He talks about power conferring laws such as laws of contract which do not fit in Austin’s theory.

·         He makes a case that people do not obey law because of threat of sanction but because of people’s acceptance of it being binding in nature. Eg:- A gunman who robs a banker by giving him threat of shooting in case of noncompliance is not making law despite it being a command backed by sanction. It is in such situation the Austin’s theory fails.

Rules and Obligations

·         Hart’s theory is different from that of Austin as it distinguishes the different kind of obligations.

·         He uses linguistic phrases ‘under an obligation’ and being obliged to explain the difference. In the gunman example, when the gunman ask banker to give away the money to the gunman, the banker is not under an obligation to give the money but is being obliged to do so.

·         Similarly, if one jumps red light even if knowing the fact that he won’t be fined the obligation to stop won’t go away despite the absence of sanction and the person will remain under an obligation to follow traffic rules. (The obligation to follow rules persists even in absence of sanction)

·         Thus, in Hart’s model rules are followed not because of a sanction but because of society’s acceptance of the rule being binding.

·         The idea of a rule implies an obligation.

·         Hart distinguished rules of law other miscellaneous rules such as rules of grammar and rules of social etiquette. Eg: People attending church on Sunday is a habit and cannot be considered as a law.

·         He considers rules which generate pressure but short fall of physical sanctions as moral obligations but if they do exert physical sanctions, they can be considered primitive or rudimentary kind of law imposing legal obligations.

External and internal aspects

·         External Aspect of a rule is statement of observed fact.

·         Internal Aspect of a rule is a sense of obligation to follow the rule.

·         For example, an alien on earth might simply stop at red light without having a sense of obligation to follow the rules but  a person who follows traffic rule in his country follows them because he understand the need of traffic safety and thus has an obligation to follow the same.

Primary and secondary rules of obligation

·         Primary rules are those rules of law which impose basic duty on individuals. They determine what people ought and ought not to do and thereby create obligations which people of a society need to follow. Eg:- Penal Code, Family Code 

·         Secondary rules are those rules of law which governing the creation and operation of the primary rules.

·         Secondary rules are power conferring rules in a way that they check the validity of primary rules. These rules lead to establishment of judiciary, executive and legislature.

·         As per Hart, a developed legal system must have both primary and secondary rules.

·         In absence of secondary rules, legal system will be a primitive one and suffer from the following:-

o   Absence of authoritative means to remove ambiguity in meaning and application of laws

o   Primary rules of obligation are relatively static

o   No authority for dispute resolution

Rule of Recognition

·         Rule of recognition is the ultimate criterion for verifying the validity of both primary and secondary rules.

·         In most of the countries’ constitution is the ultimate rule of recognition.

·         Hart’s theory of a developed legal system demands the following:-

o   primary rules that are considered valid by the rule of recognition are generally obeyed by citizens

o   rule of recognition is accepted by officials as the standard of official behaviour

·         Rule of recognition can change through peaceful or violent means.

·         Change in rule of recognition need not necessarily affect primary rules. Eg:- When India gained independence from Britain, British laws found to be consistent with constitution remained in power.

Hart on International Law

·         Despite absence of authoritative rule of recognition in international law Hart considers it to be law properly so called.

·         Hart justifies this claim on his belief that law can exist without a legal system.

·         He also asserts this claim on the grounds that International law rules resemble the primary rules of obligation in a primitive society. They are law because sovereign states consider them as obligatory and use them to press their claims and to evaluate and criticise the conduct of other states.

Criticism of Austin

·         Austin’s theory does not take into account power conferring laws such as laws of contract.

·         Austin’s theory does not differentiate rules from habits. Rule requires internal acceptance for obedience of rile unlike a habit.

·         Austin theory does not take into consideration the secondary rules.

·         Austin theory considers the sovereign’s power to be unlimited while Hart’s theory does not require the same. Sovereign’s power could be limited to certain areas and if sovereign exercises its power outside its power then that is not law as sovereign did not had the power itself to go beyond its scope.