analytical and historical school of jurisprudence

8/18/2019 analytical and historical school of jurisprudence

1/16

Law is a system of primary and secondary rules;a critical analysis

SS UBMITTEDUBMITTED BYBY

NOELNOEL PANNAPANNA

RROLLOLL. N. NOO. 84. 84

SSEMESTEREMESTER.V.V

SSUBMITTEDUBMITTED TO TO

MMRR. M. MANWENDRAANWENDRA K K UMARUMAR T TIWARIIWARI

FFACULTYACULTY--ININ-CHARGE:-CHARGE:

JURISPRUDENCE-I JURISPRUDENCE-I

SSUBMITTEDUBMITTED ONON

77 TH TH OCTOBEROCTOBER, !"#., !"#.

HHIDAYATULLAHIDAYATULLAH NNATIONALATIONAL LLAWAW UUNIVERSITY,NIVERSITY,RAIPUR, ( C.G.)RAIPUR, ( C.G.)

ACKNOWLEDGEMENT


2/16

I thank my parents, my friends and seniors in the collection of subject matter. I am also

extremely grateful to the university for providing me with adequate facilities essential for the

completion of this project work. Last but definitely not in the least I extend my thanks and

gratitude to Mr. Manwendra Kumar Tiwari, who has been the driving force behind this project.

Hoping that, this project will make the good reading.

ours !ruly

"oel #anna

$


3/16


4/16

OBJECTIVE

!he main objective of this project is to get elaborate knowledge about the primary and secondary

rules through the analysis of Hart and other theorists in order to establish the clarity and essence of

the subject to explain a legal system.

&


5/16


6/16

INTRODUCTION

AN INTRODUCTION TO HART$

H. L. ). Hart Herbert Lionel )dolphus Hart/ (012'(00$/ was an influential 3nglish'speaking

legal philosopher of the twentieth century. He is the author of T%& C'()&*+ ', L- and was

#rofessor of +urisprudence at 4xford 5niversity. Hart developed a sophisticated theory of legal

positivism within the framework of analytic philosophy. Hart also made major contributions to

political philosophy.( His most important writings included C-/0-+'( ( +%& L- (0-0, with

).6. Honor7/, T%& C'()&*+ ', L- (08(/, L- L&+ -( M'-7+ (08%/, O, L-0 (

G&(&-7 (021/, and E00-0 '( B&(+%-8 (09$/.

THE E+ISTENCE OF A LEGAL SYSTEM

#rofessor Hart elaborates two minimum conditions that are individually necessary and jointly

sufficient for the existence of a legal system:

4n the one hand those rules of behaviour which are valid according to the system;s ultimatecriteria of validity must be generally obeyed, and, on the other hand, its rules of recognition

specifying the criteria of legal validity and its rules of change and adjudication must be

effectively accepted as common public standards of official behaviour by its officials.$

It is important to underscore that the first condition requires only general obedience, rather than

acceptance, by ordinary citithe secondary rules? as common standards of official behaviour and appraise critically their own

and each other;s deviations as lapses.== )ccording to the two conditions, it is possible for a legal

( @workin, Aonald. L-90 E8*&. Bambridge: Harvard 5niversity #ress, (098

$ +. )5C!I", !H3 #A4DI"B3 4E +5AIC#A5@3"B3 @3!3A6I"3@ H.L.). Hart ed.

(0-&/.

8

http://en.wikipedia.org/wiki/English_languagehttp://en.wikipedia.org/wiki/Jurisprudencehttp://en.wikipedia.org/wiki/20th_centuryhttp://en.wikipedia.org/wiki/The_Concept_of_Lawhttp://en.wikipedia.org/wiki/The_Concept_of_Lawhttp://en.wikipedia.org/wiki/Jurisprudencehttp://en.wikipedia.org/wiki/Oxford_Universityhttp://en.wikipedia.org/wiki/Legal_positivismhttp://en.wikipedia.org/wiki/Legal_positivismhttp://en.wikipedia.org/wiki/Analytic_philosophyhttp://en.wikipedia.org/wiki/Political_philosophyhttp://en.wikipedia.org/wiki/Political_philosophyhttp://en.wikipedia.org/wiki/Jurisprudencehttp://en.wikipedia.org/wiki/20th_centuryhttp://en.wikipedia.org/wiki/The_Concept_of_Lawhttp://en.wikipedia.org/wiki/Jurisprudencehttp://en.wikipedia.org/wiki/Oxford_Universityhttp://en.wikipedia.org/wiki/Legal_positivismhttp://en.wikipedia.org/wiki/Legal_positivismhttp://en.wikipedia.org/wiki/Analytic_philosophyhttp://en.wikipedia.org/wiki/Political_philosophyhttp://en.wikipedia.org/wiki/English_language


7/16

system to exist in which only officials accept and use the system;s criteria of legal validity.= Cuch

a society, Hart comments, =might be deplorably sheeplikeF the sheep might end in the slaughter'

house. *ut there is little reason for thinking that it could not exist or for denying it the title of a

legal system.=; !o explicate the two conditions, it is necessary to elucidate three distinctions basic

to an understanding of Hart;s concept of law:

(. !he distinction between primary and secondary rules,

$. How a habit of obedience differs from the acceptance of a social rule, and%. !he differences between rules that impose obligations or duties and rules that do not

impose obligations or duties.

PRIMARY AND SECONDARY RULES

)ccording to Hart, a legal system may be best considered a =union= of primary rules of

obligation or duty and secondary rules of recognition, change, and adjudication.% Hart

characteri


8/16

primary rules by providing a rule for conclusive identification of the primary rules of obligation.

Cecondary rules of change will remedy the static character of primary rules by empowering an

individual or body to introduce new primary rules of conduct for the group, or for some class

within it, and to eliminate old rules.= !he remedy for the inefficiency of the social pressure is

secondary rules of adjudication empowering individuals to determine authoritatively whether, on

a particular occasion, a primary rule has been broken. Hart concludes that =the introduction of

the remedy for each defect might, in itself, be considered a step from the pre'legal into the legal

world,= and that =certainly all three remedies together are enough to convert the regime of

primary rules into what is indisputably a legal system.= !he =union= of primary and secondary

rules may be regarded as the =essence= of law, for a modern municipal legal system will combine

both kinds of rules, and the secondary rule of recognition will /(+& all the rules of the system in

that all genuine laws will satisfy the criteria of validity specified by the rule of recognition.

THE DISTINCTION BET'EEN PRIMARY AND SECONDARY RULES

Hart;s basic idea is quite simple. !8- /7&0 are rules of conductF they tell you what your are

legally obligated to do or refrain from/ and what consequences attach to obedience or

disobedience. !hus, the criminal law rules that prohibit theft, forbid certain conduct and provide

for penalties for violating the prohibition. !echnically, the class of secondary rules includes

everything except primary rules. Eor example, 0&)'(- /7&0 are legal rules that allow for the

creation, extinction, and alteration of secondary rulesF secondary rules are *'&:)'(,&(;

rules. !hus, contract law empowers individuals and firms to make contractsF contracts

themselves are usually collections of primary rules.-

6ore precisely, primary rules are rules that govern primary conduct, and secondary rules are

rules that govern primary or secondary rules. !hus, the distinction between primary and

secondary rules is just a bit different than the difference between duty'imposing and power'

- Bohen, 6arshall. =Herbert Lionel )dolphus Hart,= in T%& E())7'*&- ', !%7'0'*%. "ew ork: Browell,

Bollier and 6ac6illan (082/ pp. &(2'9.

9


9/16


10/16


11/16

where the existence of the rule provides an obligation for action, the internal perspective to the

law.

Hart divides rules into two categories, primary rules and secondary rules. )ccording to HartGs

definitions, primary rules either forbid or require certain actions and can generate duties or

obligations. Eor a citi


12/16

should create obligations for citi


13/16

established according to the rule of recognition, whether by the legislature or by judicial

precedent, it becomes part of the legal pedigree and there is little further uncertainty about its

meaning or validity. !his analysis, and even the choice of the word rules implies that the laws

are very explicit and do not contain much room for interpretation. However, in many real life

examples we find that the laws are rather vague or flexible, or that they turn on abstract concepts,

like in contract law, where judges often make decisions based on whether the parties acted in

good faith.

LetGs take the discussion further with the contract law example. 4ne of the parties has

intentionally hidden some documents from its contract partner. ) judge will consider this

evidence of a lack of good faith and it may cost the first party the case, even if the law never

explicitly listed hiding documents among the activities that are considered illegal. Hart would

defend his theory by saying that in this case the judge went outside the boundaries of the existing

law to create a new law, which never existed before that moment, and which states that it is

illegal to hide documents from your contract partner. *ut this seems inconsistent with the way

that judges view their own position in the legal system. "o judge sees his or her role on the

bench as a maker of new laws, but as an interpreter of the existing laws. In the metaphor that

Hart gives of the rules of a game, the judge would be like a referee. !he referee can identify

when a rule was broken, but it shouldnGt be within her power to create new rules. ) judge writing

a decision in the contract example wouldnGt say that there was no rule against concealing

documents, but now that the question has come up, she thinks it would be good to have one. Che

would say that the rule against concealing documents was there all along.

If Hart would believe that any judicial decision in which there is uncertainty or a lack of

specificity within the law in question constitutes the creation of new laws by a judge, then that

amounts to an incredibly large quantity of retroactive laws, which is problematic to the

consistency Hart wishes to maintain in his theory of rules. !he reason that Hart gave for the

necessity of a rule of recognition was to solve the problem of uncertainty about the rules by

making it easy for people to clearly identify what the laws are. *ut if new laws can be created

every time a judge makes a difficult decision, it makes identifying the rules just as difficult as if

there were no rule of recognition at all.

(%


14/16

!his means that judges are cannot be free and unconstrained to make new law in any way they

wish every time a case comes up where existing laws were undefined or when the factors that

influence a decision are not explicitly part of a distinct set of secondary rules. Intuitively, a judge

who decides that hiding documents from a contract partner is wrong, even if this is not explicitly

stated in the law, has made a fair or just choice it would almost seem unfair if the decision had

gone the other way/, but the types of considerations that would guide the judge in making this

decision do not seem consistent with what would fall under the rule of recognition as described

by Hart. @workin makes a similar objection when he discusses the way in which judges make an

appeal to principles when deciding cases. #rinciples are not hard and fast rules since, standing

alone, they do not constrain behavior in the legal sense.0 !hey do however they provide

guidelines for how the law is to be interpreted and applied.

CONCLUSION

0 @workin, Aonald. L-90 E8*&. Bambridge: Harvard 5niversity #ress, (098

(&


15/16

HartGs analysis of primary and secondary rules provides a very useful framework for

understanding the sources of law and how we can distinguish valid laws from invalid ones

without entering into subjective moral territory. HartGs system creates a way to reconcile some of

the inconsistences in )ustinGs theory, while also incorporating some of the more normative

nuances of the law without making any moral claims. Hart observes that people feel an

obligation to follow primary laws, even in cases where the likelihood of being caught and

punished is slim to none. Cince )ustin defines laws as demands issued by a sovereign under

threat of sanctions, this observation cannot be explained by )ustinGs theory. Hart argues that this

obligation does not come from the moral content of the law, but from its validity, which is why

we need secondary laws to determine the validity of the primary laws. *ecause people who take

the internal perspective to the law presume the existence of the rule of recognition, they accept to

be bound by laws that are valid according to the criteria set forth in the rule of recognition and in

the secondary laws derived from this rule. I do feel, however, that HartGs theory on judicial

decisions fails to address the reality of how judges see their role in the legal system, as

interpreters or arbitrators of the law rather than creators of new laws.

BIBLIOGRAPHY

(-


16/16

)ustin, +ohn. T%& !'=()& ', J/0*/&()& D&+&8(& -( T%& U0&0 , +%& S+/ ',

J/0*/&()&. London: eidenfeld and "icolson, (0-&.

Bohen, 6arshall. =Herbert Lionel )dolphus Hart,= in T%& E())7'*&- ', !%7'0'*%. "ew

ork: Browell, Bollier and 6ac6illan (082/ pp. &(2'9.

@workin, Aonald. L-90 E8*&. Bambridge: Harvard 5niversity #ress, (098.

Hart, H.L.). T%& C'()&*+ ', L-. 4xford: Blarendon #ress, (00&.

6ichael #ayne, =!he *asis of Law in Hart;s !he Boncept of Low=, !heCouthwestern +ournalof

#hilosophy 0, no. ( Cpring (029/: (('(2.

+oseph Aar, !he )uthority of Low: 3ssays on Law and 6orality 4xford: Blarendon #ress,

(020/F and !heodore 6. *enditt, Law us Aule ond #rinciple: #roblems ofLegol #hilosophy

Ctanford, Balifornia: Ctanford 5niversity #ress, (029/.

(8

analytical and historical school of jurisprudence

Documents

Transcript of analytical and historical school of jurisprudence