THE CONCEPT OF LAWHart, H.L.A.(Andr Jan L. Cardeo)Chapter V: Law as the Union of Primary and Secondary Rules1. A Fresh Start(Note: Hart basically criticizes Austins theory that law is coand bac!ed bythreat and is eant to be ubi"uitous in its a##lication.) ->The simplemodel of lawas the soerei!n"s coercie orders failedtoreproduce some of the salient features of a le!al system, herein summari#ed$ $irst% Austin"s theory is more applica%le as criminal law &and not to allforms of laws' and this type of law also affects the ones who enact it&not (ust on the people %ein! !ien the commands %ac)ed %y threats'.&econd% there are other types of laws such as pu%lic &conferrin! le!alpowers to ad(udicate or le!islate' or priate &creatin! le!al relations'.'hird% some le!al rules differ in their mode of ori!in &they do not comefrom e*plicit prescription' such as custom, laws of +od, etc. $ourth%Austin"stheoryfailstoconsider, intermsof theha%ituallyo%eyed soerei!n, %oth the continuity of law and persistence of law,and the soerei!n cannot %e identified with either the electorate or thele!islature of a modern state.->The use of ancillary deices to support Austin"s theory also failed as theycannot %e applied to modern le!al systems$(ne de)iceis the notion of tacit order, li)ened to a !eneraldeli%erately not interferin! with the orders !ien %y his su%ordinates.Another de)iceis the notion of power-conferrin! rules as merefra!mentsof rules%ein!restrictedtodirectionsappliedtoofficials.This does not ta)e into account the peoples" perspectie.->Allthese ar!uments to support Austin"s theory failed %ecause they do notta)e into account the idea of two different %ut related types of rules and theinterplay %etween them$*n +riary (,asic ty#e) -ules, men are re,uired to do or a%stain fromcertain actions whether they want to or not. This type of rules imposeduties and concern physical moement or chan!es.*n &econdary (or +arasitic to the $irst) -ules, men may introduce newrules, e*tin!uish, modify, or determinethecontrol of oldrules, %ydoin!or sayin!certainthin!s. Thistypeof rulesproidefor thecreation or ariation of duties or o%li!ations &not (ust physicalmoement or chan!e'.-t is the union of Primary and Secondary Rules that is the )ey to the science of(urisprudence.2. The Idea of Obl!ato"(Note: Hart basicallydiscussesabout thedi..erenceontheassertionthatsoeone /was obli0ed1 and that soeone /had an obli0ation1 to do it.)->Austin"s .flawed/ theory started from the correct appreciation of the fact thatLaw ma)es human conduct o%li!atory and non-optional. 0ut .%ein! o%li!ed/and .%ein! under an o%li!ation/ are inherently two different thin!s.An e*ample is used$ +unman A orders person 0 to hand him moneywith the threat of shootin! him if he does not comply. -f Austin"s theoryis applied, then +unman A is the soerei!n !iin! the order &%ac)ed%ythreat'andthat 0waso%li!ed. Thereinliestheflawin Austin"stheory, since 0 was o%li!ed to hand oer money for fear of harm, %uthe was not under any o%li!ation &duty' to !ie the money..0ein! o%li!ed/ normally carries the implication that the act was done, while.%ein! under an o%li!ation/ is rather independent on whether the act was doneor not.0ein! o%li!ed &forced to do somethin!' is a psycholo!ical state dependent one*ternal circumstances, while hain! an o%li!ation &%ein! under a duty' doesnot re,uire some psycholo!ical conditions 1 standards of ri!htness orwron!ness, %eliefs, or moties. The o%li!ation &duty definition' is notdependent on facts for its alidity, or that facts cannot distort its alidity.->Some theorists li)e Austin disre!ard the aspect of %eliefs 1 fears 1 moties ofthe person &su%(ectie and aryin! situations' and rather focus on statementsof o%li!ation as the .chance or li)elihood/ for a person to suffer punishment oreil in the hands of others in the eent of diso%edience or non-compliance.->There are ,uite a few reasons to re(ect this interpretation &ofchance1li)elihood'$'he.undaental ob2ectionisthatAustin"stheoryo%scuresthefactthat deiationor non-conformityre!ardin!rulesareareasonforapplyin!thesanctions, andnot (ust !roundsfor apredictionthathostilereactionwill follow. Thesanctionisthemotiationfor not%rea)in! the law.'hesecond(si#ler) ob2ectionisthat what if thepersonhadano%li!ation &and was li)ely to suffer if he diso%eyed' %ut thensuccessfully escaped (urisdiction wherein there is no a%solutelychance he would %e punished if he diso%eyed.->Tounderstandthe!eneral ideaof ano%li!ationonemust turntothee*istenceof social ruleswhichcreatethat o%li!ation. Thissituation&whichincludes social rules' contri%utes in two ways the statement that a person hasan o%li!ation$$irst%thee*istenceof suchsocial rules ma)in!certaintypes of%ehaior a standard is the %ac)!round 1 proper conte*t for thestatement that a person has an o%li!ation.&econd, the distinctie function of the statement &that a person has ano%li!ation' istoapplysucha!eneral ruletoaspecificperson%ycallin! attention to the fact that his case falls under it &of hain! ano%li!ation'.->Thestatement that one.has/ or is.underano%li!ation/doesimplythee*istence of a rule. Howeer, there are some rules which re,uire certain typesof %ehaior without o%li!atin! anyone &such as rules of eti,uette or speechwhich are not really .duties/ %ut are rules nonetheless'.->Rules are thou!ht of as imposin! o%li!ations due the importance orseriousnessof social pressure%ehindthem&thedemandforconformityisinsistent and the social pressure to deiants is !reat'.Rules supported %y sufficient social pressure are important %ecause they aredeemed necessary for the maintenance of social life and %alance. Such rulesmay %e customary in ori!in.There is not centrally or!ani#ed system for punishment of %reach such rules&social pressure'$ -t may %e er%al disapproal 1 appeal or it may depend onthe feelin!s of shame 1 remorse 1 !uilt. -f physical sanctions are present andare not administered %y officials %ut rather %y the community, it is consideredas primitie or rudimentary form of law.->The .seriousness/ of social pressure %ehind the rules is the primary factor indeterminin! whether these rules !ie rise to o%li!ations. There are two othercharacteristics which !o with this primary one$$irst, rules o%iously essential and restrict the free use of iolence arethou!ht of aso%li!ations. Rulesarealsoo%li!ationsif theyre,uiretruth or honesty and )eepin! with promises or specifyin! one"s distinctrole in a social !roup &in terms of duties'.&econd, conduct re,uired %y these rules may, while %enefitin! others,conflict with what the person owin! the duty may wish to do &inolessacrifice or renunciation'.The possi%ility of conflict %etween o%li!ation 1 duty and interest is one of thetruisms &clich2s' of lawyers and moralists.->Socialpressure appears as a chain %indin! those with o%li!ations so thatthey aren"t free to do what they want. 3n the other end of the chain are eitherofficial representaties insistin! performance or e*actin! penalty &criminal law'or !roups 1 indiiduals who may choose whether or not to insist performance&ciil law'.->3%li!ations need not %e a necessarily %e due to social pressure &feelin!s ofcompulsion 1 pressure'. An e*ample would %e a swindler who has nocompulsion 1 pressure to pay when he actually should hae an o%li!ation topay.3%iously, to .feel/ o%li!ed and to .hae an o%li!ation/ are two different thin!s&thou!h they are %oth .noncommittal/ in nature'.->There is a need to properly differentiate %etween Austin"s theory thatstatement of o%li!ation as a prediction of hostile reaction to deiation and theidea %rou!ht forth that it should not %e to predict %ut to say that a person"scase falls under such rule, in order to %etter understand the distinctie style ofhuman thou!ht 1 speech 1 action which is inoled in the e*istence of rulesand constitutes the normatie structure of society.Thedifferentiationcan%e%etter e*plainedthrou!h-nternal and4*ternalpoints of iew$*n 34ternal #oint o. )iew%the o%serer iews rules in terms ofo%sera%lere!ularitiesof conduct, pro%a%ilitiesandsi!ns. Tothee*ternal o%serer, deiation from the normal conduct is a si!n that ahostile reaction will follow and nothin! more.Ane*amplewould%eatrafficli!ht whereinthee*ternal o%sereriews as a natural si!n that people will %ehae in certain ways, andthe e*ternal o%serer would miss out a whole dimension of social lifeof those %ein! o%sered &that the red li!ht is not (ust a si!n that otherswill stop, %ut a .si!nal/ for them to stop, ma)in! stoppin! durin! redli!ht a standard of %ehaior'.*n *nternal #oint o. )iew, this %rin!s into account the manner in whichthe mem%ers of the !roup loo) at their own %ehaior. -t is the internalaspect of the rules from their internal points of iew &referrin! a!ain tothe traffic li!ht e*ample'.->Thelifeof anysocietywhichlies%yrules&le!al or ille!al', isli)elytoconsist in tension %etween those who oluntarily accept the rules &and seetheir own and other people"s %ehaior in terms of the rules' and those whore(ect the rules and (ust follow them to aoid the &e*ternalpoint of iew' ofpossi%le punishment.#. The Ele$e"ts of La%(Note: Hart basically discusses the 5 secondary rules o. reco0nition% chan0e%and ad2udication. 6hen these are cobined with the #riary rules o.obli0ation% we now ha)e the center o. a le0al syste.)->Asociety can e*ist without courts, le!islature, or officials. These areprimitie communities and some stilldo e*ist today. -n this settin!, the onlymeans of social controlis the !eneralattitude of the !roup towards its ownstandard modes of %ehaior.->Such system is li)ened to .custom/ %ut this term is not used since it impliesery old rules and less social pressure. The proper description to this.primitie system/ of a social structure is that it only needs Primary Rules.->To satisfy the definition of a society liin! on Primary Rules alone, certainconditions must %e satisfied$$irst, rules must contain some restriction on the free use of iolence,theft, anddeception which men are tempted %ut must !enerallyrepress if they are to lie in close pro*imity with each other.&econd, since there is an e*istin! tension %etween those who acceptthe rules and those who re(ect the rules &and (ust follow them to aoidpunishment',those who accepttherules&from theinternal pointofiew' must %e the ma(ority. Since if the ratio would %e 56$56 or if thosewhore(ect arenot intheminority,thentherewould%elesssocialpressure for them to comply with their o%li!ations.->The a%oe conditions of a .primitie community/ setup can only %eapplica%le to a small community where the %onds of )inship, commonsentiment, and %elief are present in a%undance to surie a re!ime ofunofficial rules.->There will %e defects if this setup is applied to a lar!er and more comple*society$$irst de.ect, the rules would possess .uncertainty/ %ecause it would%e difficult to identify them as there is no standard set of rules, andthere would %e no e*planation with re!ard to their scope ofapplication. This is similar to the rules of eti,uette e*ample.&econd de.ect, the rules may %ecome .static/ %ecause there is simplyno !rowth &if we (ust rely on primary rules' and there will %e no way ofadaptin! the rules to chan!in! circumstances either %y eliminatin! oldrules or introducin! new ones &no system in place for such suddenrule chan!es, only a ery slow process of additional customs throu!hyears or decades'.'hird de.ect, there will %e .inefficiency/ of social pressure %ecause it istoodiffuseinalar!esocietyandthereisnoa!encyauthori#edtoinflict a sanction. This mi!ht result in ar%itrary %iases, endettas &forself-help, personal reen!e, etc.', or nostandardpunishment foraryin! iolations.->The remedy to these defects is to mer!e the primary rules of o%li!ation withsecondary rules which are rules of a different )ind. -t is this ery union that willta)e the society from %ein! pre-le!al to le!al$$irstreedy(.or uncertainty)% is the /-ule o. -eco0nition1.-t is themaster rule. -t is a simple or a comple* instrument which possessesfle*i%ility for it may not %e more than a list or a te*t of rules found in awritten document or cared in some pu%lic monument. 7hat ma)esthiscrucial istheac)nowled!ment of referencetothewritin!as.authoritatie/. Thisruleisconclusieidentificationof theprimaryrules of o%li!ation. This proides unification of rules !ies %irth to ale!al system.&econdreedy(.or staticrules)% arethe/-uleso. Chan0e1.Thisempowers people to introduce new primary rules and to eliminate oldones %y specifyin! certain procedures li)e le!islatie enactment. Therules of chan!e may also ena%le priate indiiduals to create ri!htsand o%li!ations in the form of wills, contracts, transfer of property, andother oluntarilycreated structuresofri!hts and duties which typifylife under law.'hird reedy (.or ine..iciency)% are the /-ules o. Ad2udication1.Thisconfers powers on certain indiiduals to ar%itrate or (ud!e and alsodefinetheproceduresinaccordancewithwhichad(udicationwouldta)e place. These secondary rules proide for the centrali#ed official.sanctions/ of the system.->7ith the union of the primary rules of o%li!ation with the secondary rules ofreco!nition, chan!eandad(udication, wenowhaetheheart of ale!alsystem.->-t must %e noted thou!h that the union of primary and secondary rules is thecenter of a le!al system %ut it is not whole and if one moes further away fromthe center, more elements will %e defined &in 8hapter 9-'.Chapter VI: The :oundations of a Le!al System1. &'le of &e(o!"to" a"d Le!al Valdt)(Note: Hart basicallydiscussestheulti#licityandhierarchyintheruleo.reco0nition: constitution% le0islation% 2udicial #recedent% etc. 'he rule o.reco0nition is the ultiate rule.)->The Rule of Reco!nition"s main function is to identify whether another rule ispart of thele!al systemor not. 7hereer sucharuleof reco!nitionisaccepted, %othpriatepersonsandofficialsareproidedwithauthoritatiecriteria for identifyin! primary rules of o%li!ation.->The criteria may ta)e any one or more of the ariety of forms, which include$Reference to authoritati)e te4t7Reference to le0islati)e enactent7Reference to custoary #ractice7Reference to 0eneral declarations of specified persons; orReference to #ast 2udicial decisions in particular cases.->-n a modern le!al system where there are a ariety of sources of law, therule of reco!nition is correspondin!ly more comple*. This commonly includesa written constitution, an enactment %y le!islature, and (udicial precedents.->-n order to aoid conflict these sources of law are ran)ed in order of relatiesu%ordination and primacy.An e*ample is the 4n!lish le!al systemwhere common lawissu%ordinate to statute &Acts of Parliament'.->-n a le!al system the rule of reco!nition is seldom stated, %ut its e*istence isshown in the way in which particular rules are identified, either %y courts, theirofficials, or priate persons or their adisors.An e*ample would %e in the scorin! rule of a !ame where actiities ofscorin! &runs, !oals, etc.' are not formulated %ut used %y officials andplayers in determinin! the score. And the .declarations/ of umpires 1scorers hae a special authoritatie status &similar to (ud!es'.->A court usin! the unstated rule of reco!nition to identify particular rules ofthe system is a characteristic of the internal point of iew.->Therearetwoformsof e*pressionfor sharedattitudeof acceptanceofrules$'he*nternal &tateent, manifestin!theinternal point of iewandreco!ni#es some particular rule in the system as alid without statin!that it is accepted. 4*ample$ .-t is the law that, wherein if asituation arises where the common law, or localor !eneralcustom,contradicts with it, parliamentary enactment will preail. 'he8ltiate-uleof thesystemistheRuleof Reco!nitionitself%ecause one cannot !o further than that. -t is ultimate %ecause it isneither alid nor inalid %ut simply accepted as appropriate for use inthis way.An e*ample is the meter %ar in Paris and the 0i! 0en in London whichare considered to %e the ultimate tests for correctness ofmeasurement and time respectiely.2. Ne% *'esto"s(Note: Hart basically discusses the "uestionin0 o. the /e4istence1 o. a le0alsyste)->-t is ital todistin!uish%etween.assumin!alidity/ and.presupposin!e*istence/, %ecause if one does not do so it o%scures the assertion that sucha rule e*ists.->The e*istence of the rule of reco!nition is a matter of empirical fact and nota normatie statement.->The two minimum conditions necessary and sufficient for the e*istence of ale!al system are$$irst%the rules of %ehaior which are alid accordin! to the system"sultimate criteria must %e !enerally o%eyed. This is the only conditionthat priate citi#ens need to satisfy.&econd% the rules of the system &re!ardin! criteria of le!al alidity andrules of chan!e 1 ad(udication must %e accepted as common pu%licstandardsof official %ehaior%yofficials. Thisistheconditionthatpu%lic officials must also satisfy.->The officials of the le!al system must hae an internal attitude towards theruleof reco!nitionof thesystem, andit isnot necessary, althou!hit isdesira%le, that priate citi#ens hae an internal attitude towards rules as well. ->Thereshould%eaunified1 sharedofficial acceptanceof theRuleofReco!nition &with the criteria of alidity'.->The alid le!al rules of the system must %e .o%eyed/ %y %oth officials andpriate citi#ens.->-n the e*tremecasewhere an internalpointofiew is only amon!sttheofficials, society would %e deplora%ly sheep-li)e &and endin! at theslau!hterhouse', %ut it would still remain a le!al system.->The assertion that a le!al system e*ists is a two-pron!ed statement loo)in!%oth towards o%edience %y ordinary citi#ens and to the acceptance of officialsof secondary rules as critical common standards of official %ehaior. #. The Patholo!) of a Le!al S)ste$(Note: Hart basically discusses the conditions .or the brea!down o. a le0alsyste)->A le!al systeme*istswhen%oththeofficial sector &officials' andpriatesector &citi#ens' are con!ruent 1 similar in their concerns with the law. -f %othpoints of iewcoincidethereis harmony andthele!al systemis alid.0asically, therulesreco!ni#edasalidat theofficial leel are!enerallyo%eyed.->Howeer, the official sector sometimes %ecomes detached from the priatesector &thereisnolon!er any!eneral o%ediencetotheruleswhicharesupposedly alid accordin! to the criteria of alidity'.The%rea)downinthecomple*con!ruent practicemay%eduetoariousdistur%in! factors$*. there is a -e)olution, where there are rialclaims of !oernancewithin the !roup and there may %e an ille!al su%stitution of officials inthe system.*. thereis3ney(ccu#ation, wherethereisarial authorityto!oern.*. there is Anarchy or ,anditry, where there is simply the %rea)down ofordered le!al control.?oreoer, when unity amon! officials partly %rea)s down due to disa!reementoer certain constitutional issues, this also leads to the %rea)down of the le!alsystem.->Thereisnoe*act determinationwhetherale!al systemceasestoe*ist,%ecausetheremay%ehalf-waysta!es&e*ample$ !oernments-in-e*ile' orthere is stilla considera%le chance of restoration or if the distur%ance is anincident of war and that the future is o%iously uncertain.->@ifficulties arise upon restoration from interruptions of le!al systems, suchaswhat was.law/ durin!anenemyor re%el occupation&if thele!itimate!oernment returns ictoriously'.This may %e raised as a ,uestion of international law, or retrospectie law may%edeclare such that the lawsof the restored system hae always %eenineffect een durin! .interruptions/.An e*ample situation on a le!al system ceasin! to e*ist would %e theindependence of 0ritish colonies wherein they would nowhaeseparate le!islatures and laws, with the laws of the colonial power nolon!er operational in the respectie former colonies.