Law as the Union of Primary and Secondary Rules: Summary and Analysis

In his attempt to portray the failures of Austins argument of the law as the sovereigns coercive orders, Hart characterizes the law as a combination of primary and secondary rules. Primary rules are those that declare the rights and restrictions for all citizens. These rules make up the standard code of conduct or behavior, and delineate what a citizen can and cannot do. Secondary rules are those that extinguish or modify old ones, or in various ways determine their incidence or control their operations, (81). These rules determine the ways in which primary rules can be recognized, changed, and adjudicated. Secondary rules that determine recognition convey the way in which laws become valid. Those that establish the means for changing primary laws include Article V of the Constitution, the process for amendment. Finally, rules of adjudication decide how to resolve legal disputes or inefficiencies in primary rules. Hart does not define the law in terms of these primary and secondary rules, but rather argues for their power of legal explanation and analysis. Hart finds several erroneous features within Austins argument, such as the idea of a forceful order backed by a threat only being applicable to those who are given the order, or the types of laws that are not and cannot rationally be backed by threats to begin with. One feature of Austins argument that Hart does agree with, however, is his starting point, which is the idea that human behavior is either obligatory or non-obligatory. Nonetheless, in this feature is where Hart finds the most error. He distinguishes between having been obliged to perform a certain action and having an obligation to perform an action. He describes being obliged to do something as being a statement about the beliefs and motives with which an action is done, (82) and contrasts this with an obligation to do something by asserting that these beliefs and motives are

irrelevant to this obligation. The obligation remains true regardless of the persons feelings and state of mind, whereas one who is obliged to do something has weighed the consequences of not doing it and generally has made a decision to act or not to act. For example, a man who has witnessed a murder and is being threatened by the murderer to keep quiet may or may not feel obliged to call the police and report the crime, based on his feelings and beliefs toward the seriousness of the consequences. This man has no obligation to report the crime, yet could possibly lay awake at night for months on end if he fails to report it. On the other hand, a man who fails to pay his taxes had an obligation to do so, but may feel no guilt or discomfort whatsoever as a result of his decision. Hart puts forth that some theorists have defined an obligation by the probability that a punishment will be suffered in case of disobedience of this obligation, referring to this point of view as the predictive interpretation, (84). But this view, he points out, ignores the fact that these such punishments are internal to the rule, which is the rationale for inflicting them. In addition, this predictive interpretation also ignores the possibility of there being no chance at all of inflicting the punishment for disobeying an obligation, in which case the obligation would not be considered as so, even though it should. In this manner, Hart validates the notion that the prediction of punishment may be separate from or inconsequential to the existence of an obligation. He then asserts three characteristics that give rise to an obligation. The primary characteristic is the seriousness of the social pressure behind the rules, or the severity of the demand for compliance of the obligation within a society. The other characteristics include the importance of an obligation due to its necessity for social order and peace, like disallowing violence and deceit, and finally, the conflict between an obligation and personal interest.

Hart distinguishes between two points of view of legal rules. The external point of view is that of an observer of certain behavior or conduct. This observer is outside the realm of the obligation or duty and this obligation or duty is not applicable to him. Thus, he can readily observe the actions of a group, along with their behavioral patterns, allowing him to make judgments about their conformities and possibly live among them in peace. The internal point of view is the view of those to whom the obligation or duty is applicable and who have accepted it as part of their standard code of conduct. These individuals have a more intrinsic understanding of this code and the reasoning behind it, and would be more likely to feel remorse or panic as a result of disobedience. Hart describes the imagination of a social structure in which the only mode of social control is the attitudes and beliefs within the society toward its own behavior, referring to studies of primitive communities. He admits that this type of structure is in fact possible, but only up to a certain size and under certain conditions. These conditions include restrictions on violence, theft, and deception, as well as a social pressure to accept and conform to the rules of the group (91). Hart argues, however, that other than within a small, tight-knit community, this type of social structure will inevitably produce defects, including uncertainty, static nature of the rules, and inefficiency of the social pressure which maintains the rules of the society. All in all, Hart asserts that these defects will not allow such a society to survive and the remedy he proposes is the union of a set of primary and secondary rules.