“Law as the Union of Primary and Secondary Rules” 24/12/1978

Dearest Jennifer,

I hope you’ve been getting the letters I’ve been sending. I reckon they’re not the most romantic or interesting of
letters, but rest assured each and every word came from my heart. I love you. That is all I know.

But all I know, too, is that the simple model of law as the sovereign's coercive orders failed to reproduce some of the
salient features of a legal system.

Let me start by contrasting primary and secondary rules. Primary rules are that which require human beings to do or
abstain from certain behaviours. In other words there is an imposition of duties which we have to perform.

On the other hand, secondary rules pertain to operations that apply to both movement and change and the creation
of obligations. In short, they confer powers, public or private. Most of the features of law which have proved most
perplexing and have both provoked and eluded the search for definition can best be rendered clear, if these two
types of rule and the interplay between them are understood. Hence, the convergence of primary and secondary
rules that is the key to the science of jurisprudence.

Austin’s theory though flawed got one thing right - laws make human conduct obligatory. However, being under an
obligation and being obliged are inherently two different things. Being obliged to something is a psychological state
dependent upon external circumstances, whereas, having an obligation does not require psychological conditions.
One can have an obligation despite certainty that sanctions could not be applied. Understanding being obliged as
distinct from having an obligation is a preliminary for understanding legal obligations. Austin and his other friends
understand claim to understand how obligations work interms of the chance or likelihood that the obliged would be
punished by others. However, this makes obligations merely mental, not compulsory. Also according to Austin, the
difficulty is that if the disobedient person can keep the probability of punishment low, then no law applies to him.
One needs to look at the internal aspect of rules that people apply to themselves.

The fundamental objection is that the predictive interpretation obscures the fact that, where rules exist, deviations
from them are not merely grounds for a prediction that hostile reactions will follow or that a court will apply
sanctions to those who break them, but are also a reason or justification for such reaction and for applying the
sanctions.

The statement that someone has or is under an obligation does indeed imply the existence of a rule. Instead, rules
obligate when the demand for conformity is insistent and social pressure accompanies those who deviate from it or
threaten to.

A person who breaks the rules might help himself, but in the long run it damages the community as a whole. For
those in society, violation of a rule is not just a prediction of reaction, but a justification for it.

When a social group has certain rules of conduct, this fact affords an opportunity for many closely related yet
different kinds of assertion; for it is possible to be concerned with the rules, either merely as an observer who does
not himself accept them, or as a member of the group which accepts and uses them as guides to conduct.

In primitive cultures, only primary rules exist, so that they form not a system of law, but a set of separate standards.
The rules by which the group lives will not form a system, but will simply be a set of separate standards, without any
identifying or common mark, except of course that they are the rules which a particular group ofhuman beings
accepts.
They will in this respect resemble our own rules of etiquette. The structure is inefficient because it lacks an
adjudicative component necessary to solve conflicts. In order to remedy these faults it is crucial to merge the primary
rules of obligation with secondary rules.

Truly Madly Deeply Yours,

Herbert Lionel