Download LEGAL POSITIVISM 2

LEGAL POSITIVISM 2
LAW AS UNION OF PRIMARY AND SECONDARY RULES
Professor Susan Dimock
Copyright © Susan Dimock 2007
Not to be used without written permission of the copyright holder.
H.L.A. HART (1907-1992) The Concept of Law 1961
Criticism of earlier COMMAND versions of positivism:
1) Unlike coercive commands, laws usually apply to those who enact them as well as
others.
2) Many kinds of law cannot be characterized as coercive commands:
 Those conferring legal powers to adjudicate or legislate (public powers)
 Those conferring legal powers to vary legal relations (private powers)
3) There are legal rules which cannot be orders, because they are not brought into
law by explicit prescription.
4) Difficulties involving the notion of a sovereign in modern states:
 Fails to account for the continuity of legislative authority
 Cannot be identified with the electorate or legislature of a modern state
 Denies self-binding character of legislation.
5) Confuses “obligation” and “obliged”
 Austin: “obliged” = has certain motive to comply; “obligation” = prediction of
sanction.
 Hart: Gunman situation (surely there is no obligation to pay); obligation differs
from being obliged.
Obliged



Based on motive.
Usually implies it is followed.
Psychological.
For Austin, obligations were just predictions of the likelihood that sanctions would be
imposed upon a person of she disobeyed a command.
Obligation


Independent of motive.
May be disregarded.
If a person has an obligation, that is a reason or justification for a negative response and
sanctions (not just a prediction).
1
It makes sense to speak of obligations even when there is no chance of sanctions being
applied for their breach.
Social Rules
What is missing in the command theory is the notion of a Rule, particularly social rules.
Rules establish standards of behaviour.
Rules establish the conditions under which one may be under obligations.
Rules establish obligations when the general demand for conformity is insistent and the
social pressure brought to bear upon those who deviate or threaten to deviate is great.
Pressure may include physical sanctions or social disapproval/condemnation.
The rules that impose obligations, that are supported by serious social pressure, are
thought important because they are believed to be necessary for the maintenance of social
life or some highly prized feature of it: rules against violence; rules requiring honesty and
promise keeping; rules defining social roles or functions.
The rules that impose obligations may oppose the self-interest of the person so obligated.
There is a standing possibility of conflict between duty and self-interest.
Internal v External Point of View towards Rules
External




Related to predictive theory of obligation
Mere regularities of behaviour plus hostile reactions to actions contrary to the rules
Rules are treated merely as signs that certain things will happen.
Some members of the public may have only this point of view toward law
Internal





Use the rules as guides to social life
Use as basis for claims, demands, sanctions, guilt
Basis of obligations and duty claims
Accept the rules
Necessary that those practicing law take this point of view toward the legal rules
Primary v. Secondary Rules
Primary

Legally primitive societies have only primary rules of obligation for social control.
2




Given human nature and normal circumstances, such rules must include restrictions
on the free use of violence, theft and deception, as well as duties to perform services
and contribute to the common life.
A significant majority must take the internal point of view toward the rules (because
they are only enforced by social pressure).
Such rules can be sufficient only in a small, close-knit, homogeneous group of
people.
Primary rules govern conduct; they have actions or omissions as their objects.
3 Defects of having only Primary Rules
1) Uncertainty
If there is a dispute about what the rules are or the precise scope of a rule, there is no
authoritative text or official to settle the dispute.
Solved by the Rule of Recognition




Specifies some feature or features possession of which by a suggested rule is taken as
a conclusive affirmative indication that it is a rule of the group to be supported by
social pressure.
May be simple or complex: e.g., an authoritative text specifying the rules or a
constitution. It may be a procedure, or a specification of sources of law (custom,
precedent, statutes, or a person)
The crucial thing is that some text or person is accepted under this rule as
authoritative, as providing the proper way to settle questions about whether
something is or is not a primary rule of the group.
Provides unity to the rules, making them a system of law.
2) Static
The only way to change the rules is by the slow process of changing the attitudes of the
group about some conduct. There is no means to purposefully introduce new rules or
eliminate old ones. There is no means to transfer rights or remove duties.
Solved by Rules of Change (Legislation)




Rules empowering an individual or group to introduce new rules or eliminate old one
for the society (legislative enactment and repeal).
May specify certain procedures.
Rules of public power.
Rules of private power (limited legislative power by individuals).
3) Inefficiency
3
The social pressure by which the rules are maintained may be inefficient. There are no
officials empowered to determine authoritatively whether a rule has been violated and to
impose sanctions.
Solved by Rules of Adjudication




Establish courts, judges, jurisdiction.
Empower some individuals to authoritatively decide if a primary rule has been
violated.
Specify procedures.
May also centralize social pressure, by specifying or limiting penalties for violations
and conferring on judges the exclusive power to impose sanctions.
The Rule of Recognition, and Rules of Legislation and Adjudication are all secondary
rule. Secondary rules are rules about the rules. They specify the ways in which the
primary rules may be conclusively ascertained, introduced, eliminated, varied, and the
fact of their violation determined.
The union of primary and secondary rules = legal system; this is the core of foundation of
a legal system.
With secondary rules we can explain the notions of legislation, adjudication, punishment,
authority, rights and duties, sources of law, officials, powers.
Those who are officials within the legal system must take the internal point of view to the
rules, especially the rules that create their official positions and define their powers.
Rule of Recognition and Legal Validity
Rule of Recognition:
 Rule of recognition is accepted and used to identify primary rules of obligation.
 Provides authoritative criteria for identifying primary rules
 May be complex, recognize multiple sources of law.
 Must specify a hierarchy of sources of law, with one being supreme.
 Not usually stated; its existence is shown by the way primary rules are identified (by
judges, officials, lawyers and citizens).
 Analogy to scoring rules of a game; used rather than stated; both have officials who
are authorized to apply the rules (judges or referees).
 Use by people to identify the rules of the system is characteristic of the internal point
of view. Use to identify the law (“It is the law that…”) indicates acceptance.
 Internal point of view is most apparent in the behaviour of judges; they treat the rule
as a reason for their decision, not as a prediction of their own behaviour.
 What the rule of recognition is can only be established by looking at the practices of
those within the system.
Validity
4





Can only be understood relative to a rule of recognition.
A rule is valid = it passes all the tests / meets all the criteria provided by the rule of
recognition and so is a law of the system.
Judgments of validity are made within a legal system or a system of rules.
Rule of recognition is the ultimate rule; it provides the limit to questions of validity.
Rule of recognition is itself neither valid not invalid; it is a social fact.
Efficacy vs Validity (of particular rules vs systems of rules).
Rule of recognition as foundation of validity provides a better account of the existence
conditions of a legal system than either Austinian command theory or legal realism.
5