The Jurisprudence of the union of Primary and Secondary Rules: An analysis of HLA Hart’s theory
Saksham Kumar, Student, New Law College, BVDU, Pune
Legal positivism is that school of jurisprudence According to which the legitimate sources of law are only the ones which are in written form. According to John Austin laws is the command of the sovereign which is backed by sanction. However, HLA Hart condemned this view, and he said, should be a completely new framework for the law in the form of rules. He has made this criticism in his essay named Laws as a union of the primary and secondary rule. However, HLA advocates the view that for the normative aspect of the law there needs to be an evolution of the concept of rules. According to him, rules are independent and constructive; however, unlike the rules of the command does not describe what happens; instead, it is more concerned with what is to be done, therefore draws a distinction between primary rules and the secondary rules.
According to him, laws are the rules which forbid individuals to perform various kinds of actions or impose various restrictions or obligations on the individuals. The Primary rules are those rules which impose an absolute obligation on an individual or abstain him from doing particular action; it is instrumental for the generation of duties and obligations for an individual. According to HLA Hart, the existence of primary rules in every primitive society is like a benediction for the society. These primary rules govern the behavioural strand of an individual in society as well as the conduct of an individual. They are obligatory in nature. For example, the rules of criminal law exist for the punishment of crimes such as theft, robbery and murder. The rule of torts forbids defamation. Similarly, the rule of environmental law condemns the pollution of water bodies and the environment.
However, with the evolution in the society and the wholesome development taking place.
The primary rules were proving out to be insufficient for catering to the needs of that dynamic society. Hence this led to the evolution of secondary rules, and this is where the secondary rules came into the picture.
Secondary rules are the foundational rules of every just society. The secondary rules are “power conferring” in nature. Hence in order to curb the insufficiency, which was witnessed in the primary rules, the secondary rules were incorporated, and these secondary rules were broadly categorised into three categories. The pre-legal rules, the primary rules are cured by the set of three rules, namely "rules of recognition", "rules of change" and "rules of adjudication".
Thus, HLA Hart proclaims that according to the rule of recognition, the recognition of rules is not contingent on the command of the sovereign. However, according to the rule of recognition, it should be recognised by the Legislature or the Judiciary. However, the Constitution is placed at the apex position in the hierarchy of rules of recognition. Judicial Precedents and Legislative enactments are the other aspects which exist in the hierarchy of rules of recognition.
The rule of change confers the authority on the Judiciary by virtue of “amendments” to bring about change in the laws corresponding with the dynamic nature of the society.
The rule of adjudication confers the power to the judiciary. The judges are vested with the power to adjudicate the matters of dispute. These rule of adjudication also within its ambit contains the significant definitions of “court, jurisdiction, judge, jurisdiction and
The pre-legal society, which consists only of primary rules, was subjected to 3 major drawbacks which were capable of being rectified only with the aid of fusion of primary rules with the secondary rules. Such drawbacks were:
● Uncertainty: regarding the meaning and scope of the primary rules, hence the secondary rule of recognition helps in removal of this hindrance.
● Static: primary rules were static in nature, and the secondary rule of change removed this hindrance.
● Inefficient: the primary rules are inefficient as there is lack of arbitration which can be cured by the aid of the second rule of adjudication.
Examples of Primary Rules:
● Criminal prohibitions.
● Rules of Tort.
● The right to freedom of speech of an individual.
● The environmental law rule which forbids the discharge of toxic substances in water bodies.
Examples of Secondary Rules:
● Rules of Contract law rules enabling the formation of a contract by the parties.
● The rules which allow the testators for creation of a will.
● The statute for the Supreme Court which authorities it to promulgate rules of procedure as well as practice for the federal courts.
Hart emphasises the fact that primary rules and the secondary rules both must coexist and go hand in hand. One without the other is incomplete and void. The union of both these rules leads to the establishment of a sound legal framework which strengthens the foundation of law and proves out to be an aid in understanding the various sources of law. The primary rules are duty imposing, and secondary rules are power imposing, and both are complementary to each other either of the two cannot operate in complete isolation. Secondary rules provide validity to the primary rules and help in the creation of the primary rules and thus acts as a significant aspect for the existence of primary rules. Hence, in a nutshell, the identification of the primary rules with the assistance and support of the secondary rules marks the potentiality of a legal system.