HART’S ACCOUNT OF LAW
According to Hart, the law should be understood as a mix of two kinds of rules of obligation: these are primary rules and secondary rules. Primary rules are termed as “custom rules” and only require individuals to adhere to certain conditions, for instance, restrictions on the free use of violence. On the other hand, secondary rules are rules that are essential to the establishment of a legal system.
Hart further gives three general types of rules that fall under secondary rules. They constitute rules of regulation, rules of change, and adjudication rules, with the foremost rule being the rule of recognition. The rule of recognition specifies possession features, of which suggested rule is taken as a conclusive affirmative indication that it is a group’s rule to be supported by social pressure it exerts(p 42).
“ The sense in which the rule of recognition is the ultimate rule of a system is better understood if we follow a very familiar chain of legal reasoning. If the question is raised whether some suggested rule of legal valid, we must, to answer the question, use a written of validity provided by some other rule.”( p 107). However, we might have a set of rules we call a construction. For instance, British construction has rules escalating from the inferior power, which is the county council, to the highest rule, which is the Queen.
Rules of recognition provide an authoritative mark as it introduces the idea of a legal system, for the rules are now not just discrete unconnected set but are simply, unified ( p42). a. Although a subordinate rule of recognition exists only as complex. Still, court officials’ normally concordant practice in identifying the law by reference to certain criteria its existence is a matter of fact (p 48).
Hart’s account of law is significant because the social pressure behind the rules in the primary factor determines whether they are thought of as giving rise to the obligation (p 87). Besides, rules supported by this serious social pressure are necessary for maintaining a social life. He can explain why in a developed legal system, rules of recognition are enacted by a specific body or their relation to decisions are made by the judiciary. According to Hart, the rules of change are whereby the simplest rules are the ones that enable individuals to introduce rules for the conduct of life (p 97).
Rule of recognition has three major functions that include: unifying laws in applicable legal systems, confirming validity in legal systems, and to establish a test for valid laws in applicable legal systems.
Hart’s concept of the law states that there is no such thing as separation of law and morality; rather, laws made by man are good in the eyes of morality and do not exist by a coincidence of nature. Men apply morality in their daily lives. Even if the law fails to be what it ought to be, we could not deny its existence. (71).
Work Cited
HLA Hart Law As Union of Primary and Secondary Rules- 1966.
J Dickson – Oxford Journal of Legal Studies, 2007 – academic.oup.com