Hart’s response to command theory: law as the union of primary and secondary rules

We saw in the last activity that one critique of command theory is that it can’t explain how the law presents itself as a reason for following it. H.L.A. Hart responded to this in his 1961 book The Concept of Law.

In addition to not being able to explain how law presents itself as a reason, by understanding law as a command, Austin’s theory leaves out a huge amount of law that cannot easily be understood as commands. These are secondary rules.

• Primary rules  – these are duty imposing. These give you a duty to do or not to do something.
• Secondary rules – rules about the primary rules. Usually these are power conferring. These are rules about how to change the primary rules: who has the power to make the primary rules and how are they made. This isn’t just about government and the courts, but includes things like how to make a will. By making a will, you are creating new primary rules for other people.

Reference

Hart, H.L.A. (1961) The Concept of Law. Oxford: Oxford University Press.