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

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The next theorist that we’re going to talk about is another legal positivist– more modern legal positivist– named H. L. A. Hart. And he was active in Oxford in the mid-20th century, and he probably reinvigorated the science of jurisprudence– the theory of jurisprudence, the study of it– with his book, The Concept of Law, which came out in 1961. And it became, really, the seminal work that a lot of people need to react to when they start talking about jurisprudence these days. He was a legal positivist, just like Austin, because he believed that law is just a social fact. It’s just a group of social facts– just a question about, what happened in history? What did people do?
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Did parliament pass that law? Did the sovereign say that? Did the king or queen hand down that rule? Those are the laws. Did the judges– what did the judges say the law meant? Those are the laws, and it’s not coming out of reason or morality or God, or anything like that. So that makes him– it’s still the case that he’s a legal positivist. And what the law is is not necessarily what the law ought to be. Or, to use Austin’s term, the existence of law is one thing– its merit or demerit is another. So he’s still a legal positivist in the same sense as Austin. But he disagreed with Austin, as we’ve seen, so he had a separate idea.
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His idea was that the law is the union of primary and secondary rules. Now, what does that mean? It means that what– one of the things, as we saw, that Austin was missing was he thought all laws were just these orders– do that, do this, don’t do this– that kind of thing, right? That’s missing the part of the law where there are kind of, you know, rules about how to do things, such as how to write a will. If it says in the law that you need to have two witnesses in order to have a valid will, well, that’s not ordering you to write a will. It’s only if you want to write a will.
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Then, you have to have two witnesses, right? So he understood that there were two kinds of rules that are in the law. Primary rules are the kinds of rules that you usually see that you think of with Austin– like, do this and don’t do that. But, then, there are these secondary rules. Secondary rules are just rules about the primary rules, but, usually, they are power conferring, whereas the primary rules are usually duty imposing. So, in other words, the primary rule says, do this or don’t do that. That’s giving you a duty, or it’s trying to give you a duty to do that.
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Whereas, the secondary rules, what they’re doing, is they’re rules about how to change the primary rules– who has the power to make decisions about the primary rules– all of those kinds of things, and including things like how to make a will, right? That would be a secondary rule because making a will would be giving other people new primary rules. So, for example, the executor of the will now has a responsibility to dispose of your property, after you pass away, in the way that you identified in the will. So that’s why it’s called a secondary rule because it’s a rule that is about the primary 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.

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Jurisprudence: Introduction to the Philosophy of Law

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