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

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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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