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A. Hart’s own account of a legal system: law as the union of primary and secondary rules
1. Why a legal system needs secondary rules
2. Three kinds of secondary rules
3. The defining features of a legal system
4. On his view, is law different from the gunman situation writ large?
B. Dworkin: Law’s Ambitions for itself
1. The three mysteries
2. Dworkin’s model of law
3. Dworkin’s interpretive model of judging (as illustrated by Dronenburg case)
Extra Readings: a) The Oxford Handbook of Jurisprudence and Philosophy of Law, b)The
Stanford Encyclopaedia of Philosophy and c) OJLS 2004 “Hart’s Postscript…” by Dworkin.
Last class we looked at the negative side of Harts project. He tried to rehabilitate legal positivism
by discarding what he though was dispensable (command theory) and explaining what he thought was
positive. The command theory of law in Austin’s view gave a positive explanation of how law could be
“law”. Hart wants to reject this rule. We now need some other account of what makes law “law like”.
In Harts opinion, law as the union of primary and secondary rules. Why does a legal system need
secondary rules? But does his version really counter the “gunman situation”?
A. What makes a rule into a rule of law? How can we fill this gap that (taking the command theory
out) we are left with?
•Begins with a thought experiment in order to show why a legal system needs secondary
rules. He asks us to imagine a society with the following features: they only have primary rules (don’t
murder other people, don’t injure other people’s property, these are rules telling others how they should
behave, lay down a series of dos and don’ts). There is no legislature, courts, officials, or other authority.
Nor are there rules about how these rules should be enforced or applied. No authority vested in
interpretations or applications of these rules. Could such a society even exist? What kinds of problems
would a society like this have?
1) There would be no way of deliberately changing the rules in a way that everyone in the society
would have to recognize and accept this change. The static character of rules. It’s not that it could never
evolve in terms of beliefs or moral practices but that there would be no deliberate way of doing this (at a
particular point in time) or ensuring that everyone would recognize the change (and take it into account).
The change would happen slowly and hazardously.
2) Problem of inefficiency. When disputes arise about what rules say there would be no authority
to resolve these sorts of disputes (or exert pressure for conformity to said rules). There will always be
disputes of these sorts, but there would be no authority to resolve them.
3) The problem of uncertainty. Related to number two but comes prior to it. When doubts arise
as to what a particular rule is in a particular case. What things count under certain rules and what does
These problems suggest that we need secondary rules. They are on different level from the primary
rules but they are about the primary rules. They specify how primary rules can be changed, implemented,
ascertained, and who is to do this (and how they are to do this and enforce it). How they come in and out
of existence and how they should be interpreted.
The solve these three issues there are three remedies:
(1)The rule of recognition: one of the most important. Group of rules, or set of rules that lays
down particular features (of a group of rules) of primary rules in order for them to be “laws”. It tells us
what has to be true of primary rules in order for them to be valid laws. May require that laws have to be
properly enacted, laid down by a judge in a fair trial or that they conform to the constitution (including a
charter of rights or the like), etc. In Canada our rule of recognition includes: the law has to conform the
Canadian Charter of Rights and Freedoms. It divides powers between provincial and federal governments.
How does this fix the problem of uncertainty? It sets some standards against which we may measure
what a law is and is not. It tells us the sorts of procedures that have to be followed if something is to count
as a law or not. * The rule of recognition is key because this is what we look at to see what a valid law is
in the legal system. *
(2)The rules of change: Empower us to introduce new primary and secondary rules and repeal old
ones. Gives us the right to change old rules and make new ones. They would include rules for judicial
decisions (when you can and cannot change laws). Rules of legislative enactment for example. They are
designed to empower people in authority.
(3)The rules of adjudication: Allow people to make authoritative announcements in particular
cases in regards to when a particular primary or secondary rule was broken. Addresses problem of
inefficiency. Identify who is to adjudicate and what procedure they are to follow.
To sum up, primary rules are rules about behaviour and confer certain rights. While secondary
rules are about primary rules and tell us how to interpret them, who is to interpret them and give us the
right to change them.
An example of a Canadian secondary rule:
Law: a rule in the marriage act which says that a judge may solemnize marriages under the authority of a
license. It is a secondary rule of change and recognition. Someone might question this law. We then look
to a further secondary rule that says; whatever a provincial government legislates on subject matters that
are assignment to them under the constitution is law provided that they follow the correct procedures for
legislative enactment and provided that the rule conforms to the constitution (including the charter of
Secondary rules are not really “classifications”. We should think about why secondary rules help
us understand what law is? We should understand the function secondary rules have as a whole in Hart’s
project and what distinctive force the law has over us?