Lecture Three Reading Ronald Dworkin's "Law's Ambitions for Itself" (1985) and H.L.A. Hart's "The Concept of Law" (1961). Notes taken from readings and summarized to what was directly related to lecture material.
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Reading Lecture Three
In Harts opinion the elements of law consist in primary and secondary rules
Is a society without a legislature possible? The only means of social control in such cases would be the general
attitude of the group towards its own standard modes of behavior. We (our kinds of societies) have simply made
these rules obligatory.
These societies are called ones of "custom" but this implies that the rules are old and supported with less social
pressure. If a society like this is to happen, there are certain conditions that must be clearly satisfied:
(1) Restriction on violence, theft, deception (in order to coexist). These sorts of “rules” are found in all
primitive societies (they are basically, in our society, rules of obligation to positive duties)
(2) Those that reject the rules must be no more than a minority. If they wish to endure in other societies (such
as ours), fear makes them conform. But in these cases since there is no fear, peer pressure should make
them conform (hence, if there are more people rejecting the rules, there will be no peer preassure).
This kind of community is only possible with a close tight-knit people, who share same ideals and have a safe
environment. It will be defective if all other situations/cases. In Hart‟s view there are three “issues” with societies
that only have these sorts of primary rules:
(1) Social standards: the customs do not create a legal system but a set of standards. If doubt arises in
regards to what the rules are, there will be no authoritative text or person to refer to. For acknowledging
authority in the first place requires rules of a different type - that is, obligatory. This is the problem of the
(2) The static character of the rules: the only kind of change possible will be through slow growth. There
could be no deliberate adaptation of rules to changing circumstances because this act presupposes a
type of rule that differs from theirs. In extreme cases; the rules are static in such a drastic sense that no
one would the ability to change rules (either by deliberate choice or by a change to the general rules).
People would have fixed duties/obligations. Some may benefit from the performance of these duties but
would have no way to release the people or role onto someone else (since transfer and release imply
change to rules and there is no deliberate way to do that).
(3) Inefficiency of diffuse of social pressure by which rules are maintained. If a question arises about a
violation of law, there is nothing authoritative to give an answer. Also, how would punishment for violation
In order to fix these 3 we must add onto the primary rules with secondary rules. They have important
features in common but are on a different level than primary rules. Since they are all about and
concerned with the primary rules. Basically, secondary rules can tell us how primary rules can vary, when
they are violated and the like.
The Remedies/Secondary Rules:
1) To remedy the uncertainty we create the Rule of Recognition.
This is about recognizing authority to the rules as in written tablets, monuments and acknowledgement of
the proper way to disposing doubt about the rules. It is the conclusive identification of the primary rules of
obligation. Through this (though very basically) the rules become unified, like a legal system, and come to
have legal validity. Even though developed legal systems have more complex rules of recognition such as
supreme courts, hierarchies of authority and the like.
2) To remedy the static character of rules we create the Rules of Change.
These give us the ability to change and have new primary rules as well as get rid of old ones. This exists
alongside the rule of recognition. It confers power, defines and makes rigid procedures, allows for the
making contracts, wills, and transferring property.
3) To remedy the inefficiency we create rules of Rules of Adjudication.
Gives individuals the ability and power to make authoritative decisions about whether or not rule has been
broken. It defines the people who are to adjudicate and the procedure they are to do it with. This does not
impose duties but give judicial rights. It defines legal concepts such as courts, judges, trials, judicial
decisions, gives limits to powers of the judge, etc. Rules of adjudication rely on the rule of recognition.
Classification: The rule, which, in the last resort is used to identify the law, escapes the conventional categories
used for describing a legal system (though these are usually exhaustive). Therefore people consider laws to be
made up of strict laws (statutes, orders in council, rules embodied in precedent) and conventions (mere usages,
understandings, customs do not impose legal duty). But then there are the laws that don't fit into either. They are
not conventions (courts use it in law identification) nor are they a rule of the same level as a "law". Its existence
consists in actual practice.
How can we show that provisions of a constitution which are surely law are really law? Some say the basis
of the law sits on "pre-law", "not law", or "political fact". This is too crude a description.
(1) If we call it a law, it means that said law is thought of or a part of a defining feature of the legal system
(2) Yet calling it a fact is to make an external statement of an actual fact concerning the manner in which
legal systems rules are identified.
We cannon do justice to both by choosing either or and must remember that a rule of recognition can be seen
from 2 points of view.
(1) As the external statement of fact that rules exists in practice of actual legal system
(2) As the internal statements of validity made by those who use it in identifying law
In regards to the first, if we are making this sort of claim we are referring in compressed, portmanteau form to
heterogeneous social facts (that are usually concomitant)
Through the terminology of legal theory we have obscured the facts. Especially the fact that a legal system may at
one stage be unborn, at another independent of its mother, at another decaying, and then dying.
Basically, the fact is that legal systems are not always fully existent; therefore to make the first claim is to overlook
this fact. The Austintanian tradition is an example of this.
“His general habit of obedience distorts the facts of the minimum conditions a society must satisfy to have
a legal system”
In harts opinion the elements of law consist in primary and secondary rules. The only means of social control in such cases would be the general attitude of the group towards its own standard modes of behavior. We (our kinds of societies) have simply made these rules obligatory. These societies are called ones of custom but this implies that the rules are old and supported with less social pressure. If a society like this is to happen, there are certain conditions that must be clearly satisfied: (1) restriction on violence, theft, deception (in order to coexist). These sorts of rules are found in all primitive societies (they are basically, in our society, rules of obligation to positive duties) (2) those that reject the rules must be no more than a minority. If they wish to endure in other societies (such as ours), fear makes them conform.