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PSYC 3390

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Paper 1: An Analysis of Hart’s Theory of Primary and Secondary Rules In his essay, Laws as a Union of Primary and Secondary Rules, Hart criticizes Austin’s theory of laws as commands and argues for a new framework which describes laws as rules. Hart, like Austin, is a positivist and wants to separate the descriptive question of what law is from the prescriptive question of what law should be. But, he does believe that there is a normative aspect to the law, which is reflected in the obligation we feel to follow it. In his analysis Hart makes a distinction between two types of rules (primary and secondary). The separation of rules into these two different categories allows him to establish a method to determine the validity of a law, which is what determines whether it creates an obligation among citizens in a society or not. For the most part, Hart is able to create a very neat and consistent model to describe the legal system, but one inconsistency that I saw, and which I will address, is with the way that Hart incorporates judicial decisions into his system of rules. First of all, in Hart’s analysis, laws are described as rules in order to be distinguished from Austin’s theory of laws as commands. A brief observation of existing laws will present us a wide range of laws that do not neatly present themselves in command form. For example, power-conferring laws, which describe or direct agreements between people such as contracts or marriages, appear to be granting people rights or describing the way public officials should react to certain circumstances rather than commanding people to behave in a certain way. Furthermore, the command theory leaves out an explanation for how, in modern representative systems, the rule-makers who issue the commands find themselves bound by them as well (Hart, 68-69). For these reasons, Hart believes that a more appropriate metaphor for thinking about laws is that of rules in a sporting competition. Rules can not only direct the players to perform or refrain from performing certain actions, but they also give directions to the umpire or score keeper. Furthermore, players feel themselves bound by the rules. The rules themselves provide a reason to act, not just the fear of punishment as in the command theory. Hart calls this point of view, where the existence of the rule provides an obligation for action, the internal perspective to the law. (Hart, 73) Hart divides rules into two categories, primary rules and secondary rules. According to Hart’s definitions, primary rules either forbid or require certain actions and can generate duties or obligations. For a citizen with an internal perspective to the law, the existence of a primary rule will create an obligation for him or her to behave a certain way (Hart, 74). When we think of something being against the law, or required by the law, we are generally in the realm of primary rules. A primary rule can be the law against walking out of the Apple Store with an IPod without paying or the law requiring you to stop at a red light. In the “rules of the game” metaphor, an example of a primary rule would be that in football, it is illegal to restrain a player who is not in possession of the ball. Secondary rules on the other hand, set up the procedures through which primary rules can be introduced, modified, or enforced. Secondary rules can be thought of as rules about the rules (Hart, 76). Continuing with our football metaphor, an example of a secondary rule would be that a coach is 1 permitted to challenge a call by the referee, but must accept the final decision of the ref following the viewing of the instant replay. When analyzing the necessity for secondary rules, Hart imagines a simple society, with only primary rules, but concludes that such a society would face a number of challenges: because there would be no systematic method of rule creation, there would be uncertainty about what the rules actually are; the system would be very static, since any changes in the rules would have to occur organically; finally, without a defined adjudication method, inefficiencies would arise from disputes over whether a rule was actually broken (Hart, 75). These three problems can be remedied with the introduction of three types of secondary rules, in order: rules of recognition, rules of change, and rules of adjudication (Hart, 76-77). Of these three secondary rules, Hart believes that rule of recognition is the most important. The rule of recognition tells us how to identify a law. In modern systems with multiple sources of law such as a written constitution, legislative enactments, and judicial precedents, rules of recognition can be quite complex and require a hierarchy where some types rules overrule others (Hart, 76). But, by far the most important function of the rule of recognition is that it allows us to determine the validity of a rule. Validity is what allows us to determine which rules should be considered laws, and therefore, which rules should create obligations for citizens with an internal perspective to the law. According to Hart, validity is not determined by whether a rule is obeyed, its morality, or its efficiency, but by whether it fits the criteria set forth by the rule of recognition (Hart, 80). In more complex legal systems we may have to trace the origin of a rule back a few steps to the “supreme rule” of that system (Hart, 81-82). In the context of Hart’s definition of validity (whether the law is derived from a source and in a manner approved by other rules) it simply does not make sense to ask about the validity of the rule of recognition in its supreme form. Once we have reached the rule of recognition, there is no higher level of rules to provide us with the criteria with which to judge its validity. Other writers have made the claim that the rule of recognition can simply be “assumed to be valid”. Hart, however, believes that this description is inaccurate and prefers the explanation that the rule of recognition is “presumed to exist”. The word “validity” can only be used to answer questions about the status of a rule within a certain system of rules. Since the rule of recognition is the standard which we use in order to judge the validity of other rules, it cannot itself have a validity test. Hart states that asking about the validity of the rule of recognition can be equated to asking whether the standard meter bar in Paris is in fact a meter. In the same way that the Parisian standard bar identifies the accuracy of instruments used to measure a meter, the rule of recognition identifies the validity of a rule. You can use the Meter Bar to check the accuracy of other instruments, but the bar itsel
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