H.L.A. Hart’s theory
H.L.A. Hart is generally regarded as the face of British Positivism. He has strongly criticized Austin’s view of law as “command”. He uses the concepts of “power” and “rule” to counter Austin’s analytical legal positivism. Prof. Hart has mainly studied law as a collection of legally binding rules.
Primary & Secondary Rules
Rules, according to Hart, may be categorized into primary rules and secondary rules. Primary rules are those rules which require human beings to do or abstain from doing certain things. Secondary rules are those which are secondary to the primary rules and lay down certain acts which may, upon commission, lead to the creation of new primary rules. Duties can be said to primary rules, whereas, powers can be said to be secondary rules.
Defects in Primary Rules
Hart has identified the following three defects in primary rules:
1. Uncertainty- The first and foremost defect is with regards to the uncertainty of primary rules. If a dispute arises with regards to the scope of a particular primary rule, there exists no set procedure to resolve such a dispute.
2. Static Character- Another defect in primary rules is with regards to its static character. Primary rules may undergo a change only by way of the gradual evolution of society. Thus, the process makes primary rules quite rigid and static.
3. Inefficiency- Disputes with regards to the violation of a primary rule shall always occur and there exists no set mechanism or procedure or any competent authority to deal with such disputes. Thus, the “inefficiency” of primary rules forms its third defect.
Remedies for the Defects
According to Hart, the simplest remedy for the aforesaid defects is to introduce secondary rules for each one of them. The proposed remedies are as follows:
1. “Rule of Recognition”- In order to cure the defect of uncertainty, a secondary rule of recognition may be introduced whereby the primary rules may be codified in the form of an authoritative text.
2. “Rules of Change”- In order to cure the defect of the static character of primary rules, secondary rules of change providing a procedure for amending or changing primary rules may be introduced.
3. “Rules of Adjudication”- Secondary rules of adjudication may be created which would empower certain individuals to authoritatively decide upon disputes related to primary rules and adjudicate upon the same.
“Internal Aspect” of Law
According to Hart, apart from external factors such as sanctions and societal pressure, the law also depends upon some internal factors. A law must be willfully obeyed by the people. They must consciously accept it and abide by it. Law must hold well from the internal point of view of the people. Officials must also internally recognize and consciously accept and abide by the various secondary rules. Such an internal aspect is an essential element to constitute a successful legal system.
Lord Lloyd has stated that Hart’s classification of primary and secondary rules is an extremely helpful tool in analyzing legal concepts. However, he expresses his doubts over the proposition that all legal rules can be classified as primary and secondary rules. He further goes on to express his concern over the uncertainty and immeasurability of Hart’s “internal aspect” of law. Prof. Ronald Dworkin criticizes Hart’s theory on the grounds that he recognizes only rules. He counters it with his concept of “principles”. Eckhoff has contended that Hart has confused the binding part of the law with the other aspects of law.