Law is a system of primary and secondary rules;

a critical analysis

SUBMITTED BY
NOEL PANNA

ROLL. NO. 84
SEMESTER.V

SUBMITTED TO
MR. MANWENDRA KUMAR TIWARI
FACULTY-IN-CHARGE:
JURISPRUDENCE-I

SUBMITTED ON
7TH OCTOBER, 2013.

HIDAYATULLAH NATIONAL LAW UNIVERSITY,

RAIPUR, ( C.G.)

ACKNOWLEDGEMENT

I thank my parents, my friends and seniors in the collection of subject matter. I am also
extremely grateful to the university for providing me with adequate facilities essential for the
completion of this project work. Last but definitely not in the least I extend my thanks and
gratitude to Mr. Manwendra Kumar Tiwari, who has been the driving force behind this project.

Hoping that, this project will make the good reading.

Yours Truly
Noel Panna

TABLE OF CONTENT
1. ACKNOWLEDGEMENT.2

2. OBJECTIVE...4

3. METHODOLOGY....5

4. INTRODUCTION.....6

5. THE EXISTENCE OF A LEGAL SYSTEM.6

6. THE DISTINCTION BETWEEN PRIMARY AND SECONDARY RULES.8
7. AN ANALYSIS OF PRIMARY AND SECONDARY RULES.10

8. CONCLUSION15

9. BIBLIOGRAPHY.16

OBJECTIVE
The main objective of this project is to get elaborate knowledge about the primary and secondary
rules through the analysis of Hart and other theorists in order to establish the clarity and essence of
the subject to explain a legal system.

RESEARCH METHODOLOGY
This project is based upon descriptive method of analysis. This project has been done after a
thorough research based upon intrinsic and extrinsic aspects of the project.
Sources of Data:
The following secondary sources of data have been used in the project1

Articles.

Books

Journals

Websites

Method of Writing:
The method of writing followed in the course of this research project is primarily
analytical and based on secondary source of data.

INTRODUCTION
AN INTRODUCTION TO HART:
H. L. A. Hart (Herbert Lionel Adolphus Hart) (1907-1992) was an influential English-speaking
legal philosopher of the twentieth century. He is the author of The Concept of Law and was
Professor of Jurisprudence at Oxford University. Hart developed a sophisticated theory of legal
positivism within the framework of analytic philosophy. Hart also made major contributions to
political philosophy.1 His most important writings included Causation in the Law (1959, with
A.M. Honor), The Concept of Law (1961), Law, Liberty and Morality (1963), Of Laws in
General (1970), and Essays on Bentham (1982).

THE EXISTENCE OF A LEGAL SYSTEM

Professor Hart elaborates two minimum conditions that are individually necessary and jointly
sufficient for the existence of a legal system:
On the one hand those rules of behaviour which are valid according to the system's ultimate
criteria of validity must be generally obeyed, and, on the other hand, its rules of recognition
specifying the criteria of legal validity and its rules of change and adjudication must be
effectively accepted as common public standards of official behaviour by its officials.2
It is important to underscore that the first condition requires only general obedience, rather than
acceptance, by ordinary citizens.' The second condition specifies that the officials must do more
than merely obey the rules of recognition, change, and adjudication: "They must regard these
[the secondary rules] as common standards of official behaviour and appraise critically their own
and each other's deviations as lapses."" According to the two conditions, it is possible for a legal
1 Dworkin, Ronald. Laws Empire. Cambridge: Harvard University Press, 1986
2 J. AUSTIN, THE PROVINCE OF JURISPRUDENCE DETERMINED (H.L.A. Hart ed.
1954).
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system to exist in which only officials accept and use the system's criteria of legal validity." Such
a society, Hart comments, "might be deplorably sheeplike; the sheep might end in the slaughterhouse. But there is little reason for thinking that it could not exist or for denying it the title of a
legal system."' To explicate the two conditions, it is necessary to elucidate three distinctions basic
to an understanding of Hart's concept of law:
1. The distinction between primary and secondary rules,
2. How a habit of obedience differs from the acceptance of a social rule, and
3. The differences between rules that impose obligations or duties and rules that do not
impose obligations or duties.

PRIMARY AND SECONDARY RULES

According to Hart, a legal system may be best considered a "union" of primary rules of
obligation or duty and secondary rules of recognition, change, and adjudication.3 Hart
characterizes the distinction between primary and secondary rules in the following way:
Rules of the first type impose duties; rules of the second type confer powers, public or private.
Rules of the first type concern actions involving physical movement or changes; rules of the
second type provide for operations which lead not merely to physical movement or change, but
to the creation or variation of duties or obligations.
In Hart's view, a society might live only by primary rules of obligation, but will suffer from three
defects: there will be uncertainty as to what the rules are and their scope; the rules will be static
insofar as there is no means of deliberately eliminating or introducing rules; and, the social
pressure by which rules are maintained will be inefficient because there is no agency for finally
settling disputes over violations of the primary rules." 4 These defects may be remedied by
secondary rules that "specify the ways in which the primary rules may be conclusively
ascertained, introduced, eliminated, varied, and the fact of their violation conclusively
determined." Thus, a secondary rule of recognition will remove the uncertainty of the regime of
3 H.L.A. Hart, The Concept of Law (Oxford: Clarendon Press, 1994),
4 Cohen, Marshall. "Herbert Lionel Adolphus Hart," in The Encyclopedia of Philosophy. New York: Crowell,
Collier and MacMillan (1967) pp. 417-8.

primary rules by providing a rule for conclusive identification of the primary rules of obligation.
Secondary rules of change will remedy the static character of primary rules by empowering an
individual or body to introduce new primary rules of conduct for the group, or for some class
within it, and to eliminate old rules." The remedy for the inefficiency of the social pressure is
secondary rules of adjudication empowering individuals to determine authoritatively whether, on
a particular occasion, a primary rule has been broken. Hart concludes that "the introduction of
the remedy for each defect might, in itself, be considered a step from the pre-legal into the legal
world," and that "certainly all three remedies together are enough to convert the regime of
primary rules into what is indisputably a legal system." The "union" of primary and secondary
rules may be regarded as the "essence" of law, for a modern municipal legal system will combine
both kinds of rules, and the secondary rule of recognition will unite all the rules of the system in
that all genuine laws will satisfy the criteria of validity specified by the rule of recognition.

THE DISTINCTION BETWEEN PRIMARY AND SECONDARY RULES

Hart's basic idea is quite simple. Primary rules are rules of conduct; they tell you what your are
legally obligated to do (or refrain from) and what consequences attach to obedience or
disobedience. Thus, the criminal law rules that prohibit theft, forbid certain conduct and provide
for penalties for violating the prohibition. Technically, the class of secondary rules includes
everything except primary rules. For example, secondary rules are legal rules that allow for the
creation, extinction, and alteration of secondary rules; secondary rules are power-conferring
rules. Thus, contract law empowers individuals and firms to make contracts; contracts
themselves are usually collections of primary rules.5
More precisely, primary rules are rules that govern primary conduct, and secondary rules are
rules that govern primary or secondary rules. Thus, the distinction between primary and
secondary rules is just a bit different than the difference between duty-imposing and power5 Cohen, Marshall. "Herbert Lionel Adolphus Hart," in The Encyclopedia of Philosophy. New York: Crowell,
Collier and MacMillan (1967) pp. 417-8.

conferring rules: duty-imposing rules impose duties, whereas power-conferring rules confer
power. This leaves open the possibility that some rules can regulate other rules, but do so by
imposing duties. For example, a secondary rule might impose a duty to legislate in a certain way
or a prohibition on certain kinds of rule creation.
Some more examples may help:
Examples of Primary Rules

Criminal prohibitions.

Tort rules.

The individual right to freedom of speech.

The provisions of contracts that define the primary obligations of the

parties.

The environmental law rule that forbids discharge of toxic substances in

rivers and streams.

Examples of Secondary Rules

Contract law rules that enable parties to form contracts.

The rules that allow testators to create a will.

The constitutional rules that confer legislative powers on Congress.

AN ANALYSIS OF PRIMARY AND SECONDARY RULES

Laws as a Union of Primary and Secondary Rules, 6 Hart criticizes Austins 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 Harts analysis, laws are described as rules in order to be distinguished from
Austins 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, powerconferring laws,7 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 .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,
6 The Concept of Law by H. L. A. Hart (1961) (Clarendon Press: Oxford University Press), (hereinafter Hart).
7 Critical Notice on The Concept of Law. L. J. Cohen (1962) 71 Mind, 395, (hereinafter Cohen).

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where the existence of the rule provides an obligation for action, the internal perspective to the
law.
Hart divides rules into two categories, primary rules and secondary rules. According to Harts
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. 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.
Continuing with our football metaphor, an example of a secondary rule would be that a coach is
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. 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 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. 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
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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. 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.
In the context of Harts 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. 8 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 itself cannot be accurate or inaccurate because accuracy is only
defined by how well an instrument approximates the standard.
In this context, the rule of recognition cannot be described in terms of validity, but only in terms
of existence. The rule or recognition is presumed to exist if it is actually accepted and employed
in general practice. In this respect, the existence of the rule of recognition is an external
statement of fact. While laws can be valid even if defacto no one abides by them, the rule of
recognition can only exist if courts, legislators, officials, and citizens act in a consistent way that
corresponds with the presumed existence and acceptance of such a rule.
One area where I think that Harts theory falls short is the way he incorporates laws that created
on the basis of judicial decisions into his framework of rules. According to Hart, once a rule is
8 Hart, H.L.A. The Concept of Law. Oxford: Clarendon Press, 1994.

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established according to the rule of recognition, whether by the legislature or by judicial

precedent, it becomes part of the legal pedigree and there is little further uncertainty about its
meaning or validity. This analysis, and even the choice of the word rules implies that the laws
are very explicit and do not contain much room for interpretation. However, in many real life
examples we find that the laws are rather vague or flexible, or that they turn on abstract concepts,
like in contract law, where judges often make decisions based on whether the parties acted in
good faith.
Lets take the discussion further with the contract law example. One of the parties has
intentionally hidden some documents from its contract partner. A judge will consider this
evidence of a lack of good faith and it may cost the first party the case, even if the law never
explicitly listed hiding documents among the activities that are considered illegal. Hart would
defend his theory by saying that in this case the judge went outside the boundaries of the existing
law to create a new law, which never existed before that moment, and which states that it is
illegal to hide documents from your contract partner. But this seems inconsistent with the way
that judges view their own position in the legal system. No judge sees his or her role on the
bench as a maker of new laws, but as an interpreter of the existing laws. In the metaphor that
Hart gives of the rules of a game, the judge would be like a referee. The referee can identify
when a rule was broken, but it shouldnt be within her power to create new rules. A judge writing
a decision in the contract example wouldnt say that there was no rule against concealing
documents, but now that the question has come up, she thinks it would be good to have one. She
would say that the rule against concealing documents was there all along.
If Hart would believe that any judicial decision in which there is uncertainty or a lack of
specificity within the law in question constitutes the creation of new laws by a judge, then that
amounts to an incredibly large quantity of retroactive laws, which is problematic to the
consistency Hart wishes to maintain in his theory of rules. The reason that Hart gave for the
necessity of a rule of recognition was to solve the problem of uncertainty about the rules by
making it easy for people to clearly identify what the laws are. But if new laws can be created
every time a judge makes a difficult decision, it makes identifying the rules just as difficult as if
there were no rule of recognition at all.
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This means that judges are cannot be free and unconstrained to make new law in any way they
wish every time a case comes up where existing laws were undefined or when the factors that
influence a decision are not explicitly part of a distinct set of secondary rules. Intuitively, a judge
who decides that hiding documents from a contract partner is wrong, even if this is not explicitly
stated in the law, has made a fair or just choice (it would almost seem unfair if the decision had
gone the other way), but the types of considerations that would guide the judge in making this
decision do not seem consistent with what would fall under the rule of recognition as described
by Hart. Dworkin makes a similar objection when he discusses the way in which judges make an
appeal to principles when deciding cases. Principles are not hard and fast rules since, standing
alone, they do not constrain behavior in the legal sense. 9 They do however they provide
guidelines for how the law is to be interpreted and applied.

CONCLUSION
9 Dworkin, Ronald. Laws Empire. Cambridge: Harvard University Press, 1986
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Harts analysis of primary and secondary rules provides a very useful framework for
understanding the sources of law and how we can distinguish valid laws from invalid ones
without entering into subjective moral territory. Harts system creates a way to reconcile some of
the inconsistences in Austins theory, while also incorporating some of the more normative
nuances of the law without making any moral claims. Hart observes that people feel an
obligation to follow primary laws, even in cases where the likelihood of being caught and
punished is slim to none. Since Austin defines laws as demands issued by a sovereign under
threat of sanctions, this observation cannot be explained by Austins theory. Hart argues that this
obligation does not come from the moral content of the law, but from its validity, which is why
we need secondary laws to determine the validity of the primary laws. Because people who take
the internal perspective to the law presume the existence of the rule of recognition, they accept to
be bound by laws that are valid according to the criteria set forth in the rule of recognition and in
the secondary laws derived from this rule. I do feel, however, that Harts theory on judicial
decisions fails to address the reality of how judges see their role in the legal system, as
interpreters or arbitrators of the law rather than creators of new laws.

BIBLIOGRAPHY
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Austin, John. The Province of Jurisprudence Determined and The Uses if the Study of
Jurisprudence. London: Weidenfeld and Nicolson, 1954.
Cohen, Marshall. "Herbert Lionel Adolphus Hart," in The Encyclopedia of Philosophy. New
York: Crowell, Collier and MacMillan (1967) pp. 417-8.
Dworkin, Ronald. Laws Empire. Cambridge: Harvard University Press, 1986.
Hart, H.L.A. The Concept of Law. Oxford: Clarendon Press, 1994.
Michael Payne, "The Basis of Law in Hart's The Concept of Low", TheSouthwestern Journalof
Philosophy 9, no. 1 (Spring 1978): 11-17.
Joseph Rar, The Authority of Low: Essays on Law and Morality (Oxford: Clarendon Press,
1979); and Theodore M. Benditt, Law us Rule ond Principle: Problems ofLegol Philosophy
(Stanford, California: Stanford University Press, 1978).

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