Hart on Law: The Union of Primary and Secondary Rules

The Quote

"The union of primary and secondary rules is at the center of a legal system."

— H. L. A. Hart, The Concept of Law (1961)

Historical Context

H. L. A. Hart published The Concept of Law in 1961, at a time when the philosophy of law was dominated by the command theory of John Austin, who had defined law as the command of a sovereign backed by the threat of sanctions. Hart's book was a systematic critique of the command theory and the development of an alternative framework for understanding the nature of law. The book emerged from the tradition of analytic philosophy, and Hart brought to the philosophy of law the methods of linguistic analysis and conceptual clarification that characterized the Oxford philosophy of the mid-twentieth century.

The passage quoted here is the central thesis of the book. Hart argues that the key to understanding the nature of law is the distinction between two types of rules. Primary rules are rules that impose duties and obligations — rules that tell people what they must or must not do. Secondary rules are rules that confer powers — powers to create, modify, extinguish, and adjudicate the primary rules. The union of these two types of rules, Hart argues, is the "essence" of law — the feature that distinguishes a legal system from a mere collection of social norms.

The intellectual context of the 1960s was shaped by the debate between legal positivism and natural law theory, which had been reinvigorated by the Nuremberg trials and the question of whether the Nazi legal system could be considered law. Hart's argument was a defense of legal positivism — the separation of law and morality — but it was a more sophisticated positivism than Austin's. Hart acknowledged that law and morality are connected in important ways, but he insisted that the concept of law must be analyzed independently of moral evaluation.

Philosophical Interpretation

Hart's distinction between primary and secondary rules is a conceptual analysis of the structure of a legal system. Primary rules are the rules that govern the conduct of citizens: they prohibit murder, require the payment of taxes, regulate contracts, and so on. In a simple society, a set of primary rules might be sufficient to maintain social order, but in a complex society, the limitations of a regime of primary rules alone become apparent. Hart identifies three defects: uncertainty (the primary rules may be unclear in their scope and application), staticity (there is no way to change the rules in response to changing circumstances), and inefficiency (there is no way to resolve disputes about the rules or to enforce them).

Secondary rules are the remedy for these defects. The rule of recognition, which specifies the criteria that a rule must satisfy to be considered a valid legal rule, remedies the defect of uncertainty. Rules of change, which confer the power to create, modify, and extinguish primary rules, remedy the defect of staticity. Rules of adjudication, which confer the power to resolve disputes about the application of the primary rules, remedy the defect of inefficiency. The union of primary and secondary rules creates a system of law that is capable of governing a complex society in a way that a mere collection of primary rules cannot.

The authority of law, for Hart, is grounded in the acceptance of the rule of recognition by the officials of the legal system. The rule of recognition is not itself a legal rule but a social rule — a rule that exists because the officials of the system accept it as the standard for identifying the law. The ultimate foundation of a legal system, in Hart's analysis, is not a sovereign command or a moral principle but a social fact: the fact that the judges, legislators, and other officials of the system accept a particular set of criteria as the criteria of legal validity. This is the "internal point of view" — the perspective of the officials who accept the rules of the system as standards of conduct.

Related Concepts

Hart's theory of law is one of the most influential contributions to the philosophy of law in the twentieth century. The distinction between primary and secondary rules, and the concept of the rule of recognition, have become standard tools in the analysis of legal systems. The debate between Hart and Ronald Dworkin, who criticized Hart's positivism and argued that legal principles cannot be identified by a rule of recognition, shaped the subsequent development of the philosophy of law.

The question of the relationship between law and justice is central to the debate between legal positivism and natural law theory. Hart's separation thesis — the claim that the existence and content of law can be identified without reference to moral considerations — has been criticized by natural law theorists who argue that law is conceptually connected to morality. But Hart's positivism is a "soft" positivism, which allows that the rule of recognition may incorporate moral criteria into the test for legal validity, and that the content of law may be shaped by moral considerations without being determined by them.

Sources

1. Stanford Encyclopedia of Philosophy, "H. L. A. Hart." Covers Hart's contributions to the philosophy of law, the concept of law, and the debate with legal positivism.
2. H. L. A. Hart, The Concept of Law (Oxford: Oxford University Press, 1961; 2nd ed. 1994). The primary source of the quoted passage.
3. Internet Encyclopedia of Philosophy, "H. L. A. Hart: Legal Positivism." An accessible overview of Hart's theory of law and its significance.