Prof. H.L.A. Hart's Concept of Law || Jurisprudence ||
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Criticism by professor Dwarkin
Introduction:-
H.L.A. Hart went on to modify
the theory of Austin and Kelsen. He defined the legal system as such in his
book “The Concept of Law”.
“Legal system is a system of rules which
are social in nature because firstly they regulate the conduct of a member of
society and secondly, they drive from human social practices”.
The Second reason in his definition
gives an idea that in a legal system not only legal rules but also non-legal
rules also exist, e.g. morality, customary practices, ethics, and values,
etc. “Where there is a law, there human conduct is made in some non-optional or
obligatory.” Thus the idea of obligation is at the core of the rule.
Austin rejected the content of
morality but for Heart rules are derived from the social practices. Prof. Hart
maintains the difference between source and relationship between law and
morality. He directly accepted the relationship between law and morality, which
Kelson tries to keep the Purity of law: Prof. Hart accepted the content of some
other elements in law.
Who was H.L.A. Hart?:-
H.L.A. Hart was a British philosopher who was a professor of jurisprudence
at the University of Oxford. His most important writings included Causation in
the Law (1959, with A.M. Houore), The Concept of Law (1961), Law, Liberty and
Morality (1963), Of Laws in General (1970), and Essays on Bentham (1982). The
concept of law is an analysis of the relation between law, coercion, and
morality, and it is an attempt to clarify the question of whether all laws may
be properly conceptualized as coercive orders or as moral commands.
Nature of legal system:-
In The Concept of Law, Prof, H.L.A. Hart
cautiously analyses the concept of a social rule. He distinguishes
rule-governed behaviour from habitual behaviour, and distinguishes legal rules
from standards and from orders backed by threats. He also illuminatingly
compares legal rules and moral rules. An essential element of social rules can
be brought out by comparing behaviour according to rules with habitual
behaviour. To the “external” observer, these types of behaviour are
indistinguishable, for to him each appears to be regular and uniform.
Kinds of rules:-
According
to Heart, Rules of Obligation are distinguishable from other rules in that they
are supported by great social pressure because they are felt to be necessary to
maintain society. Our conscience also imposes an obligation.
Having said this he talked about two
kinds of rules;
1. Primary rules and
2. Secondary rules
Primary rules:-
Primary Rules
are those rules which impose 'duty' on a member of society like criminal laws,
tort, etc.
Primary rules are one which tells
people to do things, or not to do things. Primary rules are ‘duty imposing’
rules. They impose certain specific duties on the citizens of the state to act
in a certain manner, or they may be subject to certain legal sanctions. Hart
characterizes primary rules as “basic” rules. They tell the citizen what one
can and cannot do under the law. They lay down duties. These rules are to do
with physical matters.
Secondary rules:-
Secondary
rules are one which let people, by doing certain things, introduce new rules of
the first kind, or alter them. They give people (private individuals or public
bodies) power to introduce or vary the first kind of rule. Secondary rules are
not duty-imposing rules. They are what Hart calls power-conferring rules.
Secondary rules are those rules which
confirm ‘powers’ like Contract, Marriage, Will, Delegated Legislation - power
to make law.
In the Indian Constitution, Schedule VII gives a list namely State, Centre , and Concurrent List, which conferred power to respective organs to make laws.
There is a link between these primary and secondary rules. There is a specific
relationship between these rules which rather systematically comprises a legal system and legal order.
Secondary rules have been divided
into three more types, these are as follows;
1. Rule of Adjudication
2. Rule of Change
3. Rule of Recognition
Rule of Adjudication:-
It mainly represents those rules, which confer a direct power to
adjudicate the matter in dispute, e.g. Article 32, which empower Supreme Court
to issue prerogative writ: Article 131, 132, 134, 133 that empower Supreme
Court the original and Appellate jurisdiction. Article 323A and 323 B empowers
tribunals to adjudicate matters in dispute. All those articles in the Constitution
are power conferring. They enable a court to decide a particular dispute.
Rule of change:-
Law-making power is to be accompanied
by modification when a competent legislative body derived its power to make law should have the power to change the law. This power is necessary to affect any
kind of notification, e.g. Article 368 gives power to Parliament to amend the Constitution
and procedure thereof. Thus it gives the power to amend the Constitution. This
power includes the power to repeal, remove difficulties. It is equally
applicable to delegated legislation.
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Rules of recognition:-
This
principle is the most crucial and vital principle of secondary rules. It is
that rule which recognize other rules. The rule of recognition is the criterion of
existence and validity of the rule of legal system.
Hart believes that the rule of recognition is the
most important. The rule of recognition tells us how to identify a law. In the modern system with multiple sources of law such as a written constitution,
legislative enactments, and judicial precedents, the rules of recognition can
be quite complex and require a hierarchy where some types of rules overrule others
Hart holds this out for the remedy for uncertainty.
Kelson also talked about
recognition, i.e. validity and existence of norms are recognized by the basic
form. Here we can see the similarity between the Heart and Kelson on the point
or rule of recognition and Grundnorm. However, Kelsen basic norm is Sui Generis
that have to fulfill the test of minimum effectiveness but in Heart’s Rule of
recognition to a legal system, to effectively empower, it has to give two
minimum tests or to fulfill two conditions. On the base of which a legal system
could effectively be enforced.
Criticism by professor Dwarkin
Prof.
Hart called a legal system a system of Rules. Whether a legal system is a
system of rules only? Prof. Ronald Dwarkin criticized Prof. Heart on this
point. Dwarkin pointed out that legal system does not comprise only rules but
it consists of principles also. So to call the legal system of rules is not proper.
Sometimes those principles are more important than those rules, e.g. Principle
of Natural Justice, which is elaborated in Maneka Gandhi vs. Union of India.
The judiciary positively incorporates the Principle of Natural Justice. So what
Dwarkin says is also an important one. If rules and principles come into conflict
then principle gets primacy with overriding effect overrules.
Justice Coke in Bohman’s Case (1610), contended that "if it is
found that the law made by Parliament is contrary to certain moral principle
then such law could be null and void".
The heart also failed to provide a true character of law, but this contribution noteworthy as a bridge-builder of
Natural Law to Positivism through Semi sociological School of law. Prof. Heart
was active in promoting democratic socialism and other political causes for the
left to then prevailing political center and advocated privacy rights for
homosexual long before it was common to do so.
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