Table of Contents
Prof. H.L.A. Hart’s Concept of Law || Jurisprudence ||
“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”.
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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.
Concept of law by Prof. Hart
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
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 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.