Hart's conception of law
1.0 INTRODUCTION
One important refrain that underlines Hart’s legal theory theory is his contention that rule rather than command theory, is the key to the science of jurisprudence. The command theory identified only one form of rule, namely the primary rules of obligation, which are insufficient to engineer the transition from a pre-legal society to a legal society.
A municipal legal society demands a more sophiscated legal system that mere rules of obligation. Based on this, Hart tries to build a legal system that is based on the combined system of primary and secondary rules. In his opinion, what legitimize power are the rules of recognition, change and adjudication. These rectify the deficiencies of the primary rules of obligation. Thus, the place of rules and the role they play in fostering a sound legal system cannot be over-emphasised. 2.0 HART’S CONCEPTION OF LAW In the first place, law is aan affair of rules and so we can say what law is, by saying what rules are. In this regard Njoku writes that, ‘Hart asserts that investigation about law via rules is, the most portable way of three starting points’ but then Hart isolates rules from social habits to which they could be mistaken. For although both social habits and rules regulate behaviour, Hart states in his essay the ascription of rights and responsibilities, that ‘legal concepts are not reducible to extra-legal concept. That they need contextual understanding’. Rules are better understood from the point of view from which they emerge, apart from the external aspect which rules share with social habits there is also the internal aspect of rules. This aspect may be illustrated with the rules of a game, the rules of the point of view of those who are playing game, as against those who are watching the game. Thus, a closer look discloses that the basic element of rules is the fact they are normative, general, standard of behaviour. So when Hart talks about the internal aspect of which characterizes a rule as against the external aspect which it shares with social habit, the normative of the rule comes to the fore. When we consider his argument on legislation, the continuity of the authority to make laws possessed by a succession of different legislators, and the persistence of law long after their maker and those who rendered him habitual obedience have perished, the idea of the generality of the rule comes to the fore. 3.0 PRIMARY AND SECONDARY RULES: THE MAKING OF A LEGAL SYSTEM Hart characterised law as a union of two types of rule, namely, primary rules of obligation and secondary rules of recognition. He opined that these types of rule are indispensable for the making of an effective municipal legal system. He noted that the command theory identified only the primary rules of obligation (rules that require human beings to do or abstain from certain actions whether they wish to or not), which is defective for obvious reasons. Hart remarked that under such a regime of rules, human society exists in a primitive or pre-legal society, what we will describe as a legal state of nature. According to Njoku ‘the operation of rules in this type of society is laden with difficulty.’ As H.L.A Hart himself noted, it iss plain that only a small community closely knit by ties of kinship, common sentiment and belief and placed in a stable envirionment could live by such a regime of unofficial rules. In other conditions such a simple form of social control must prove defective. The second defect is the static character of primary rules, that is, its inflexibility. In this regard, Hart remarked that there will be no means, in such a society, of deliberately adapting the rules to changing circumstances; either by eliminating old ones or introducing new ons. For again, the possibility of doing this presupposes the existence of rules of a different type from the primary rules of obligation by which alone the soeity lives. Thus, we see here that these primary rules suffer from the defect of being static or inflexible. Thirdly, the system of primary rules of obligation lacks final and authoritative special agency for punishments for violations of rules, a defect, which Hart identified as “the inefficiency of the diffuse social pressure bby which the rules are maintained.” Hart maintains that “the remedy for each of these main defects in this simplest form of social structure consists in augmenting the primary rules of obligation with the secondary rules which are rules of a different kind” According to Hart, the introduction of a remedy for each of these defects may be considered as a step from the pre-legal into the legal world. And all the three remedies together convert the regime of primary rules into what is indisputably a legal system. These rules Hart refers to as secondary rules and they include the rules of recognition, change and adjudication. The rule of recognition remedies the uncertainty of the regime of primary rules of obligation by specifying some feature or features possession of which by a suggested rule is taken as a conclusive affirmative indication that it is a rule of the group to be supported by the social pressure it exerts. Hart noted that the existence of this rule in different groups might take different forms. In many early societies, it might just take the form of a list or text of the rules documented and to which reference can be constantly made, as authoritative text for code of conduct in such a society. It is not just the reduction to writing that really matters here, what is crucial is the acknowledgement of reference to the writing or inscription as authoritative as the proper way of disposing of doubts as to the existence of the rule. Thus where there is this kind of rule. There is a very simple form of secondary rule for the conclusive identification of the primary rules of obligation. The mode of for the articulation and reference to this rule in more advanced in more advanced societies can be more complex than those in the less advanced ones. There will always be a connection between the rules of recognition and that of change, “for where the former exists the latter will necessarily incorporate a reference to legislation as an identifying feature of rules, though it need not refer to all the details of procedure involved in legislation. 4.0 PERSPECTIVE WITH REGARD TO RULES With regard to the question of perspectives in rules, Hart argues that there are two perspectives; the internal and the external aspects of rules. By the internal point of view is meant the use of unstated rules of recognition by court and others. Those who use the rules this way manifest their acceptance of these rules as guiding rules and with it goes a special vocabulary e.g it is law that… this form of statement hart refers to as statement from internal point of view because it manifests the internal point of view and is naturally used by one who, accepting the rules of recognition and without stating the fact that it is accepted, applies the rule in recognizing some particular rule of the system as valid. In contrast to the above are what hart calls external statements. These are the naturlal language of an external observer of the system who without himself accepting its rules of recognition states the fact that others accept it. This distinction is very important because if the community is only made up of people who look at the law only from the external point of view, a legal community cannot be extablished. 5.0 VALIDITY AND EFFICACY OF RULES Following the above distinction between internal and external points of view is Hart’s distinction between validty and efficacy as essential features of laws produced by legislator, and not of laws produced by scientists. On this Hart opines, “if the use of an accepted rule of recognition in making inter statements is understood and carefully distinguished from an external statement of fact, that the rule is accepted, many obscurities concerning the notion of legal validity will disappear.” This is because the word valid is often times applied to unstated but applied rules of recognition. Thus, we simply say that a rule is valid when it satisfies all the criteria provided by the rule of recognition. Connected with the issue of the validity of a rule, is the case of the efficacy of the rule. By efficacy here is meant that a rule of law which requires certain behaviour is obeyed more often than not. It is plain that there is no necessary connection between the va;idity of any particular rule and its efficacy. Unless the rule of recognition of the system includes among its criteria, as some do, the provision that no rule is to count as a rule of the system if it has long ceased to be efficacious. In explaining of the unconnected nature of validity and efficacy, we still note that, that a law is valid is no guarantee that it will be efficacious and that it is inefficacious is no proof that it is invalid. On this Hart writes, One who makes an internal statement concerning the validity of a particular rule of a system may be said to presuppose the truth of the external statement of the fact that the system is generally efficacious. For the normal use of internal statement is in such a context of general efficacy. It would however be wrong to say that statements of validity mean that the system is generally efficacious. Thus, the combination of both internal (validity) and the external (efficacy) points of view will make for a sound practice of the rule and the existence of a sound legal system. 6.0 THE PLACE OF MORALS IN FOUNDING RULES With regard to the place of morals in founding rules in Hart, it is the candid view of F.O.C Njoku that there exists a relationship between them, but that “the bone of contention between law and morality is how their relationship is to be conceived.” This is the fact because for Hart both law and morals are social phenomena used for the social control of behaviour. Hart in this regard follows the tradition of a necessary separation of law and morality. But he does not deny the minimal content which they both share as normative systems. He also accepts the fact of the role of morality in founding of law in hard or borderline cases, where law runs out in the face of application and interpretation. And as such moments the judge might allow his moral conviction come to bear in his legal judgement. But Hart also tries to warn the this relationship must not be over exaggerated, for the fact that they are both used as instruments of social control suggests “that law is best understood as a branch of morality or justice and that its congruence with the principles of morality or justice rather than its incorporation of order and threats as its essence.” Furthermore, Hart argues that there are different types of relation between law and morals. As such what is important is to distinguish some of the ways different things may be meant by the assertion or denial that law and morals are related. But he clearly emphasizes the basic that law, to some extent, has its roots in morals. Thus Hart opines, “it cannot seriously be disputed that the development of law, at all times and places has in fact been profoundly influenced both by the conventional morality and ideals of a particular social group and also by forms of enlightened moral criticism urged by individuals whose moral horizon has transcended the morality currently accepted.” But for the case that there must be some conformity between law and morals, Hart argues that this must not be the case. In line with the above, Hart goes ahead to emphasis the minimum content which law and morals share. As such the connection here between natural facts and content as well as legal and moral rules is based on a kind of purposive causality, i.e a kind od causality deliberately directed to a purpose or end. And these can be represented in the following areas: Human vulnerability, approximate equality; limited altruism; limited resources; limited understanding and strength of will, at these points morals and laws share a minimum content. But Hart’s conclusion in this regard is that morals have a place in founding of rules, but then rules should not be reduced to morals. 7.0 CONCLUSION On the issue of morality and law Hart advises that we take a wider perspective of the law. Thus he asserts, “A concept of law which allows the invalidity of law to be distinguished from its immorality, enables us to see the complexity and variety of these separate issues, whereas a narrow concept of law which denies legal validity to iniquitous rules may blind us all.”
A municipal legal society demands a more sophiscated legal system that mere rules of obligation. Based on this, Hart tries to build a legal system that is based on the combined system of primary and secondary rules. In his opinion, what legitimize power are the rules of recognition, change and adjudication. These rectify the deficiencies of the primary rules of obligation. Thus, the place of rules and the role they play in fostering a sound legal system cannot be over-emphasised. 2.0 HART’S CONCEPTION OF LAW In the first place, law is aan affair of rules and so we can say what law is, by saying what rules are. In this regard Njoku writes that, ‘Hart asserts that investigation about law via rules is, the most portable way of three starting points’ but then Hart isolates rules from social habits to which they could be mistaken. For although both social habits and rules regulate behaviour, Hart states in his essay the ascription of rights and responsibilities, that ‘legal concepts are not reducible to extra-legal concept. That they need contextual understanding’. Rules are better understood from the point of view from which they emerge, apart from the external aspect which rules share with social habits there is also the internal aspect of rules. This aspect may be illustrated with the rules of a game, the rules of the point of view of those who are playing game, as against those who are watching the game. Thus, a closer look discloses that the basic element of rules is the fact they are normative, general, standard of behaviour. So when Hart talks about the internal aspect of which characterizes a rule as against the external aspect which it shares with social habit, the normative of the rule comes to the fore. When we consider his argument on legislation, the continuity of the authority to make laws possessed by a succession of different legislators, and the persistence of law long after their maker and those who rendered him habitual obedience have perished, the idea of the generality of the rule comes to the fore. 3.0 PRIMARY AND SECONDARY RULES: THE MAKING OF A LEGAL SYSTEM Hart characterised law as a union of two types of rule, namely, primary rules of obligation and secondary rules of recognition. He opined that these types of rule are indispensable for the making of an effective municipal legal system. He noted that the command theory identified only the primary rules of obligation (rules that require human beings to do or abstain from certain actions whether they wish to or not), which is defective for obvious reasons. Hart remarked that under such a regime of rules, human society exists in a primitive or pre-legal society, what we will describe as a legal state of nature. According to Njoku ‘the operation of rules in this type of society is laden with difficulty.’ As H.L.A Hart himself noted, it iss plain that only a small community closely knit by ties of kinship, common sentiment and belief and placed in a stable envirionment could live by such a regime of unofficial rules. In other conditions such a simple form of social control must prove defective. The second defect is the static character of primary rules, that is, its inflexibility. In this regard, Hart remarked that there will be no means, in such a society, of deliberately adapting the rules to changing circumstances; either by eliminating old ones or introducing new ons. For again, the possibility of doing this presupposes the existence of rules of a different type from the primary rules of obligation by which alone the soeity lives. Thus, we see here that these primary rules suffer from the defect of being static or inflexible. Thirdly, the system of primary rules of obligation lacks final and authoritative special agency for punishments for violations of rules, a defect, which Hart identified as “the inefficiency of the diffuse social pressure bby which the rules are maintained.” Hart maintains that “the remedy for each of these main defects in this simplest form of social structure consists in augmenting the primary rules of obligation with the secondary rules which are rules of a different kind” According to Hart, the introduction of a remedy for each of these defects may be considered as a step from the pre-legal into the legal world. And all the three remedies together convert the regime of primary rules into what is indisputably a legal system. These rules Hart refers to as secondary rules and they include the rules of recognition, change and adjudication. The rule of recognition remedies the uncertainty of the regime of primary rules of obligation by specifying some feature or features possession of which by a suggested rule is taken as a conclusive affirmative indication that it is a rule of the group to be supported by the social pressure it exerts. Hart noted that the existence of this rule in different groups might take different forms. In many early societies, it might just take the form of a list or text of the rules documented and to which reference can be constantly made, as authoritative text for code of conduct in such a society. It is not just the reduction to writing that really matters here, what is crucial is the acknowledgement of reference to the writing or inscription as authoritative as the proper way of disposing of doubts as to the existence of the rule. Thus where there is this kind of rule. There is a very simple form of secondary rule for the conclusive identification of the primary rules of obligation. The mode of for the articulation and reference to this rule in more advanced in more advanced societies can be more complex than those in the less advanced ones. There will always be a connection between the rules of recognition and that of change, “for where the former exists the latter will necessarily incorporate a reference to legislation as an identifying feature of rules, though it need not refer to all the details of procedure involved in legislation. 4.0 PERSPECTIVE WITH REGARD TO RULES With regard to the question of perspectives in rules, Hart argues that there are two perspectives; the internal and the external aspects of rules. By the internal point of view is meant the use of unstated rules of recognition by court and others. Those who use the rules this way manifest their acceptance of these rules as guiding rules and with it goes a special vocabulary e.g it is law that… this form of statement hart refers to as statement from internal point of view because it manifests the internal point of view and is naturally used by one who, accepting the rules of recognition and without stating the fact that it is accepted, applies the rule in recognizing some particular rule of the system as valid. In contrast to the above are what hart calls external statements. These are the naturlal language of an external observer of the system who without himself accepting its rules of recognition states the fact that others accept it. This distinction is very important because if the community is only made up of people who look at the law only from the external point of view, a legal community cannot be extablished. 5.0 VALIDITY AND EFFICACY OF RULES Following the above distinction between internal and external points of view is Hart’s distinction between validty and efficacy as essential features of laws produced by legislator, and not of laws produced by scientists. On this Hart opines, “if the use of an accepted rule of recognition in making inter statements is understood and carefully distinguished from an external statement of fact, that the rule is accepted, many obscurities concerning the notion of legal validity will disappear.” This is because the word valid is often times applied to unstated but applied rules of recognition. Thus, we simply say that a rule is valid when it satisfies all the criteria provided by the rule of recognition. Connected with the issue of the validity of a rule, is the case of the efficacy of the rule. By efficacy here is meant that a rule of law which requires certain behaviour is obeyed more often than not. It is plain that there is no necessary connection between the va;idity of any particular rule and its efficacy. Unless the rule of recognition of the system includes among its criteria, as some do, the provision that no rule is to count as a rule of the system if it has long ceased to be efficacious. In explaining of the unconnected nature of validity and efficacy, we still note that, that a law is valid is no guarantee that it will be efficacious and that it is inefficacious is no proof that it is invalid. On this Hart writes, One who makes an internal statement concerning the validity of a particular rule of a system may be said to presuppose the truth of the external statement of the fact that the system is generally efficacious. For the normal use of internal statement is in such a context of general efficacy. It would however be wrong to say that statements of validity mean that the system is generally efficacious. Thus, the combination of both internal (validity) and the external (efficacy) points of view will make for a sound practice of the rule and the existence of a sound legal system. 6.0 THE PLACE OF MORALS IN FOUNDING RULES With regard to the place of morals in founding rules in Hart, it is the candid view of F.O.C Njoku that there exists a relationship between them, but that “the bone of contention between law and morality is how their relationship is to be conceived.” This is the fact because for Hart both law and morals are social phenomena used for the social control of behaviour. Hart in this regard follows the tradition of a necessary separation of law and morality. But he does not deny the minimal content which they both share as normative systems. He also accepts the fact of the role of morality in founding of law in hard or borderline cases, where law runs out in the face of application and interpretation. And as such moments the judge might allow his moral conviction come to bear in his legal judgement. But Hart also tries to warn the this relationship must not be over exaggerated, for the fact that they are both used as instruments of social control suggests “that law is best understood as a branch of morality or justice and that its congruence with the principles of morality or justice rather than its incorporation of order and threats as its essence.” Furthermore, Hart argues that there are different types of relation between law and morals. As such what is important is to distinguish some of the ways different things may be meant by the assertion or denial that law and morals are related. But he clearly emphasizes the basic that law, to some extent, has its roots in morals. Thus Hart opines, “it cannot seriously be disputed that the development of law, at all times and places has in fact been profoundly influenced both by the conventional morality and ideals of a particular social group and also by forms of enlightened moral criticism urged by individuals whose moral horizon has transcended the morality currently accepted.” But for the case that there must be some conformity between law and morals, Hart argues that this must not be the case. In line with the above, Hart goes ahead to emphasis the minimum content which law and morals share. As such the connection here between natural facts and content as well as legal and moral rules is based on a kind of purposive causality, i.e a kind od causality deliberately directed to a purpose or end. And these can be represented in the following areas: Human vulnerability, approximate equality; limited altruism; limited resources; limited understanding and strength of will, at these points morals and laws share a minimum content. But Hart’s conclusion in this regard is that morals have a place in founding of rules, but then rules should not be reduced to morals. 7.0 CONCLUSION On the issue of morality and law Hart advises that we take a wider perspective of the law. Thus he asserts, “A concept of law which allows the invalidity of law to be distinguished from its immorality, enables us to see the complexity and variety of these separate issues, whereas a narrow concept of law which denies legal validity to iniquitous rules may blind us all.”
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