· HART’S CONCEPT OF LAW :
Prof. H.L.A. Hart, a British Philosopher and an eminent jurist, is considered as the significant exponent of Analytical Positivism. Hart in his vital contribution ‘The Concept of Law’ (1961) has expounded his legal theory as a system of rules by exploring the relationship b/w law & society. His main objective is to further explain understanding of law, coercion & morality.
According to Hart, the law is a system of rules. Two types of rules r – ‘Primary’ & ‘Secondary’. Hart rejects Austin’s theory that rule is a kind of command & substitutes a more elaborate & general analysis of what rules r. Hart observed, “Union of these two types of rules is the most powerful tool, which will lead to proper general analysis of the situation created by Austin’s definition of law.
PRs r those that impose duty upon individuals & r binding because of practices of acceptance which people r required to do or to abstain from certain actions. In other words PRs impose duties obligations on individuals in primitive community. Due to social control, such community suffers from 3 defects – uncertainty, static character & inefficiency. The stage of primitive community requires proper modification to make the social structure more effective, efficient & certain. This gives rise to SRs & introduction of SRs (power conferring rules, enabling legislations, to determine when the rules hv bn broken) is described as step forward as important to society as the invention of the wheel. He emphasized that ‘Law is a union of P&SRs’ &, thus, it is born in the society. Under PRs, human beings r required to do or abstain from certain action, whether they wish or not. SRs r in a sense parasitic upon or secondary to PRs. While PRs impose duties, SRs confer powers.
While PRs r concerned with the actions which the individuals must or must not undertake, the SRs specify the ways in which the PRs may be conclusively ascertained, introduced, eliminated, varied & the fact of their violation conclusively determined.
According to Hart, a rule is :
(i) something, which creates obligation & simultaneously
(ii) a standard by which one can judge whether rule is right or wrong.
Defects of primitive society / regime of PRO :
(i) Uncertainty about what r primary rules of obligation.
(ii) Static Character, i.e., new rules r not created & old ones r not repealed.
(iii) Inefficiency of the diffused social pressure by which rules r maintained. There is a question of who will ascertain finally & authoritatively if a rule has been violated or not or in case of conflict b/w two rules.
The remedy for each of these 3 defects consists in supplementing the PRO with SRs, which r rules of a different kind – recognition, change & adjudication (RCA).
The removal of defects will transform a primitive society, i.e., a pre-legal society into a developed society, i.e., a legal society. If we consider the structure which results from the combination of PRO with the SRs of RCA, we have a systematic legal system to meet the requirements of the society.
Remedies :
(i) First remedy for uncertainty is the introduction of the rules of recognition (ROR). ROR may be simple or complex. It is simple when it is written in texts/statutes. It is complex when it is not directly mentioned anywhere & has to be deciphered or deduced from other sources, i.e., doctrine of basic structure, the rule of death sentence only in the rarest of rare cases, etc. In a developed legal system, the ROR r more complex & lay down more than one criterion for identification of the ROR–customs, precedents, etc.
(ii) Second remedy for static nature is the introduction of the rules of change (ROC), i.e., introduction of legislature which may enact new ROR & repeal old ones that were created by customs or traditions & r now undesirable. Whenever ROC is present, the primary ROR will also be there because only ROR will identify by reference the legislation as a ROC.
(iii) Third remedy for inefficiency is the introduction of the rule of adjudication (ROA), i.e., the judiciary to authoritatively determine whether on a particular occasion a PR has been violated or not. ROA don’t impose upon the judges the duty to adjudicate. Rather, they confer judicial powers & a special status on judicial declaration reg. the breach of obligations.
The SRs (ROR, ROC & ROA) provides the centralised official ‘sanctions’ of the system. They describe the heart of a legal system in combination with PRs.
Validity & Efficacy :
The statement that a particular rule is valid means that it satisfies all the criteria provided by the ROR. Thus, the ROR is the reason for the validity of a PRO. The efficacy of the rule means that a PRO, which requires certain behaviour, is obeyed more often than not. The validity & the efficacy of a rule of obligation r two different things. But where a rule is not efficacious in the sense that it is not obeyed by anybody, then a serious challenge can be posed on its validity also.
Rule of Recognition as an ultimate rule :
The ROR, which provides the criteria by which the validity of other rules of the system is assessed, is an ultimate rule. ROR gives validity to PRO but there is no rule which provides criteria for the assessment of the validity of the ROR itself. The validity of the ROR can’t be questioned; such questions r invalid questions. However, the existence & validity of the ROR need not be presupposed as is the case with Kelsen’s Grundnorm. Hart’s ROR is positive.
According to Hart, there r two minimum conditions necessary & sufficient for the existence of a legal system :
(i) PRO, which r valid according to the ultimate ROR, must be generally obeyed; &
(ii) ROR, which specifies the criteria of legal validity & ROC & ROA, i.e., SRO must be effectively accepted as common public standards of official behaviour by its officials.
While the first contention is one which only private citizens need to satisfy, the second condition must be satisfied by the officials of the system. The officials should observe ROR from internal as well as external point of view, while the private citizens need not have an internal point of view.
External View : It is taken by those who r concerned with the rules merely as an observer who does not himself accept them. They r concerned with the rules only to the extent that any violation of the rules invites sanctions, “I was obliged to do it, I am likely to suffer for it if ...”
Internal View : It is taken by those members of the society who voluntarily accept the rules & uses them as guides of their own conduct & as a criterion to evaluate other people’s conduct.
Criticisms / Difference with Austin : The foundation of Hart’s theory of law is made of the critical evaluation of Austin’s theory of law.
(i) Hart said that Austin has talked about society & not a legal system.
(ii) He said that Austin failed to acknowledge that the laws r applicable not only to the general members of the society, but also to the sovereign members of the society in their role as individual citizens.
(iii) All the laws r not coercive commands. There r other varieties of law, such as laws conferring legal powers to adjudicate (public powers) or legislate or to create or vary legal relations (private powers).
(iv) There r legal rules like customs, which Austin completely ignored.
(v) The analysis of law in terms of the sovereign, habitually obeyed, failed to take into account model legal system.
(vi) While Austin’s command merely predicts the obligation, Hart’s rule actually constructs the obligation.
(vii) In place of Austin’s monolithic model, Hart suggests a dual system consisting of two types of rules – which he described as PRs & SRs.
(viii) Hart said that the judges have a limited discretion, but, in fact, the judicial discretion must be conceived in positivism permitting judges to look outside law for standards to guide them while deciding cases.
(ix) Austin & Kelsen condemned natural law, but Hart considers that it is necessary for law or morality to have a certain content of natural law. Rules of morality r implicit in Hart’s system of law of PRs & SRs.
(x) For Prof. Dias, distinction b/w a legal & pre-legal state of affairs is not at all clear. There is difficulty in finding ROR. He also questioned the sharp distinction b/w rules creating duties & rules creating powers as a legal system is constituted by their union.
The idea of obligation : The Gunman situation : A orders B to hand over his money & threatens to shoot him if he doesn’t comply.
According to Austin, it illustrates the notion of obligation or duty in general. A must be the sovereign habitually obeyed & the orders must be general prescribing courses of conduct & not single actions. Here, the meaning of obligation lies in the fact that B, if he obeyed, was obliged to hand over money.
B had an obligation or duty to hand over money. But there is a difference b/w the assertion that someone was obliged to do something & the assertion that he had an obligation to do it. The first is often a psychological statement about the beliefs & motives. Hart says that it can be said that B was obliged to hand over his purse, but it can’t be said that he had an obligation to do that.
A person had an obligation, e.g., to tell the truth or report for military service. The statement that he had an obligation is quite independent of the question whether or not he in fact reported for service; the statement that someone was obliged to do something normally carried the implication that he actually did it.
Hart has made further contributions on Austin’s approach to law as also his research has provoked many other jurists from European Countries to develop & critically examine his ideas thereby enriching the Analytical Jurisprudence.
ANALYTICAL SCHOOL / POSITIVISM (BENTHAM & AUSTIN); HART’S CONCEPT OF LAW & KELSEN’S PURE THEORY OF LAW (UNIT – I) :
ANALYTICAL SCHOOL / POSITIVISM (BENTHAM & AUSTIN); HART’S CONCEPT OF LAW & KELSEN’S PURE THEORY OF LAW (UNIT – I) :
