SIR HENRY MAINE'S LEGAL THEORY

·         SIR HENRY MAINE (1822 – 1888) :    

Savigny’s method of the historical school was followed in England by Sir Henry Maine, Lord Bryce & many others who made studies of various legal systems on historical lines.  Maine published his first work ‘Ancient Law’ in 1861.  This is considered to be the manifesto of his lifework in which he stated his general doctrines.  He also wrote Village Communities (1871), Early History of Institutions (1875) & Dissertations of Early Law and Custom (1883).  He was law member in the Council of the Governor–General of India b/w 1861 & 1869, which provided him an opportunity for the study of Indian legal system.

Maine inaugurated both comparative & anthropological approaches to the study of law.  Unlike Savigny, Maine favoured legislation & codification, he did not share Savigny’s mystique of the Volksgeist & he used the study of legal history mostly to understand the past & not to determine the future course & standards.

Maine classified the development of law in the following stages : 

(i)       In the beginning, law was made by the commands of the ruler believed to be acting under the divine inspiration, e.g., Themistes of ancient Greek.  When a king decided a dispute by a sentence, the judgment was assumed to be the result of direct inspiration.  The king was not the maker of law, but merely an executor of judgments of the God.

(ii)      In the second stage, the commands crystallise into customary law.  Customs seem to have succeeded to the prerogatives of the king.  Hwr, they don’t appear to hv pretended to direct inspiration for each sentence & the progress of thought no longer permits the solution of a particular dispute to be explained by supposing an extra–human interposition.

(iii)     In the third stage, the knowledge & administration of customs goes into the hands of a minority, due to the weakening of the power of the original law-makers, usually of a religious nature, e.g. priests.  The ruler is superseded by a minority who obtain control over the law.

(iv)     In the fourth stage, the law is promulgated in the form of a code.

Static & Progressive Societies :

The growth of law was on a uniform basis amongst the primitive societies upto a certain stage of development.  The societies, which do not progress beyond the fourth stage & close the era of spontaneous legal development, r static societies.  The stationary/static societies don’t move forward beyond the era of the codes.

The societies, which go on developing their law by new methods, r called progressive societies.  They develop their law with the help of three instruments / methods, namely, legal fiction, equity & legislation, in order to make law harmonious to social needs & change.

(i)       By use of legal fictions, law is altered to changing needs of the society, while it is pretended that it remains what it was.  Thus, legal fictions change the law according to the changing needs of the society without making any change in the letter of law.  He thought fictions should be abandoned in a society because they made the law more difficult to understand & harmonise legal order.

(ii)      Equity is used to modify the law as a set of principles invested with higher sacredness than those of original law.  Equity came to remove the rigidity in law & to remove injustice, delay & other inconveniences.  According to Maine, equity is a body of rules existing by the side of the original civil law & founded on distinct principles.

(iii)     The final stage comes with the legislation, which is the last effective instrumentality of quick social reform.  Law can be enacted by explicit declarations of intention incorporated in the language of legal enactments.  Maine regarded it as the most desirable method of legal change.

In early societies–both ‘static’ & ‘progressive’, the legal condition of the individual is determined by status, i.e., his claims, duties, etc. are determined by law.  The march of progressive societies witnessed the disintegration of status & the determination of legal condition of the individual by free negotiation on his part.  The development of societies was summed up by Maine in the following famous phrase, “If we employ status to signify the conditions only & avoid applying the term to said conditions, we may say that the movement of the progressive societies has hitherto been a movement from status to contract”.

From a condition of society, in which all the relations of persons wr summed up in the relation of family, we seemed to hv steadily moved towards a phase of social order in which all these relations arose from free agreement of individuals.

According to Maine, status is a fixed condition in which an individual finds himself without reference to his will and of which he can’t divest himself by his own efforts.  The group, not the individual, is the primary unit of social life.   With the progress of civilisation, this condition gradually gives way to a social system based on contract.  This is the age of the standardised contract & of collective bargaining (trade unions, business associations, etc.).  Even the contracts, which an individual enters into in everyday life, have been standardised as contract for water, electricity or contract for a carriage with a railway company.  The freedom of contract is, thus, being curtailed every day.

Thus, Maine’s theory of ‘Status to Contract’ does not have much force in the modern age.  In India, the policy of ‘mixed economy’ has assumed greater control over individual liberty & freedom.  The State can impose reasonable restrictions in the interest of the public {Art. 19(6)}.  Pollock says that this theory is limited only to laws of property because personal relations like marriage, minor’s capacity, etc. are still matters of status & not of contract.

However, in one sense, Maine’s theory still holds good.  The trend of legislation in undeveloped or developing countries is to remove personal disabilities, which arise due to membership of a class (status).

On the whole, Maine presented a balanced view of history of law.  Savigny had explained the relation b/w community & law, but Maine went further & pointed out the link b/w the developments of both.  His conclusions are based on comparative study of different systems & hence their value is greater than other studies based on Roman Law exclusively.  Influenced Friedmann, Dicey, etc.

In the words of Dr. Friedmann: It can be concluded that the contribution of Maine is an important piece of comparative legal research to a legal theory inspired by principles of historical evolution.  His great contribution to legal theory specially lies in the combination of what is best in the theories of both Montesquieu & Savigny.  Maine’s theory avoids the danger of an excessive disintegration of theoretical laws of legal evolution.  It is also free from the abstract & unreal romanticism, unlike Savigny’s theory.

·         Difference b/w Historical & Analytical School :          

S.No.	Analytical School	Historical School
1.	Law is the command of the sovereign (created by sovereign).	Law is found & not made.
2.	Law is enforced by the sovereign.	Law is independent of political authority & its enforcement.
3.	Example of typical law is statute.  Custom isn’t law, until its validity has been established by a judicial decision/by an Act of legislature.	Example of typical law is custom.  Custom is law by itself.  It does not require State recognition to become a law.
4.	Force of politically organised society is the basis of law.	Law rests on the social pressure.
5.	Judges find themselves to interpretation of statute.	Judges to consider only history of legislation.
6.	Applicable to developed countries – matured legal systems.	Applicable to developing countries – primitive legal institutions of society.

HISTORICAL SCHOOL – SAVIGNY & MAINE

JOHN AUSTIN'S THEORY OF LAW AND POSITIVISM

JOHN AUSTIN

·         JOHN AUSTIN ( 1790 – 1859 ), who was a Prof. in London University, is the founder of the Analytical School.  He is considered as the Father of English Jurisprudence.  He was elected to the chair of Jurisprudence in the University of London in 1826.  Then he proceeded to Germany & devoted some time to the study of Roman Law.  Austin, a disciple of Bentham, is a positivist & concerned with ‘what law is’ & ‘not what law ought to be’.  ‘Positus’ means ‘as it is’.

The first six (6) lectures were published in 1832 under the title ‘The Province of Jurisprudence Determined’, while rest were published posthumously in 1861.  He avoided metaphysical method, which is a German characteristic.  The method, which Austin applied, is called analytical method & he confined his field of study only to ‘positive law’.  Therefore, the school founded by him is called by various names – ‘Analytical’, ‘Positivism’, & ‘Analytical Positivism’.  Prof. Allen thinks it proper to call the Austin’s school as ‘Imperative School’ on the basis of is conception of law, i.e., ‘Law is Command’. 

For Austin, the matter of jurisprudence is ‘positive law’; ‘law simply & strictly so called’ or ‘law set by political superiors to political inferiors’.  He believed that ‘Law’ is only an aggregate of laws & defined ‘law’, “As a rule laid down for the guidance of an intelligent being by an intelligent being having power over him”.  To him, law is the command of a sovereign requiring his subjects to do or forbear from doing something.  There is an implied threat of ‘sanction’ if the command is not obeyed.

L A W

-----------------------------------------

Law properly so called               Law improperly so called

           -------------------------------                      --------------------------------

Law by God               Law by humans          Law by analogy          

or Divine Law               / Laws  set by                                     Law by metaphor

                                       men for men

          --------------------------------             

Law by political         Law  by  superiors     Law    of   fashion       All   the   laws

superiors       to         to   inferiors,   but     & public opinion,        of nature, i.e.,

political inferiors       the superiors r not     i.e., international       law of motion,

                                  political superiors     law,   customs   &      gravitation,

                                                                   traditions                    etc.

This is called

Positive Law                          --------------------------

                                               Positive   Morality

He distinguished b/w ‘laws properly so called’ & ‘laws improperly so called’.  The former r general commands addressed to the community at large & enjoined classes of acts & forbearance.  They r divided into laws set by God / divine law / law of God & laws set by men to men.  Laws set by men to men also fell into 2 categories – the first consisted of laws set by political superiors to political inferiors.  This was termed by Austin ‘positive law’ or ‘law simply & strictly so called’ & was, to him, the subject matter of jurisprudence.  Thus, law properly so-called must hv 3 elements– (i) command, (ii) sanction & (iii) sovereign.  The second category consisted of laws set by men to men neither as political superiors nor in pursuance of rights conferred upon them by such superiors, e.g., those set by a master to a servant or the rules of a club.  They r still laws properly so called because they r commands, but he distinguished them from positive law by giving them the term ‘positive morality’. 

Analogous to the laws of the latter class r a number of rules to which the name ‘laws improperly so called’ is given.  They are opinions or sentiments of an undeterminate body of men & laws of fashion or honour.  He places intl. law under this class.  In the same way, there r certain other rules which r called law metaphorically – laws of nature.  They are laws improperly so called.

‘Positive law’ (law simply & strictly so called or law set by political superiors to political inferiors) is the only proper subject matter of jurisprudence.  Jurisprudence is the general science of positive law. 

Laws properly so called are species of commands.  But being a command, it flows from a determinate source or emanates from a determinate author.  For whenever a command is expressed of intimated, one party signifies a wish that another shall do or forbear & the latter is obnoxious to an evil which the former intends to inflict in case the wish is disregarded.  The key to understanding law properly so called lies in duty which is created by the command of a sovereign.  Duty & sanction are correlative terms – whenever duty lies, a command has been signified & whenever a command is signified, a duty is imposed. 

In a nutshell, by law, Austin means command, sanction & duty (C+S+D), which r inextricably linked & can’t be separated.  According to him, there r 3 kinds of laws, which, though not commands, r still within the province of jurisprudence:

(i)       Declaratory of Explanatory Laws : Austin does not regard them as commands because they r passed only to explain laws already in force, e.g., General Clauses Act.

(ii)      Laws to Repeal Laws : These too r not commands but r rather the revocation of a command.  They release from duties imposed by existing laws & r named permissive laws.

(iii)     Laws of Imperfect Obligation : These laws have no sanction attached to them.  Thus, there is a duty, but in case of non-compliance, there is no sanction, e.g., D.P.S.P., F.D.s, etc.

Criticisms of Austin’s Theory :                                             

(i)       Customs ignored : For Austin, law is the command of sovereign.  In the early times, not the command of any superior, but customs regulated the conduct of the people.  Even after coming of State into existence, customs continued to regulate the conduct.  Therefore, customs should also be included in the study of jurisprudence, but he ignored them.  Customs have been in existence since old times.  Customs hv also bn an important source of law.  As per Austin, customs can only be a law if the sovereign accepts them as law, while customs provide the basis on which the law can be based.  Thus, even if the sovereign does not recognise them as law, customs hv always bn an important source of law & can’t be ignored.

(ii)      Judge-made law : There is no place for judge-made law.  In the course of their duty (while applying precedents & interpreting the law), judges make law.  Though an Austian would say that judges act under the powers delegated to them by the sovereign, therefore, their acts r the commands of the sovereign.  However, in modern times, judges perform a creative function & Austin’s definition of law does not include it. 

(iii)     Command theory untenable : Command presupposes a commander.  No indeterminate party can command, expressly or tacitly or can receive obedience or submission.  The question is whether he can be discovered, who might be regarded as having commanded the whole corpus of law.  In democratic system, it is not possible that one person commands. 

(iv)     Sanction is not the only means to induce obedience : As per Austin, it is the sanction alone which induces the man to obey law, while it is open to criticism from many points of view as there r many other considerations such as reasoning, logic, love, etc. due to which people obey.

(v)      International Law : Austin put Intl. Law under positive morality a/w the law of honour & law of fashion.  The so-called law of nations consists of opinions or sentiments.  It, therefore, is no law properly so called.  The main ingredient of law lacking in Intl. Law is sanction, but this alone will not deprive from being called law.  Now-a-days, Intl. Law is playing an important role &, thus, it can’t be totally negated.  Hence, nobody will accept that Intl. Law is not law.  Therefore, according to Austin, a very imp. branch of law shall be excluded from the study of jurisprudence.

(vi)     Relation of law & morals overlooked : To Austin, law isn’t concerned with morals but this isn’t correct proposition.  Law is not an arbitrary command, but it is a growth of an organic nature.  Moreover, law has not grown as a result of blind forces, but it has been developed consciously & has been directed towards a definite ends.  It isn’t completely devoid of ethical & moral elements.  Any law, which is devoid of ethics or morality, can’t withstand the test of time.  People don’t accept it whole-heartedly because of it being unethical.  Hence, morals hv always bn an integral part of law. 

(vii)    Other Laws ignored : Austin does not cover procedural laws, e.g., Civil Procedure Code, etc.  He also does not talk about laws conferring privileges, e.g., Payment of Bonus Act, Gratuity Act, etc.

Applicability of Austin’s Theory In India :                           

(1)      We don’t hv a legally unlimited or indivisible sovereign.  Our constitution is supreme, though it can be amended, but basic structure can’t be. 

(2)      Though there is separation of powers, yet sometimes judiciary makes law (Art. 141 – Vishakha’s case & D.K Basu’s case). 

(3)      Ordinance making power of the Governor & the President (Art. 123 & 213);

(4)      We have quasi-federal system.  Though the President has the supreme power, but the same is exercised by the Prime Minister. 

(5)      DPSP r not positive law as per Austin.  Though DPSP r non-justiciable, yet they r important as they govern the guidelines for the society.  Thus, the principle of ‘is’ & ‘ought’ fails.

Comparison of Bentham & Austin :

(i)       Bentham provided a deeper & more adaptable theory.  His concept of sovereignty was flexible as it avoided indivisibility & illimitability.  He was, thus, able to accommodate the division of authority b/w organs as in a federation or division in certain areas as well as restrictions of authority.

(ii)      His concept of law was broader than Austin’s.  He avoided the absurdity of ‘law properly so called’. 

(iii)     His sanction was both wider & less important than Austin’s sanction.  Laws are still laws even though supported by moral or religious sanctions or they may even be accompanied by rewards.  He, thus, had no need to resort to a sanction by nullity. 

ANALYTICAL SCHOOL / POSITIVISM (BENTHAM & AUSTIN); HART’S CONCEPT OF LAW & KELSEN’S PURE THEORY OF LAW

JEREMY BENTHAM'S THEORY OF LAW

   JEREMY BENTHAM

      JEREMY BENTHAM ( 1748 – 1832 ) laid down the foundation of positivism in the modern sense of term.  He was a ferment champion of codified law & of reforming English law, which was, according to him, in utter chaos.  He distinguished b/w ‘expositional jurisprudence (what the law is)’ & ‘censorial jurisprudence (what law ought to be) or the art of legislation’.  The main function of the former was ‘to evaluate law’, while that of the later ‘to analyse law’.       In seeking answers to the questions { What is a penal code of laws? / What is a civil code? }, he had to investigate the nature of law, which led him into a maze through which he mapped out a path of laws in general.  This was finished more or less in 1782, but remained unpublished till 1939 when Prof. Everett disinterred it & published under the title ‘The Limits of Jurisprudence Defined’ in 1945.  A revised edition was published as ‘Laws in General’ in 1970 under the editorship of Prof. H.L.A. Hart.

Bentham gave the ‘Principle of Utility’, which says, “Only those laws are important, which give maximum happiness to the maximum number of people”.  Those laws, which r not giving maximum pleasure & giving maximum pain to the people ought to be removed.  Pleasure & pain r the basic ingredients of this principle.  He also gave “Hedonistic Calculus, which is the imaginary principle to judge pleasure & pain of any law”.  

ANALYTICAL SCHOOL / POSITIVISM (BENTHAM & AUSTIN); HART’S CONCEPT OF LAW & KELSEN’S PURE THEORY OF LAW

KELSEN’S PURE THEORY OF LAW: LEGAL THEORY

·         KELSEN’S PURE THEORY OF LAW :

Kelsen was a Prof. of Jurisprudence in Vienna University, Austria.  He owes his fame mainly due to his Pure Theory of Law.  According to him, a theory of law must deal with law as it is actually laid down not as it ought to be.  Kelsen advocated that a theory of law should be uniform and it should be to all time & in all places.  A theory is something, which has universal application.    In order to make his theory to have universal application, he desisted from including the elements of sociology, politics, economics, history or other disciplines because they r subject to variation from one place to another & from one time to another.  Thus, he devised a pure theory, which would have the ingredient of only one discipline, i.e., law & totally devoid of sociology, political science, economics, etc.

He insisted that a theory of law must be free from ethics, politics, sociology, history, etc.  Though their value is not denied, but Kelsen insisted that a theory of law must not have such considerations.  There must be a pure theory of law.  It is for this reason that Kelsen refused to define law as a command of sovereign, as Austin stated, because that introduces subjective & political considerations. He wished his science to be really objective.

For Kelsen, law is normative & not a natural science based on cause & effect.  It is a norm that directs an official to apply force under certain circumstances.  Thus, his theory of law is a theory of positive law.

Every body of facts has two distinguishable elements :

(i)       external manifestation of human conduct that is perceived by our senses

(ii)      the legal meaning of this act, i.e., the meaning conferred upon the act by the law.

e.g., people assemble in a large room, make speeches, some raise their hands, others don’t.  This is the external manifestation of the fact.  Its meaning is that a statute is being passed, that a law is being created.

Every manifested act is subject to 2 meanings – subjective & objective meaning, e.g., somebody makes some dispositions stating in writing what is to happen to his belongings when he dies.  The subjective meaning of this act is a testament.  Objectively, however, it may not be a testament due to non-observance of some legal formalities, etc.

Difference b/w Austin & Kelsen :

(i)       The view of Austin is that law is a command backed by a sanction.  However, Kelsen rejects the idea of command as it introduces a psychological element into a theory which should be pure.

(ii)      To Austin, ‘sanction’ is something outside the law which imparts validity to law.  However, Kelsen maintains that the legal ‘ought’ can’t be derived from any fact outside the law.

(iii)     To Austin, only command is a norm, while, to Kelsen, policy, rule, doctrine, standards, etc. r all norms in addition to the command.

Norm & Grundnorm :

Kelsen said that ‘norm’ is a rule forbidding or prescribing certain behaviour.  In other words, norm is the meaning of an act of will by which certain behaviour is commanded or permitted or authorised.  Legal norms always belong to the realm of the ‘ought’.  It is different from moral norm.  The ‘ought’ in the legal norm refers to the sanction to be applied to contra-legal behaviour.  In this process, Kelsen achieved two objectives :

(i)       he removed the natural law and moral or ethical criteria from the concept of positive law; &

(ii)      it also enabled him to solve the problem – how a norm can be said to be valid in case of illegal behaviour.

‘Grundnorm’ or the basic/fundamental norm is the initial hypothesis upon which the whole system rests.  The ‘Grundnorm’ is the justification for the rest of the legal system.  It is essential that it should command a minimum of support. When it ceases to be the basis of the legal order, it is replaced by some other ‘Grundnorm’ which obtains the support of the people.  The ‘Grundnorm’ is the starting point for the philosophy of Kelsen.

A legal order is comprised of norms placed in a hierarchical manner – one norm placed above another norm & every norm deriving its validity from the norm above it.  The hierarchy takes a pyramid form & symbolizes the legal order.  The highest norm in the hierarchy is called the basic norm or the Grundnorm.

                                               

                                                  

   Basic Norm /

                                                   Grundnorm

                                                 

                                               

                            

                            

        Specific Official Action / Particular Norm

The function of ‘Grundnorm’ is to give objective validity to positive legal order, i.e., it is the common source for the validity of all norms that belong to legal order.  Kelsen offered no explanation about the source of validity of the ‘Grundnorm’.  He just presupposed that the ‘Grundnorm’ is valid.  Kelsen stated that ‘Grundnorm’ need not be the same in every legal order, but a ‘Grundnorm’ of some kind will always be there.  The basic point is that those who are in effective control ought to be obeyed.

The following various features of ‘Grundnorm’ will illustrate the reason for its position in pyramidal structure :

(i)       Grundnorm is not a positive norm or rule of law, but is an extra-legal or non-legal norm as it is not derived from any higher norm.

(ii)      It itself is not valid or invalid, it is an assumption or a jural postulate.

(iii)     It only empowers & does not impose sanctions.

(iv)     It validates the rest of the legal system / order.

(v)      The pre-supposition of basic norm is based upon effectiveness.

(vi)     Basic norm is the pre-supposed starting point of the procedure of creation of norms.

(vii)    It gives validity to norms, but does not give content to norms.

Kelsen builds his pure science on a philosophical basis.  Many philosophers emphasize that jurisprudence must study relationship b/w law & justice, but Kelsen wished to free the law from the metaphysical mist of justice, material of social science & natural law.  He also refused to follow Austin’s view (law is a command of sovereign) as it introduces subjective & political considerations in the concept of law.  He insisted that the sole object of the study of jurisprudence is the nature of norms or standards which r set up by law. 

For him, law & state r really the same thing viewed from different aspects.  A legal order becomes a state when it has developed organs for creation, declaration & enforcement of law.  Kelsen specially emphasized that the relations b/w state & law r inter-connected & traditional approach can’t continue in the emerging conditions of the society.  But the practical importance of Kelsen’s approach is that he emphasized that law is a more fundamental notion than that of the state.  While it is true that law can’t exist without a legal order, that order may take forms other than that of the state.  Hence, Kelsen’s theory is wider and, therefore, more acceptable than that of Austin.

An important feature of Kelsen’s doctrine is that the state is viewed as a system of human behaviour & an order of compulsions.  Thus, only relatively centralised legal orders r states.

Kelsen also applied his theory of pure science of law to the system known as ‘International Law’, but revealed many limitations.  The pure theory requires that ‘Grundnorm’ be discovered.  What Kelsen said was that the ‘Grundnorm’ should command a minimum of support.  There r two possible ‘Grundnorm’ in Intl. Law – (i) The supremacy of each system; & (ii) the supremacy of intl. law.  Every national legal order can recognise any norm superior to its own Grundnorm.

In view of Prof. Dias, it may be the principle of pacta sunt servanda & with ref. to intl. law, the ‘Grundnorm’ is a pure supposition unlike that of municipal law.

Kelsen didn’t regard the distinction b/w public & private law.  He stated that contract may play as great a part as public law.  To him, law may be made either by a parliament, a judge or a private citizen.  Thus, a contract executes a superior norm & creates a binding obligation.  Kelsen believed that reason could derive one form from another, but that reason would not create an original norm, i.e., ‘Grundnorm’ / one which was not derived from another.

Criticisms :

(i)       The basic norm is a very troublesome feature of Kelsen’s system.  It is not clear what sort of norm this really is, nor what it does, nor where we can find it.  (per Lord Lloyd)

(ii)      Kelsen did not explain the existence of the basic norm on which the whole legal system was founded by him.  (per Prof. Goodhart)

(iii)     As regards the quality of purity, for all purposes, it is dependent on the basic norm.  Since that basic norm itself is the most impure, the subsequent operations must reproduce that original impurity in the inferior norm, thereby making the whole system impure.

(iv)     The reasons for the validity of a norm can only be the validity of another norm – total pre-supposition.

Conclusion : Kelsen’s legal theory is an original piece of research, which has successfully made a vital contribution to jurisprudential thought.  His views reg. norms, right, state, public & private law, have received wide appreciation from various academicians & jurists.  His analysis about legal order is thought-provoking.  Being original & creative piece of research, it was bound to encourage contemporary jurists, eminent judges & philosophers to react & raise many questions for further clarification & research.

Though Kelsen emerged 100 years after Austin, due to lack of development of communication channels, he was totally unaware of Austin’s theory.  Hence, Kelsen viewed positivism from an angle different from that of Austin.  Resultantly, it can’t be said that Kelsen’s Pure Theory of Law is an improvement upon Austin’s Command Theory. 

However, complete diversity is not possible within the same discipline & there were similarities b/w Kelsen’s & Austin’s approach to the extent that they both:

·         took law as it is;

·         talked of fact as it exists;

·         were positivist;

·         were analysist; &

·         were imperative thinker.

ANALYTICAL SCHOOL / POSITIVISM (BENTHAM & AUSTIN); HART’S CONCEPT OF LAW & KELSEN’S PURE THEORY OF LAW

HART’S CONCEPT OF LAW : LEGAL THEORY

·         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) :