Hart's rule theory: law as the union of primary and secondary rules
LUG-102 Jurisprudence — Legal Method, Indian Legal System and Basic Theory of Law, Unit II: Rule theory of law: law as a system of primary and secondary rules (H.L.A. Hart). · LLB · 60 min
H.L.A. Hart's The Concept of Law (1961) rebuilt positivism without Austin's command and without Kelsen's presupposed Grundnorm. The lecture explains his criticism of the command theory (the gunman), the three defects of a society with primary rules alone, the secondary rules of recognition, change and adjudication, the rule of recognition as a social fact and how it differs from the Grundnorm, the internal and external points of view, the open texture of rules and judicial discretion, the minimum content of natural law, and Hart's three great debates (with Fuller on the grudge informer, with Devlin on morality, with Dworkin on principles and Riggs v. Palmer). It ends with Hart in India: Article 13 and the Constitution as the rule of recognition. Asked in 2019-20 and 2022-23 and the natural pair to any Austin or Kelsen question.
Objectives
- Explain Hart's criticism of the command theory and the difference between being obliged and being under an obligation.
- Distinguish primary rules from secondary rules and explain how the rules of recognition, change and adjudication cure the defects of a pre-legal society.
- Compare the rule of recognition with Kelsen's Grundnorm and Austin's sovereign.
- Explain the internal point of view, the open texture of rules and the minimum content of natural law.
- Apply the Hart-Fuller and Hart-Dworkin debates and locate the rule of recognition in the Indian Constitution (Articles 13, 141, 368).
Slides
- Hart and The Concept of Law (1961)
- Hart against Austin: the gunman, obligation and the variety of laws
- Primary and secondary rules
- The pre-legal society and its three defects
- The rule of recognition, and how it differs from the Grundnorm
- The internal and external points of view
- Open texture: the core, the penumbra and judicial discretion
- The minimum content of natural law, and the Hart-Fuller debate
- Hart and Dworkin: rules and principles, Riggs v. Palmer
- Hart in India: Article 13 and the Constitution as the rule of recognition
- Criticism, comparison and summary
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