H. L. A. Hart's Concept of Law and its Critics

Academic Paper , 2021 , 8 Pages , Grade: A

Law - Philosophy, History and Sociology of Law

This article presents an overview of HLA Hart's legal theory, which unites primary and secondary rules to address social defects, including uncertainty, staticity, and inefficiency. Hart proposes the Rule of Recognition to address uncertainty, the Rule of Change to address staticity, and the Rule of Adjudication to address inefficiency. This article will include hart’s criticism of John Austin and Kelsen’s theory. Furthermore, this article will highlight criticisms of Hart's theory by John McCormick and Roger Cottrell and different jurists. Moreover, Hart's elaboration of the ROR will be extensively discussed, including its criteria, functions, and criticisms.

ABSTRACT

This Article presents an overview of HLA Hart's legal theory, which unites primary and secondary rules to address social defects, including uncertainty, staticity, and inefficiency. Hart proposes the Rule of Recognition to address uncertainty, the Rule of Change to address staticity, and the Rule of Adjudication to address inefficiency. This article will include hart's criticism of John Austin and Kelsen's theory. Furthermore, this article will highlight criticisms of Hart's theory by John McCormick and Roger Cottrell and different jurists. Moreover, Hart's elaboration of the ROR will be extensively discussed, including its criteria, functions, and criticisms.

KEYWORDS: HLA Hart theory, Rule of change, Rule of adjudication, Rule of recognition, John Austin, Kelsen, Critisicm...

INTRODUCTION

According to Hart a developed legal system consists of primary rules and secondary rules. He introduced the concept of roles while criticizing Austin command theory. Hart believed that Austin theory failed because it ignored the concept of rule and his theory is nothing more than an order backed by sanctions and without rules it is impossible for any legal system to exist. In our article we will be discussing Hart's theory in detail, how he criticised Austin and kelsen's theory, social defects and criticism of hart's theory.

HART'S THEORY

According to Hart union of primary and secondary rules is the key to science of jurisprudence. On one hand there are primary rules which are also known as fundamental rules that impose duty on individuals where rule ask them to do something or refrain them from doing something. These rules govern the behaviours of members of the society. On the other hand there are secondary rules which are also known as parasitic rules that replaces of modifies the original rule to regulate their operation in the society, confers authority and allows further modification of duties.

Hart said that Austin theory lacked secondary rules and was totally comprised of primary rules. He believed that his theory was only concerned with the bad man but not to the variety of laws. Hart stated that Austin theory defined obligation that was conditioned with sanctions in result of any disobedience. Hart says that if secondary rules are absent from a society than they will be subjected to social deficiencies.

SOCIAL DEFECTS

According to Hart, uncertainty, staticity and inefficiency are three dimensions of social deficits.

Uncertainty- is a deficit as there is confusion in a society about what accounts for law and what doesn't falls under the definition of law. Because law is evolving in nature so no source of law can be identified as a standard in the pre-legal system. It is possible that people would be unaware of the existence of a particular rule.

Staticity- When we talk about staticity, law is always changing so if we follow pre- legal system rules law will become static and motionless, and this will make things rigid for a society. Static law is most often not welcomed to changes according to the circumstances hence there is no mechanism for adapting the rules to changing circumstances.

Inefficiency- Lastly when we talk about inefficiency as a social deficit it means in pre-legal system there was no proper and established method of adjudication and they were ineffective because there was no mechanism for resolving disagreement over interpretation and enforcement of rules. There was no adjudication method to find out the time of violation. This put legitimacy and effectiveness of rules in limelight.

CURE TO SOCIAL DEFECTS

According to Hart to resolve these social deficits we must combine primary and secondary rules together. He believed that this union would bring a system from pre-legal to legal stage. Primary rules pertain to regulating human behaviour and dictate what actions are required, prohibited, or allowed. These rules are established through social practices and can be altered or eliminated through various means such as legislation or judicial decisions. Conversely, secondary rules are focused on the recognition, introduction, elimination, and modification of primary rules. They define the procedures for recognizing the validity of primary rules, introducing or eliminating them, and interpreting or modifying existing rules.

Rule for curing social defects

There are three kinds of secondary rules; the rule of change is the first rule which encircle all rules that regulate the process of changing primary rules which also includes the rule to change or delete any primary rules. This rule empowers the lawmakers to introduce new primary rules and repeal old ones. This rule of change cure the social deficit caused by staticity and helps maintain evolving nature of law. Second is rule of adjudication, which authorizes the officials to furnish with judgment in occurrence of alleged wrong such as through arbitration, judicial proceedings or any other mechanism of enforcement of rule. This rule helps in establishing a proper method for resolving controversies/disputes and interpretation of laws. This rule eliminates the social deficit caused by inefficiency of rules. Thirdly we have rule of recognition, this rule constitutes what does and does not constitutes primary rules of society. This rule is an ultimate supreme law that establishes the validity of laws and serves as critical factor. This rule is at the top of all other rules and if a law is in accordance with rule of recognition than it is valid. This rule eliminates the social deficit of uncertainty.

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• Course: Western Jurisprudence
• Grade: A
• Author: Ayesha Masood (Author)
• Publication Year: 2021
• Pages: 8
• Catalog Number: V1350087
• ISBN (PDF): 9783346861887
• Language: English
• Tags: HLA Hart theory, Rule of change, Rule of adjudication, Rule of recognition, John Austin, Kelsen, Critisicm