Introduction
Law is one of the fundamental institutions of any civilized society needed for stable development and growth. The existence of strict regulations guarantees that all members of a particular community will be protected from abuse, unfair use of power, and the rule of the strongest. The law also ensures the even distribution of benefits and helps to avoid anarchy. For this reason, starting with ancient times, every society had its own set of regulations and codes of behavior acting as the law and establishing a particular system of relations between individuals. The significance and scope of this phenomenon resulted in numerous philosophers’ attempts to investigate its nature and formulate the essential elements needed for the work of the legal system. Hart was one of the thinkers who offered his view of law and the factors necessary for its work.
Hart’s Theory
In general, Hart’s theory rests on the idea of the primary and secondary rules’ union. Starting his cogitations on the legal system, he assumes that only a small community with ties of kinship can successfully live using the regime of unofficial rules (Hart 92). These regulations will prevent members from committing crimes, such as theft, violence, murder, and other undesired acts (Hart 91). However, in any other conditions, this system will fail to perform its major functions as it will have the three defects, and it will demand supporting structures and regulations ensure the stable work of a society (Hart 92). These problems are uncertainty, the static nature of all rules, and the inefficiency of the diffuse social pressure needed to maintain the fundamental regulation (Hart 93). For this reason, the primary rules of obligation should be supported by the secondary rules and form a structure sufficient for promoting the further rise of any group.
Primary Rules
In such a way, the understanding of Hart’s theory demands the correct vision of primary and secondary rules and the role they play in any legal system. Thus, the first category forbids certain actions, require particular behaviors, and generate specific duties or obligations (Hart 94. For every member of a society with a set of primary rules, it means that his/her actions and their legal nature are analyzed regarding these concepts (Hart 97). It also requires everyone to behave in a particular way to ensure these rules are not violated and a group remains stable. Therefore, following Hart’s idea, primary rules are a critical aspect of the functioning of any legal system as they create the basis for the future evolution of the law. They outline the demanded code of behavior and frames for human interaction, central to everyday tasks and duties.
Secondary Rules
However, as stated previously, the system consisting of primary rules only will be ineffective because of defects. That is why the secondary rules modifying the framework are required. They can be determined as the regulations introducing procedures on how primary rules can be created, altered, upgraded, and enforced (Hart 95). In other words, the primary aim of secondary rules is to ensure that all members of society understand the nature of existing regulations, they can change over time, and clear criteria are helping to determine whether the rule was violated and whether there is a need for particular punishment. Hart is sure that the remedy for all defects outlined by him is the establishment of additional tools necessary for supporting the work of the existing legal system. These include the rule of recognition, change, and adjudication as the fundamental elements of any law.
Uncertainty is one of the major defects that should be addressed by introducing supplementary regulations. Thus, the rule of recognition is the remedy for eliminating this flaw (Hart 94). It specifies the features of suggested rules and explains why this regulation is viewed as law, and the social pressure that exists (Hart 94). It is possible to agree with Hart’s vision of this secondary rule as the most important one. The poor understanding of the nature of existing limits might result in the lack of attention given to them and their disregard. It is impossible regarding the work of any legal system. For this reason, the rule of recognition plays a critical role in establishing the basis for the successful functioning of current regulations and the determination of their validity. It can also be used to explain the provision of a particular punishment to a person.
The rules of change are another set of regulations viewed by Hart as critical. He explains that the static nature of the framework established by primary rules can be addressed by this type of secondary rule. In general, they allow individuals or a group of individuals to create new primary rules regulating the life and functioning of a community (Hart 95). They can be very simple or complex and are closely related to the rules of recognition as introducing a new regulation demands the correct understanding of its necessity and significance (Hart 96). It is possible to state that Hart’s idea of the rules of change helps to understand the flexibility of law and its ability to adapt to new conditions and demands emerging at different periods of society’s evolution.
Hart also speaks about the rule of adjudication as another strong remedy for improving the functioning of the legal system. It helps individuals to cause social pressure on rule violators by making authoritative determinations of whether a certain primary rule was broken (Hart 97). In such a way, this regulation guarantees that all basic norms of behavior, codes and duties will be performed by individuals; otherwise, specific punishment by the authorities will be provided. In such a way, all these three rules offered by Hart can be viewed as relevant aspects explaining the nature of legal systems. At the same time, Hart emphasizes the importance of the ultimate rule of recognition, asserting the validity of a particular framework or regulation (Hart 108). It is an important idea formulated by Hart as it shows that while laws can be valid because of their nature, the rule of recognition can exist only if courts and other persons act in a consistent way (Hart 108). In such a way, the ultimate rule of recognition helps to determine the validity of particular elements without a system.
Internal Point of View
Describing legal systems, Hart also appeals to the internal point of view. He defines it as the view of individuals who use rules as a certain code for appraising their and others’ behaviors (Hart 102). In primitive societies, most people might live following the rules introduced regarding the internal point of view (Hart 103). They seem the most logical and relevant regulations. It means that there is a shared acceptance of rules necessary for the functioning of the legal system and its ability to ensure the further evolution of society, its stable functioning and relevant punishment of all cases of misbehavior or violations.
Objections
In general, it is possible to state that Hart’s definition of the nature of law and the legal system is relevant and helps to understand how they function. He manages to describe how a community forms specific rules regulating its behavior and what supporting structures and elements are vital for creating a potent framework with the ability to control interrelations within it. However, several objectives might be introduced regarding Hart’s ideas. For instance, Hart states that once any rule or regulation is created, it becomes a part of the legal system with little uncertainty about its correctness or validity (Hart 94). However, in real life, laws are more flexible and might have numerous interpretations, meaning that they might remain abstract or demand additional explanations or cogitations.
For this reason, speaking about the work of the legal system and its rules, it is vital to consider their flexible and changing nature. They cannot be viewed as unchanged and always relevant statements existing over time. However, using Hart’s cogitations, it is possible to address this objection by appealing to the second rule of change. He states that it allows altering the existing code of behavior accepted by society by introducing new rules (Hart 95). It means that if a once established point loses its relevance, it might be modified or replaced by a new one, with is more significant regarding existing conditions and helps society to continue its evolution. For this reason, the flexibility of the legal system is explained by Hart through its ability to be altered using secondary rules and helping it to adapt to new conditions.
Another possible objective of ideas formulated by Hart is that the internal point of view might be different and result in the absence of acceptance by various parties. It means that some individuals belonging to the same community might refuse to follow the existing rules. They might see these regulations as irrelevant, outdated, or limiting their rights for particular actions. Such difference in views results in conflicts and the necessity to devote more attention to specific aspects of the legal system. In such a way, the idea of rules formulated by a group of individuals and accepted by the rest of the community offered by Hart might be contradictory and fail to explain the source and nature of existing law.
However, this objection can be refuted by the idea of the ultimate rule of recognition offered by Hart. He assumed that the right of courts and legal authorities to determine whether a particular action is legal or not comes from accepting the relevance of a certain regulation (Hart 107). It means that the majority of a community should recognize the validity of claims and statements for them to remain topical and be used as the main determinant of action.
Conclusion
Altogether, it is possible to conclude that Hart managed to explain the sources of law and how it functions. Cogitating on the union of secondary and primary rules, he creates the framework for understanding the nature of relations within a society and the factors necessary for establishing an effective and potent legal system sufficient to meet current needs and ensure future evolution. Hart states that obligation to follow a certain code comes from its validity, relevance, and acceptance by community members.
Reference
Hart, H. (1994). The concept of law (2nd ed.). Oxford University Press.