Hart's concept of law distinguishes between primary and secondary rules. Primary rules impose obligations on behavior, while secondary rules establish ways to change, enforce, and adjudicate primary rules. For Hart, a legal system requires both types of rules. He criticizes Austin's view that laws are commands, arguing laws confer powers and privileges in addition to imposing duties. Hart also distinguishes rules from habits, and obligations from coercion. While providing insights, Hart's view has been criticized for underestimating the role of courts and overstating compliance due to internal obligations alone.

1. Introduction to Jurisprudence-I
H.L.A. Hart’s The Concept of Law

2. Introduction
• Herbert Lionel Adolphus Hart (1907-92) was a British philosopher who was
professor of jurisprudence at the University of Oxford.
• His most important writings included Causation in the Law (1959), The Concept of
Law (1961), Law, Liberty and Morality (1963), Of Laws in General (1970),
and Essays on Bentham (1982).
• He was positivist.
• Positivism applied on human condition. Following characteristics of human
conditions require positive law.
• A) Human Vulnerability: Eachone of us can be subjected to undesired physical
violence, therefore rules are required to human vulnerability such as laws against
murder, rape, assault etc.
• B) Approximate equality: making mutual forbearance and compromise, therefore
rules required to accommodate approximate equality such as laws relating to
contract, traffic, commerce, banking etc.

3. Introduction
• Limited Altruism: People do not work unselfishly and that people have tendencies
of aggression which may require control, therefore rules are required to address
corruption, embezzlement, monopolies, black marketing etc.
• Limited resources: we will need food, shelter, clothing etc all which are in limited
supply, therefore rules are required to take account of limited resources such as
laws relating to theft, property, wills etc.
• Limited understanding and strength of will: our understanding of long term
interest cannot be taken for granted, thus we need to make rules which provide
sanctions which address long term interests, such as environmental protection,
abortion and family planning, pollution control, compulsory education etc.
• Therefore there is need in society to protect persons, property and promises.

4. Hart Distinguishes law and rules of law.
• Laws are rules that may forbid individuals to perform various kinds of
actions or that may impose various obligations on individuals. Laws may
require individuals to undergo punishment for injuring other individuals.
They may also specify how contracts are to be arranged and how official
documents are to be created.
• They may also specify how legislatures are to be assembled and how courts
are to function. They may specify how new laws are to be enacted and how
old laws are to be changed. They may exert coercive power over individuals
by imposing penalties on those individuals who do not comply with various
kinds of duties or obligations. However, not all laws may be regarded as
coercive orders, because some laws may confer powers or privileges on
individuals without imposing duties or obligations on them.

5. Primary and Secondary rules
• He suggested a dual system of rules primary and secondary rules.
• Primary Rules: These rules lay down standards of behaviour and rules of obligation and
they impose duties on individuals and they also directly govern our behavior by telling us
what we ought and ought not to do. Such as Contract Act and Pakistan Penal Code etc.
• Secondary rules: These rules are specific ways in which primary rules can be ascertained,
introduced, changed or enforced e.g. constitutional laws, procedural laws etc.
• For larger society primary rules are insufficient and defective and the society which
possesses only primary rules is pre-legal and suffers from three drawbacks:
• i) Uncertainty: as to what these rules are and their scope but this can be met by having
secondary rule of recognition by which to identify primary rules.
• ii) Primary rules are static but this can be met by having secondary rules providing power
to change primary rules.
• iii) Thirdly maintenance of primary rule is insufficient because of the absence of
authoritative arbiters of dispute but this can be met by having rules of adjudication.

6. Primary and Secondary rules
• In order for a system of primary rules to function effectively,
"secondary rules" may also be necessary in order to provide an
authoritative statement of all the primary rules. Secondary rules may
be necessary in order to allow legislators to make changes in the
primary rules if the primary rules are found to be defective or
inadequate. Secondary rules may also be necessary in order to enable
courts to resolve disputes over the interpretation and application of
the primary rules. The secondary rules of a legal system may thus
include 1) rules of recognition, 2) rules of change, and 3) rules of
adjudication.

7. Primary and Secondary rules
• Primary rules of obligation are not in themselves sufficient to establish a
system of laws that can be formally recognized, changed, or adjudicated,
says Hart. Primary rules must be combined with secondary rules in order to
advance from the pre-legal to the legal stage of determination. A legal
system may thus be established by a union of primary and secondary rules.
• There are two minimum requirements which must be satisfied in order for
a legal system to exist: 1) private citizens must generally obey the primary
rules of obligation, and 2) public officials must accept the secondary rules
of recognition, change, and adjudication as standards of official conduct. If
both of these requirements are not satisfied, then primary rules may only
be sufficient to establish a pre-legal form of government.

8. Criticism on Austin commands model
• Hart criticizes the concept of law that is formulated by John Austin in The
Province of Jurisprudence Determined (1832) and that proposes that all laws are
commands of a legally unlimited sovereign. Austin claims that all laws are
coercive orders that impose duties or obligations on individuals. Hart says,
however, that laws may differ from the commands of a sovereign, because they
may apply to those individuals who enact them and not merely to other
individuals. Laws may also differ from coercive orders in that they may not
necessarily impose duties or obligations but may instead confer powers or
privileges. Examples, wills, contracts, power of legislature etc.
• Hart argues that the foundations of a legal system do not consist, as Austin
claims, of habits of obedience to a legally unlimited sovereign, but instead consist
of adherence to, or acceptance of, an ultimate rule of recognition by which the
validity of any primary or secondary rule may be evaluated. If a primary or
secondary rule satisfies the criteria which are provided by the ultimate rule of
recognition, then that rule is legally valid.

9. Concept of Obligations
• Laws are obeyed because people are under an obligation to follow it.
• Laws are concerned with obligation rather than coercion.
• A legal rule is one which prescribes a code of conduct which is observed with the
feeling that such conduct is obligatory.
• A person who has to act according to rule will also expect others to act according
to the rules. Eg. In Pakistan we drive right side of the road, now a person who
observes(follows) this rule also expects that others will do the same.
• He also rejects the contention that laws are followed(obeyed) due to habitual
behavior. He disagrees with the Scandinavian realists contention that law is not
rules at all but a form of habitual behavior leading man to compliance.
• According to Hart, compliance to law is due to man’s inner attitude of having a
duty to obey the law.

10. Distinguishes habit from obligation/rule
• Habits only requires common behavior which is not enough for a rule
and which may not have sanction over it.
• He asks us to contrast the case of a man who habitually cleans his car
on Sunday morning and that of the driver who always informs to the
traffic law requiring him to stop at a red signal. Whereas in the first
case it is a habit but these is no obligation to wash the car; in the
second case the stopping at the red light signifies an obligation/duty
on part of the driver to do so and is not a mere habit.

11. Distinguishes between being
obliged(compelled) and under an obligation
• An example of being obliged or compelled is a gun-man, ordering
money to be handed over; whereas being under an obligation entails
the existence of inner acceptance and the existence of social, one has
obligation only by virtue of a rule and there is no rule to give money
to a gun-man.

12. International law
• International law is described by Hart as problematic, because it may
not have all of the elements of a fully-developed legal system.
International law may in some cases lack secondary rules of
recognition, change, and adjudication. International legislatures may
not always have the power to enforce sanctions against nations who
disobey international law. International courts may not always have
jurisdiction over legal disputes between nations. International law
may be disregarded by some nations who may not face any significant
pressure to comply. Nations who comply with international law must
still be able to exercise their sovereignty.

13. Vagueness of law
• In any legal system, there may be cases in which existing laws are
vague or indeterminate and that judicial discretion may be necessary
in order to clarify existing laws in these cases. Hart also argues that by
clarifying vague or indeterminate laws, judges may actually make new
laws.

14. Reasons due to which people obey the law
• Non-optional character of law
• An inner obligation to obey
• General application of law
• Compulsory membership of the State
• Laws are obeyed because they are pre-declared.

15. Merits of Hart’s concept of law
• Hart conception of law as system of rules is a brilliant notion, which
was ignored by jurists.
• By rejecting the idea of command, and by substituting it with the idea
of obligation, one is able to understand as to why a statute applies to
its framers.
• Hart has also very rightly distinguished between rules of law and
other types of rules (eg. Rules of clubs, etiquette).
• The greatest contribution of hart’s theory is that of internal
acceptance of legal rights that result in external observance.

16. Objection/Criticism against Hart’s concept of
law
• Dias has pointed out that Hart’s theory ignores the role played by courts in
law-making.
• Hart contends that a person who has to act according to a rule will also
expect others to act accordingly to those rules; and that the others will act
accordingly. This propositions seems to be very idealistic assumption. One
does well to remember Jeremy Taylor’s warning that a herd of wolves is
quieter and more at one than so many men, unless they all had one reason
in them any power over them.
• In a similar vein; hart contends that laws are obeyed not due to coercive
sanctions or fear but due to self-imposed code of conduct. This notion
though true to some extent (especially in well developed societies) is not
universally true.