HLA Hart's concept of law views law as a social phenomenon that can only be understood by examining the social practices of a community. He distinguishes between primary rules that impose obligations and secondary rules that confer powers like adjudication and legislation. For primary rules to become a legal system, they must be unified with secondary rules. Hart's key insight is that for a rule to be a legal rule, it must have an "internal aspect" where members of society view it as a standard to follow and use normative language to criticize deviations from it. This addresses shortcomings in Austin's concept of law based merely on habits of obedience.

1. HLA HART'S CONCEPT OF LAW1

2. HART'S CONCEPT OF LAW
Herbert Lionel Adolphus Hart (H.L.A.Hart: 1907-92)
conceives law as a social phenomenon: it can only be
understood and explained by reference to the actual
social practices of a community. Why? It is a fact that in
order to a human society to survive as a collectivity or
group, certain rules must exist. Otherwise we are all
members "of a suicide club". They are result of our
human limitations like Human vulnerability, approximate
equality, limited altruism, limited resources and limited
understanding and strength of will. Hence there is a
necessity for rules to protect persons, property and which
ensure that promises are kept.
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3. Hart - legal rules "the key to the science of jurisprudence" is to be
found in the union of primary and secondary rules. The rules of the
first impose duties or obligation and the rules of the second type
confer power either private (eg. power to make contract or create or
vary legal relations between people) or public (power of
adjudication or legislation).
 Primary rules: Those rules that impose obligations or duties. They
directly govern our behaviour by telling us what we ought and ought
not to do. Every society, even the most primitive, displays obligation
rules. Function: to preserve a social order.
 Secondary rule: Small social groups bonded by kinship and shared
beliefs living in a stable environment may survive by primary rules
alone. But as society gets larger and more complex, primary rules
prove insufficient and defective. Hence, the serious need for a
different type of rules are required; these are 'secondary rules of
obligation'. 3

4. Rules of duty or obligation are distinguishable from other rules in that they
are supported by great social pressure because they are felt to be necessary
to maintain society. How then do they acquire the character of law?
Regulation of beheaviour is by means of what called primary rules. Society
which possess only these are in a pre-legal or primitive condition and
suffers from 3 drawbacks which are:-
1. One is uncertainty as to what these rules are and their scope, but this
can be met by having a secondary rule of recognition by which to
identify primary rule.
2. Primary rules are static but this can be met by having secondary rules
providing power to change primary rules i.e. rules of change.
3. Thirdly the maintenance of primary rule is inefficient because of the
absence of authoritative arbiters of disputes but this can be met by
having rules of adjudication.
 This primary rules acquire the character of a legal system Through their
union with secondary rules i.e. the union of rules creating duties and rules
creating power to create, extinguish, modify and adjudge as well as rule of
recognition with which to identify primary rules.
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5. Distinction between duty imposing & power confering rules:
Hart concept is based on the distinction between rules creating duties and
rules creating powers; since a legal system is constituted by their union; but
it is questionable what the sharp distinction can be drawn because
sometime the same rule may create a power plus a duty to excercise it or a
power plus a duty not to excercise it.
 Prof. Fuller instances a situation where the same rule may confer power and
duty or power or duty according to the circumstances. A trust instrument
may give the benificiary power to transfer the estate to himself on a certain
condition; so he argue that which is the rules creating the power and which
rule creating the duty. The distinction lies not in the rule but in the
circumstances. There may even be rules about secondary rule which may be
power of duty conferring, e.g. a rule requiring a government to change a law
on a referrandem or the duty of a judge to hear the case.
 The rules of adjudication besides identifying the individuals who are to
adjudicate such rules also define the procedures to be followed. Further
rules imposing duty on judges to adjudicate, they do not impose duty but
confer judicial powers and a special status on judicial declaration about the
breach of obligation. Rules which confers jurisdiction will also be a rule of
recognition identifying to primary rules through the judgements of the
courts and these judgements will become a 'source of law'
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6. Austin's habit of obedience & Hart’s Internal Aspect:
Austin fails to explain succession to sovereignty because he fails to take
account of important diffrences between 'habit' and 'rule'. Habits only
require common beheaviour, which is not enough for a rule and which
may not have sanction over it. A rule has an ' internal aspect' i.e people
use it as a standard by which judge and condemn deviations; habits do
not function in this way. HART also uses rule to distinguish between '
being obiliged' as like gunman in Austin theory and ' having an
obligation'. Austin's command-duty-sanction thesis fails to explain why, if
a gunman threatns X with your money or your life, X may be obiliged to
hand over his purse, but has no obligation to do so. The reason is that
one has an obligation only by virtue of a rule.
The internal aspect of law: What distinguishes ' legal rules' from
customs, habits, conventions, ets ( but not from morality) is that they
involve some distinctive attitude or subjective response. This involves
more than just ' the feeling of being bound' or of ' having an obligation':
what is necessary is that there should be a critical reflective attitude to
certain patterns of beheaviour as a common standard. This critical
reflective attitude expresses itself in the use of normative language eg.
'ought, 'should', wrong' etc. 6

7. Ambiguity in Rule of Recognigiton & Problem in “Open Texture”
A formal legal system is marked by its ability to identify these primary rules through
secondary rules. Secondary rules- These are the administrative rules that govern the
creation of Primary rules. There are three secondary rules: The first is the rule of
recognition which describes the proper source of laws in any given complex society.
The second and third secondary rules are closely related to the rule of recognition,
and many argue they are simply sub-sections of recognition.
 There is another ambiguity that appears here. How is the rules of recognition itself
recognized? All Primary rules flow from the rules of recognition- so the rules of
recognition cannot be a primary rules itself. The rules of recognition must first be
recognized before it can generate primary rules- meaning the rules of recognition is
in fact itself an natural rules of obligation. To remain a member of a particular
complex society, we must accept its rule of recognition. Hart is left trapped in
circular reasoning.
 Hart runs into another problem. A formal legal system cannot rely on rules alone;
situations will continuously arise in courts in which the Rules of recognition has not
generated a primary rules , or in the validity of a primary rule is being challenged.
These are situations in which rules simply run out. Hart describes this as "open
texture" and argues that judges are left to their own discretion in these situations.
Hart almost becomes a Holmesian realist here. Hart's problem is that he cannot
describe how and why a judge might handle an open texture case in a particular way.7

8. References:
1. Hart, H.L.A., (2nd ed,2005), The concept of Law, Oxford: Clarendon Press
2. Freeman M.D.A.,( 6th ed, 1996), Lloyd's Introduction of Jurisprudence,
Sweet and Maxwell Ltd., London
3. McCoubrey Hilare & Nigel D. White (1999), Text Book on Jurisprudence,
Blackstone Press Limited, London
4. Morrison, Wayne,( Reprint 1997), Jurisprudence: from Greeks to
Post‐modernism, Lawman (India) Pvt. Ltd., New Delhi, India
5. Friedmann, W.,( 5th ed, Reprint 2011), Legal Theory, Sweet and Maxwell Ltd.,
London
6. Dias, R.W.M.., (5th ed, Reprint 1994) Jurisprudence, University of Cambridge
(Aidtya Books (P) Ltd, New delhi
7. http://mikewc.blogspot.com/2005/05/law-harts-rule-theory.html (access date 26
Jan 2016)
8. http://www.slideshare.net/izzahzahin/jurisprudenceharts-modified-positism;
(access date 26 Jan 2016)
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