Tuesday, 15 February 2022

Relevance of Hart’s theory in Respect of Law

 Relevance of Hart’s theory in Respect of Law

By: Anjali Tiwari

H.L.A. Hart went on to revise Austin and Kelsen's idea. In his book "The Concept of Law," he defined the legal system as thus". A legal system has a social aspect since, first and foremost, it governs a member of society's behaviour and, second, it evolved from human social behaviour." The second reason in his formulation implies that in a legal system, non-legal principles, such as morals, customary practices, ethics, and values, exist alongside legal regulations. "Whenever a law exists, human behaviour is determined in a non-optional or crucial way." As a result, the core of the regulation is the concept of obligation. The content of morality was ignored by Austin, but Heart norms are drawn from social behaviours. Professor Hart emphasizes the distinction between source and interaction between law and morality. Prof. Hart accepted the content of several other aspects in law. He accepted the relationship between law and morality, which Kelson seeks to retain the Purity of law. 

H.L.A. Hart: H.L.A. Hart was a professor of jurisprudence at the University of Oxford and a British philosopher. Causation in the Law (1959, with A.M. Houore), The Concept of Law (1961), Law, Liberty, and Morality (1963), Of Laws in General (1970), and Essays on Bentham were among his most important works (1982). The notion of law is an examination of the relationship between law, coercion, and morality, with the goal of determining whether all laws should be viewed as coercive orders or moral precepts.

Prof. Hart Concept of Law: 

Nature of legal system: Prof. H.L.A. Hart examines the concept of a social rule in his book The Concept of Law. He divides habitual behaviour from rule-governed behaviour, as well as legal norms from standards and threats-backed directives. He also compares legal and moral standards in an interesting way. By contrasting rule-following behaviour with habitual behaviour, one important aspect of social rules can be shown. These sorts of behaviour appear to be indistinguishable to an "external" observer, as each looks to be regular and uniform.

Kinds of rules: Norms of Obligation, according to Hart, differ from other rules in that they are backed up by a lot of societal pressure because they are thought to be necessary to keep society running. Our conscience also imposes a responsibility on us.

He then went on to discuss two types of rules:

1) Primary rules 

Primary Rules are those that impose a 'obligation' on a member of society, such as criminal laws, tort laws, and so on. The primary rules are those that tell people what to do and what not to do. 



The primary rules are those that impose a responsibility. They put certain responsibilities on citizens of the state, such as acting in a certain way or facing legal consequences. Primary rules are referred to as "fundamental" rules by Hart. They inform citizens about what they are allowed to do and what they are not allowed to do under the law. They assign responsibilities. These are regulations that pertain to physical things.

2) Secondary rules

Secondary rules are those that allow someone to introduce or change primary rules by doing specified activities. They grant persons (private individuals or government agencies) the authority to enact or change the first type of rule. Secondary rules do not impose any obligations. It's what Hart refers to as "power-conferring rules."

Secondary rules confirm 'powers' such as contract, marriage, will, and Delegated Legislation — the power to enact legislation. Schedule VII of the Indian Constitution lists three lists: State, Centre, and Concurrent List, each of which grants respective organs the right to make legislation. These fundamental and secondary rules are intertwined. There is a precise link between these regulations, which forms a legal system and legal order in a systematic manner.

Secondary rules are further classified into three categories, as follows:

1) Rule of Adjudication

It primarily represents those provisions that give the Supreme Court direct authority to decide the case, such as Article 32, which gives the Supreme Court the right to issue prerogative writs; and Articles 131, 132, 134, and 133, which give the Supreme Court original and appellate jurisdiction. Tribunals are empowered to resolve disputes under Articles 323A and 323 B. All of the Constitution's articles delegate authority. They allow a court to make a decision in a specific case.

2) Rule of Change

When a competent legislative body derives its capacity to make legislation, it should also have the competence to amend the law. This power is required to influence any form of notification, for example, Article 368 grants Parliament the authority to modify the Constitution and its procedures. As a result, the ability to change the Constitution is granted. This power includes the ability to abolish laws and eliminate obstacles. It applies equally to delegated legislation.

3) Rule of Recognition

This is the most important and significant principle of secondary rules. That rule is the one that recognizes other rules. The rule of recognition is a criterion for determining whether or not a legal system exists and is valid.


According to Hart, the most important rule is recognition. The rule of recognition explains how to identify a statute. In the modern system, with many sources of law such as a written constitution, legislative enactments, and judicial precedents, the rules of recognition can be quite complicated, necessitating a hierarchy where certain types of norms dominate others. This, according to Hart, is the antidote to bewilderment.

Criticism by professor Dwarkin:

A legal system, according to Prof. Hart, is a set of rules. Is a legal system only a system of rules? On this point, Prof. Ronald Dwarkin chastised Prof. Heart. Dwarkin pointed out that the legal system is made up of more than just laws; it also has principles. As a result, referring to the legal system as a set of rules is incorrect. The Principle of Natural Justice, which is detailed in Maneka Gandhi vs. Union of India, is an example of when principles are more essential than rules. The principle of natural justice is positively incorporated by the judiciary. As a result, what Dwarkin says is likewise significant. When rules and principles clash, the principle takes precedence, and the overriding effect takes precedence.

"If it is found that the law passed by Parliament is contradictory to certain moral principles, such law could be null and void," Justice Coke argued in Bohman's Case (1610). Although the hart failed to establish a true character of law, his contribution is notable as a bridge-builder from Natural Law to Positivism via the Semi-Socialistic School of Law. Prof. Hart was a proponent of democratic socialism and other left-wing causes to the then-dominant political centre, and he pushed for gay rights long before it was commonplace.








No comments:

Post a Comment

Concept of constitutionalism

  Concept of constitutionalism Who Started Constitutionalism? John Locke - The English Bill of Rights is a foundational constitutional docum...