The Concept of Law from a Transnational Perspective by Daniels Detlef Von;Campbell Professor Tom D;

Author:Daniels, Detlef Von;Campbell, Professor Tom D;
Language: eng
Format: epub
Publisher: Taylor & Francis Group
Published: 2016-08-15T00:00:00+00:00

The Union of Primary and Secondary Rules

If secondary rules are not necessary for singling out legal rules from the myriad of possible rules or to attain a “non-defective” or “successful” legal regime at all, then the pressing question is the nature of their role and why Hart assigns such a central place to the union of primary and secondary rules in the concept of a legal system. As the thought experiment did not provide conclusive reasons to consider only regimes with official rules as “real” or “proper” legal systems, one needs to examine Hart’s general characterization of secondary rules in order to determine their role. Indeed, he introduces the notion in two ways. First, he shows this distinction can resolve a number of outstanding problems in John Austin’s theory of law. As Austin’s theory is not at stake here, I will focus on Hart’s second, abstract characterization. He states most generally that primary and secondary rules are of “a different kind,”17 as secondary rules are about primary rules whereas primary rules regulate behavior. In another passage, he holds that primary rules “impose duties” whereas secondary rules “confer powers.”18 He uses the distinction to arrive at a number of legal concepts such as legislation, jurisdiction, validity, and generally, the idea of legal powers.19 It has been frequently noted, however, that Hart’s characterizations are not particularly coherent.20 Secondary rules also impose duties and regulate behavior; only they are the duties and behavior of the officials. Therefore, one might think that the relevant distinction is that secondary rules are directed at the officials,21 whereas primary rules are aimed at the ordinary people.22 However, this leads to the question: of what does the union of primary and secondary rules consist? Another problem Neil McCormick has raised in this regard is that rules directed at officials presuppose the existence of officialdom and hence cannot constitute the idea of officials, or the relevant offices.23

17 CL, 94. 18 CL, 81. 19 CL, 98. 20 Already in one of the first reviews of the book, Jonathan L. Cohen pointed out that the distinction between primary and secondary rules is hardly tenable in analyzing private law. Later, C.F.H. Tapper clearly works out the different senses of the distinction. See Jonathan L. Cohen, “The Concept of Law,” Mind 71 (1962): 395–412, and C.F.H. Tapper, “Powers and Secondary Rules of Change,” in Oxford Essays in Jurisprudence, ed. A.W.B. Simpson (Oxford: Clarendon Press, 1973), 242–77. 21 CL, 41. 22 This is the conclusion of Bayles’s discussion: Michael D. Bayles, Hart’s Legal Philosophy. An Examination (Dordrecht: Kluwer, 1992), 60. 23 MacCormick, H.L.A. Hart, 109.

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