Hart and Positivism
Hart and Positivism
According to Hart law consists of primary and secondary rules. The primary rules are the rules that are “rules of obligation.” (Hart. Pg 204) This means that primary rules are rules that obligate a person to do something or to not do something. For example, the first Amendment, “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceable to assemble, and to petition the Government for a redress of grievances.” (http://www.usconstitution.net/const.html#Am1) The first Amendment is an example of a primary rule because it directly affects the people of the United States of America by allowing them to have the freedom of religion, press and expression. This is an example of obligating a person not to do something, which means that the person is not obligated to have any other religion other than their own, for example.
The second part of law is the secondary rules. Secondary rules only affect primary rules. This means that a secondary rule can help clarify, alter, eliminate, bring into effect, verify or determine whether a primary rule has been broken. For example the only reason we have the first amendment of the United States Constitution is because of Article 5 of the U.S. Constitution which states, The Congress, whenever two thirds of both Houses shall deem it necessary, shall propose Amendments to this Constitution, or, on the Application of the Legislatures of two thirds of the several States, shall call a Convention for proposing Amendments, which, in either Case, shall be valid to all Intents and Purposes, as part of this Constitution, when ratified by the Legislatures of three fourths of the several States, or by Conventions in three fourths thereof, as the one or the other Mode of Ratification may be proposed by the Congress; Provided that no Amendment which may be made prior to the Year One thousand eight hundred and eight shall in any Manner affect the first and fourth Clauses in the Ninth Section of the first Article; and that no State, without its Consent, shall be deprived of its equal Suffrage in the Senate. (http://www.usconstitution.net/xconst_A5.html)
Article 5 of the constitution is a perfect example of a secondary rule (in this case a “rule of change”) because it allows one to see exactly how a secondary rule affects a primary rule. With Article 5 of the Constitution, the United States is capable of applying amendments to the constitution (or otherwise known “the Law of the Land”) of the United States. Article 5 of the constitution is an example of a secondary rule classified as a “rule of change” as stated by Hart. A “rule of change” allows an office or officials to be able to implement new primary rules so as to be able to adapt to the changing of times and the constant creation of new situations. The “rule of change” simply allows the system to be able to adapt to their society and not allow the primary rules to go static.
To become a law there are two parts that need to happen, according to Hart. First there needs to be the initiation of a primary rule statute by a delegated official or office in power. Once the primary rule is made a secondary rule, the rule of recognition, is enacted. The rule of recognition simply allows private persons and officials the ability to be able to identify the primary rules of obligation. This secondary rule conclusively identifies the primary rules of obligation so as not to be confused as to what are the obligations the primary rule bestows.
To have primary rules of obligation and secondary rules of recognition, there needs to be an office or official to be able to adjudicate these rules. To be able to adjudicate these rules there would need to be an additional secondary rule of adjudication. This would allow a judge to be able to determine whether or not the primary rule has been broken. Within the rule of adjudication there would also be rules on the roles of the judge as well as identifying who are to be the judges. With the rule of adjudication there is no question of whether or not a law has been broken and this solidifies the primary rule of obligation.
With the ideas of Hart this shows that laws and morality can be separable, but they are not necessarily separated. It is possible to have a separation between low and morality by having some sort of primary rule that would state “no one rule will introduce the morals or characters of others into the legal system.” It is also possible though for an official delegate to implement a primary rule into the legal system and have it backed by a secondary rule of recognition. Having the secondary rule of recognition would potentially make the morality based primary law a valid legal law. In Hart’s idea morality and law are “separable”, in the meaning that they are capable of being separated, but they are in no way impossible to be able to be combined in law. Without there being a way to identify morality and making it a subordinate to statute, there can’t be a definite separation with Harts theory.
1. Reading in the Philosophy of Law (pg 202-207)
2. www.usconstitution.net (1st Amendment, Article 5 of the Constitution)
Subject: United States Constitution,
University/College: University of California
Type of paper: Thesis/Dissertation Chapter
Date: 12 January 2017
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