At first impression Harts conception of law, as a symbiotic relationship between primary and secondary rules, and more importantly the internal aspect seems valid. However in his attempts to define "What is Law" he has wandered into the social elements of law and how it relates to the group living under a legal order. Hart's interpretation of law falls into the pitfalls it was meant to avoid, mainly that law is a set of rules, claiming the union of primary and secondary rules distinguishes it from primitive societies who are governed under the rule of custom and tradition.
Defining the internal aspect is important before continuing the discussion for it is an integral part of Hart's conception of law. Harts concept of the internal aspect distinguishes between social rules and social habits. The latter is merely convergent behaviour of people within a social group, for instance, people waking up in the morning and reading the newspaper while eating breakfast, or people going to the cinema on a Saturday night. A crucial distinguishing feature from a social habit and a social rule is that habits lack criticism from others in a group when the convergent behaviour is deviated from. Deviation from the convergent behaviour makes criticism and the rule legitimate, and often is manifested through normative language such as "you ought to", or "you should do", a certain type of behaviour. There is no normative consideration when one speaks of going to the cinema on Saturday or reading the newspaper while eating breakfast, this is what distinguishes a rule from a habit. It must also be noted, that for Hart, the general rule can go on unnoticed by the group. It is only until a minority deviates from the standard behaviour that the group recognizes it as a rule to be obeyed and conformed to. Thus making all criticism towards the deviants justified and legitimate because it is the criticism that makes the rules binding and individuals have an obligation to follow the recognized standard of general behaviour.
The internal aspect and therefore rules, is an important constituent for Harts conception of law, because essentially law is the union of primary and secondary rules. A primary rule imposes duties and prescribes how one must act by way of recognizing a general standard mode of behaviour. The secondary rules consist of three important characteristics, which can be characterized as sub rules, which give the concept of rules as law and obligations, but more importantly, laws as a system of rules. The three sub rules within secondary rules act as power-conferring rules, to individuals or legal organs. First is the rule of recognition, which helps to determine whether a rule is indeed a rule, this is determined by the influx of criticism for deviation of the rule and the existence of social pressures to conform. The second, denoted as the rule of change, which allows for the creation of new primary rules or the change and modifications of old rules for the group to live by, these rules are also subject to procedural standards. The final characteristic is the rule of adjudication that determines whether or not a primary rule has been violated and prescribes the procedure the courts must follow to apply sanctions. There is also a strong connection with the rule of adjudication and the rule of recognition "because, if the courts are empowered to make authoritative determinations of the fact that a rule has been broken, these cannot avoid being taken as authoritative determinations of what the rules are."1
Indeed, the mosaic of the internal aspect, a primary and secondary rule as law is very attractive, for Hart is able to explain, where Austin has failed, power-conferring laws without a coercive order where a threatened "evil" is present. Primary rules are laws, because they are general and span over the territory in which the sovereign has authority, and secondary rules are a means to enforce and amend the laws. The power conferred to the individual is not a duty, but merely powered conferred to identify rules and the breach of obligations, this is justified by inextricably linking ...
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Indeed, the mosaic of the internal aspect, a primary and secondary rule as law is very attractive, for Hart is able to explain, where Austin has failed, power-conferring laws without a coercive order where a threatened "evil" is present. Primary rules are laws, because they are general and span over the territory in which the sovereign has authority, and secondary rules are a means to enforce and amend the laws. The power conferred to the individual is not a duty, but merely powered conferred to identify rules and the breach of obligations, this is justified by inextricably linking the rule of recognition and the rule of adjudication. The existence of secondary rules, giving rules amendment ability and the creation of new rules, has an exacted resemblance of a legal system, yet Hart's analysis is open to scrutiny.
One element of Hart's analysis that can be objected to is his assumption on why individuals obey law. For Hart, people obey rules hence laws, because of the internal aspect. Individuals obey, not habitually or because of some sense of reason, but because others are doing so. It is enough that everyone in the social group follows these general standards and abides by them that others should too conform to it, lest they be concerned with the social pressures that are merely criticisms to conform to the standard. The internal aspect also makes an assumption, a considerable assumption at that, of the society in question. A society where the internal aspect is at large is one that is duly homogenous. The individuals in this society all think in a similar fashion; they share the same morals, ethics and perspectives and because of this they know, rather instinctually know, when a rule is a rule and should be obeyed. In this light, application of the internal aspect to modern contemporary society fails, when one observes the vast amounts of such social deviates from a stereotypically picturesque society such as drug addicts, racial and cultural diversity, prostitution, homosexuals, people who advocate and participate in various subcultures and other questionable acts that deviate from the norm and still are or at some point were met with criticism. The mere existence of these groups illustrates the failure of mental conformity that is the pillar of Hart's conception of obedience to rules and hence laws. It fails to explain the people's dissatisfaction with existing laws and those who break the law while feeling completely justified for deviating. Furthermore it cannot explain why certain countries do not accept the Declaration of Universal Human Rights. In these cases, Hart may argue that different social groups, only abide by and are concerned with their own rules and not external ones, they only have an internal view, the only view that matters. Those who are deviants do not share the internal aspect and must be conditioned to do so, or to put it blatantly, must be conditioned to conform thus making it a homogenous social group. This raises serious implications for it may advocate religious, cultural and immigration intolerance resulting into mass assimilation of thought and superiority complexes of the social group in question.
Hart's secondary rules even fail to explain power-conferring laws in a constitutional context, where there is no breach of obligation. Section 93 of the Canadian Charter confers power of authority over education to provinces, exonerating any federal responsibility in regard to education. Indeed, the very reason that such a law exists may have been that the provinces wanted power over education, but this is beside the point because even for Hart "we do not have to trace [law] back to the enactment."2 The task is to merely show that the power-conferring authority of education to provincial jurisdiction was done through the mechanisms of the rule of recognition and the rule of adjudication, thus making it legitimate. Yet it is hard to see or even imagine how the rule of adjudication can be applicable here because power-conferring law for Hart deals with giving courts and other legal organs the authority to determine whether a primary rule has been broken, to change primary rules, and to oversee the procedure of the application of sanctions. Which primary rule was broken that would warrant provincial jurisdiction over education? The rule of recognition can be somewhat applicable in this instance, viewing the power-conferring authority as a primary rule, but does not tie in with any of the secondary rules, for in this instance power-conferring authority deals mainly with the provincial right to education, and not the procedure of applying sanctions or the breach of obligations. In regards to adjudication in a contemporary sense, who is to decide how public funds are to be allocated in terms of education or health care? Lobbyist or the population? What law must be broken for this allocation and adjudication appointment to occur? Hart's analysis does not have the answers.
Another element of the internal aspect is the population's oblivious nature of the rules in question. They can go on unnoticed; the population doesn't "know that the behaviour in question is general"3. This supposes that the population knows nothing or very little of the laws or never made the attempt to be aware of the legal system that they live in until a rule has been broken. They know little in regards to why the rule itself is legitimate, in an external sense, or why it is unacceptable to deviate from it, they merely passively comply with it and only truly consciously know when a rule is rule when a minority deviates from it. It seems they know nothing of their rights, freedom or civic duty towards the state. How could the courts then defend rights and freedoms if they have not yet encountered instances of cases where rights and freedoms were violated? Could they even be conscious of such concepts if they go on unnoticed or presupposed? In regards to obligation, the individual is obligated to follow rules because of the legitimacy of the rule, and because everyone else is doing so. The obligation of the individual is to uphold tradition of the group while sacrificing personal interests. The relation to subject and sovereign is also explained as an obligation because it just seems right to do so and because again, it is how it has been done and how it has been done should be upheld. In Hart's conception it is that enough the law is practiced and not consciously realized. Hart's view of law as a union of primary and secondary rules increasingly resembles a society based on custom and tradition rather than one of legal order.
The purpose of a centralized authority seems pointless if social pressures to conform and an ingrained sense of the norm binds the population to be obligated to follow these rules and can guarantee obedience. Primitive societies, ones that are governed strictly by custom and tradition, lack the independent legal organs, such as courts and enforcement that modern societies contain but indeed have ways to enforce such rules and customs and Hart's analysis of law looks much like this. In a primitive society, characterized as a band it is "[where] there is no coercive power (i.e., no means of physical punishment), all decisions must ultimately reflect a consensus."4 Hart's society indeed does possess sanctions, and depending upon the severity of the crime may have physical punishment, but obedience through the internal aspect looks much like this. For it is the community of those with the internal aspect that apply pressure to the deviants and decide the correct behaviour for the individual; the end result looks as though "decisions reflect...a social consensus and in the end normally obtain the compliance of everyone."5 While criticism and social pressure is sufficient for obedience there is no requisite for who can make such criticisms for deviation. It is analogous to a tribe where "dispersion of power and authority throughout the community"6 makes it possible for anyone within the social group to make criticisms and suggest corrective behaviour. Conformity and hence obedience in Hart's society is largely due to the internal aspect, for it is the internal standards in the society where judgment of the law is perceived. It is much like tribes "because individuals of such a society cannot conceive of life without or outside the community, they will be unlikely to refuse to accept its way."7 Even primitive societies have the capacity to change their customs or rules based upon changing circumstances, or even for practical purposes and punish those who deviate from rules though they are not institutionalized because of the size of their population. The numerous treaties between white settlers and Aboriginals in Canadian history, demarcating each people's territory, is evidence of changes occurring in primitive societies. Whether or not white settlers honoured these agreements, due to exceedingly changing nature is irrelevant, but it shows that Aboriginals were able to change the nature of their nomadic culture hence customs and rules but at a great expense. The inclusion of the secondary rule, attempts to make modern societies distinct from primitive ones, merely institutionalizing and making the process of change much more efficient and some-what conscious.
Harts idea of the internal aspect, is an explanation of why people obey and follow laws, but the implications of this theory is that the individuals under sovereign rule are completely oblivious and unthinking to law and the creation of laws is largely reactionary, where there are no presupposed principles of the social group in question. The group may indeed be instinctually aware of it, as the rules are unstated, but this implies mass homogeneity. The notion that the internal aspect is the main and only reason for people's compliance and obedient nature to law is insulting to the population's intelligence and the diversity of peoples, morals, ethics and thought. It supposes that citizens or subjects are drones trapped in a cage of law not knowing its boundaries, that citizens are good sheep that merely follow wherever the sheppard leads. It is largely an anthropological view, where "the fundamental unit of analysis is the social whole, the society or community as an organic body, rather than its parts,"8 and strips the importance of sanctions and coercion, an undeniable aspect of law and reduces it to mere criticisms. In his attempts to distinguish primitive societies governed by custom and tradition, which Hart calls primary rules, he has done little to distinguish modern contemporary society from primitive ones, being the purpose in answering the question "What is Law". Hart should be commended for his efforts, as his conception attempted to encompass so many "species" of law, but his analysis fails when viewed in a contemporary context and compared with past primitive societies.
H.L.A. Hart. The Concept of Law (New York: Oxford University Press 1997) 56.
2 Hart, 70.
3 Hart, 56.
4 Larry Johnston. Politics: An Introduction To The Modern Democratic State (Toronto: Broadview Press 2001) 59
5 Johnston, 56
6 Johnston, 59
7 Johnston, 59
8 Johnston, 52
Rules as Customs, Not Law Richard Kim
