Hart replaced the images of power and violence in jurisprudential imagination by conceiving law as a system of rules upon rules of social practices informed by their own criterion of validity and normative obligation. Before the advent of modern period legal theory was basically dominated by the natural law ideology which was the touchstone for testing the State law. In the modern period, Hobbes for the first time divorced positive law from natural law and made the State law independent of any external criteria. However, Hobbes did not fulfil the task of positivism fully as he did not distinguish between the actual law (“is law”) and the ideal law (“ought law”). His State-made law was not only an existing law but also an “ought” law.
According to Austin, a legal system exists if
For Austin, legal system was set of all the laws enacted directly or indirectly by one sovereign. His criterion for membership of a law in a system is that a law belongs to a system if and only if the sovereign who enacted all other laws of that system enacted it.
A law containing an imperative part only is not an independent law at all, unless there is a corresponding punitive law. A theory of legal system is based on the principle of independence if according to it there is no logical necessity for a legal system to have an internal structure. The demand of personal obedience in Austin’s theory means that the span of the life of the legal system determines the period of existence of the laws of the system and hence also of the legal system itself. There is not a moment at which a legal system exists but has no laws valid at that moment. Kelsen’s theory improved upon Austin’s theory. In his theory, laws derived their validity not from the sovereign but from grundnorm. Reflecting the social and political conditions of his time, Hart’s concept of law is based on general social acceptance of law or legal system”
Hart’s Perception towards Law
Although Hart did not go to the extent of Duguit in contending that laws derive their validity from social acceptance and he made the rule of recognition
A central part of Herbert Hart’s theory on legal positivism, in any legal system, the rule of recognition is a master meta-rule underlying any legal system that defines the common identifying test for legal validity (or “what counts as law”) within that system. …to say that a given rule is valid is to recognize it as passing all the tests provided by the rule of recognition and so as a rule of the system. In Hart’s view, the rule of recognition arises out of a convention among officials whereby they accept the rule’s criteria as standards that empower and govern their actions as officials.[1] The rule is cognizable from the social practices of officials acknowledging the rule as a legitimate standard of behavior, exerting social pressure on one another to conform to it, and generally satisfying the rule’s requirements. To this end, as explained by Hart, the rule has three functions:
To establish a test for valid law in the applicable legal system,
To confer validity to everything else in the applicable legal system, and
To unify the laws in the applicable legal system.
According to Hart, any rule that complies with the rule of recognition is a valid legal rule. For example, if the rule of recognition were “what the Queen says is law”, then any rule the Queen spoke would be a valid legal rule.
Although Hart was aware of the role of coercion and conflict in the universe of law but he tried to downplay the role of command and coercion and violence by conceiving law as a system of rules upon rules of social practices informed by their own criterion of validity and normative obligations. “Hart spoke of the shared acceptance of rules. As stated earlier, for Hart legal system is a combination of PRIMARY AND SECONDARY RULES.
Primary rules are rules of obligation while secondary rules are parasitic upon primary rules and are rules about primary rules.
While primary rules impose duties, secondary rules confer power, public or private. The thesis made Hart to conclude that international law is a law because nations feel an obligation to comply with it but it still lacks the character of a legal system because of lack of secondary rules. Rules of change and rules of adjudication are again related to rules of recognition because it is with reference to it that a particular rule is identified. Indian Concept Acc. to Hart’s Ideology
The Indian legal system is a fairly developed system and consists of both primary and secondary rules. The Constitution of India is the ultimate rule of recognition. Although under Article 51 of the Indian Constitution, it is provided that the State shall endeavour to promote international peace and security and respect its international obligation yet no rule of international law which is in conflict with the Indian Constitution can be binding on the Indian people and courts.
Primary rules of obligation in the Indian legal system include customs which are recognised by courts and various statutes
Pre-constitutional laws are given recognition by Article 372 of the Indian Constitution “but subject to the provisions of … Constitution”.
Hart criticises Austin’s definition of law as a command of the sovereign backed by sanctions. Hart emphasised on INTERNAL AND EXTERNAL ASPECTS OF A RULE.
Internal aspect of the rule distinguishes a rule from social habit. RULE OF RECOGNITION according to Hart forms the foundation of the legal system.
Such a rule is accepted by both private persons and officials and is provided with authoritative criteria for identifying primary rules obligation. In a modern legal system where there are a variety of sources of law, the rule of recognition is correspondingly more complex. In the day-to-day life of a legal system, rule of recognition is very seldom expressly formulated as a rule. The use of unstated rules of recognition by courts and others in identifying particular rules of the system is characteristic of the internal point of view. Under the Indian legal system, although the Indian Constitution is the ultimate rule of recognition, it presents certain baffling complexities—
— It allows the existence of parallel legal systems in the shape of personal laws many of which still derive their validity from religious institutions. Article 372 of the Indian Constitution allows continuance of pre-constitutional laws. It includes personal laws also. — There is a hierarchy of rules of recognition and the Constitution is at the top. This conflict in the Constitution brings us to the question of basic structure. Parliament has the power to amend the Constitution. It is the core of the ultimate rule of recognition. Normally, basic structure is said to be the grundnorm of the Indian legal system. According to Hart, these rules are minimal conditions for the persistence of social groups i.e. if certain rules did not exist the social group would not “survive”. Thus, we can say that there are minimal rules for the existence of a legal system. If these rules do not exist the legal system would not survive and by enunciating the basic structure the judiciary is only pointing towards these rules.
However, from the inefficiency of a particular rule general disregard for the system should be distinguished. Hart’s idea of OPEN TEXTURE OF LAW is his another important contribution to legal theory. Taking guidance from the general structure and aim of the Constitution the Supreme Court has given a totally new interpretation to Articles 14 and 21.
Grounds of Morality
Finally, what is the role of law and the legal system in an individual’s life? What should be the sphere of law? Should law enforce MORALITY on its subjects? The Indian legal system does not totally approve of Hart’s theory in this regard. Even under Article 14 the Supreme Court under the new concept of arbitrariness, enforces the prevailing morality by striking down a law as unreasonable. Based on the general acceptance of the people, Hart’s legal system comprises of primary rules of obligation and “secondary rules of recognition”, “rules of adjudication” and “rules of change”. Existing within the framework of certain minimal rules this legal system has enough flexibility to adapt itself to the changing needs. Except for the five truisms, Hart’s legal system like Aristotle’s Politics is amoral. Principles of morality are no touchstone to test the validity of the rules of legal system. They can, however, become legal rules after passing through the process prescribed by the legal system.
The Indian legal system is a fairly developed legal system comprising of both primary rules of obligation and secondary rules of recognition, adjudication and change. While the primary rules consist of various statutory laws and recognised customs, secondary rules are contained in the Constitution of India. The general legal framework is the source of validity or the “rule of recognition” for other rules and governmental action. As for the “rules of adjudication”, the Indian legal system contains a very integrated judicial structure with the Supreme Court of India at the top. The Supreme Court of India and High Courts of the States have the authority to interpret the Constitution also. A clear example of this is the replacement of “procedure established by law” under Article 21 by the “due process of law”.
However, it is on the question of morality that the Indian legal system seems to clearly disagree with Hart’s thinking. Thus, not only morality is explicitly used in Articles 25 and 26, and implicitly in Article 19(1)(g), even while judging the validity of particular laws against the Constitution of India the Court takes into account moral principles.
