H.L.A, Hart’s Concept of Law
About H.L.A Hart - he was born in 1907. His bachelor’s degree was from Oxford University in 1929 he practised as a barrister in the chancery court of London. he studied philosophy and later became a tutor in philosophy from 1946 to 1952 and after that, he served as a professor of jurisprudence. His famous works were “The Concept of Law 1961” the causation in the Law 1959″ and Law Liberty and Morality 1963.
He criticized the theory of Austin - Hart criticized Austin’s theory of law, according to him many laws do not have sanctions attached to them, for instance, customary laws, enabling laws, and laws imposing duties on public authorities.
He criticized Austin’s concept of law where he described the law as the command backed by the threat of sanction, but as per Hart, this concept can only apply to criminal law or power-conferring laws.
He also criticised the concept of sovereignty because of conferring unlike power. And with the notion of habit of obedience, Austin fails to define the concept of continuity of law.
Hart defined what the law is -;
"Law consists of rules which are of broad application and non-optional character, but which are at the same time amendable to formalities, legislation and adjudication.
Hart divided law into two categories - primary rule and secondary rule.
Primary rule -: primary rule sets absolute obligations on an individual. Which directs them to do or to abstain from doing certain activities.
e.g. IPC/BNS (substantive law)
Secondary rule -: these rules are ancillary and subsidiaries to the primary rules in different ways, as they define how primary rules may be discovered, introduced, changed and enforced. Secondary rules are mainly procedural and remedial.
It describes the fair procedure for every just society. hence it enables the legislature to modify their policies as per the needs of the society.
four types of secondary rules -
1. ( Rule of recognition) It helps to determine the validity of the rule and specify which should be followed and which not. It helps to cure the defect of uncertainty in the primary rule.
2. (Rule of change) Under this exist those rules which can be changed and altered, and how it can be changed who has the authority, all these procedures are defined here, as it cures the defect of the static character of primary rule
3. (Rule of adjudication) It empowers certain individuals to authoritatively decide upon the disputes related to primary rule and adjudicate upon the same.
4. (Sanction imposing rule) It describes which type of penalties would be imposed on an individual in violation of any rule.
