Legal positivism and

condition of legal validity

( John Austin, Hans
Kelsen, Hart)DSP 70-
76,131-143, 144-152
Dr. LJJ Kandala
Office F016
lupwana.kandala@univen.ac.za
Consultation: Wednesdays: 09:00- 11:00
Thursdays: 10:00-12:00
Law is constructed by
human beings. Law is a - Positive law theory or positivism
collection of practices Unlike naturalists, positivists rely on the written law as
created by a given the only authority. Law is analysed only in terms of more
society that can be social facts about the conduct, belief, and attitude of
explained through the people, particularly in the relationship between power and
scientific method authority. If the law says that a certain act is wrong or
without using the valid right, it must be considered as such.
principle of justice. This Thus, the legal authority must come from written law
means that the content and not from other sources such as religion, morality,
of the law can change. philosophy, or science.
What is right today may A legal system is a collection of social facts (social thesis).
still be right over years. Thus, law and morals are not connected.
What is illegal in South Positivists are committed to the separation thesis that morality and law are
Africa may be also not connected. If some norms count as a law depends solely on the way, it was
enacted or otherwise the source of the norm and not on whether it is morally
somewhere else. sound.
 • Jeremy Bentham (1748-1832) in commentaries on laws of England
All laws, ancient and modern should be evaluated according to ethical principles of
utility or usefulness. A law was good or bad depending upon whether or not it
increased the general happiness of the people. Thus, law is not based on natural law
but is simply a command that expresses the will of the authority or sovereign.
• John Austin (1790-1859)

Positivists Positive law is a command by a sovereign and backed up by punishment or

sanction. Law need not be moral or ethical. Buckland summarised this theory: that
law is law since it is made by the sovereign. The Sovereign is Sovereign because he

and makes the law.

• Hans Kelsen (1881-1973) in The pure theory of law

positivism Believe in the hierarchy of norms. There are ground norms or hypothetical, highest
basic norm that underlies all legal systems.
• H L A Hart (1907-1992)
Believe in an absolute dividing line between law and morality. But agreed that
throughout history, the law has been influenced by morals and that certain legal rules
are indeed in accordance with specific moral or ethical principles. But for a legal
system to be valid, it has
 • 1826 he was appointed as a chair of jurisprudence at the University of London.

John Austin (1790-1859) • He registered jurisprudence as a study by a law student. Unlike other
philosophers like Plato, and Bentham, who reflected in detail on jurisprudence,
Positive law is a Austin was the first to give sustained attention to how jurisprudence might be
command by a taught to future lawyers.
sovereign and backed • Like Bentham, Austin dislike Blackstone’s Commentaries, particularly,
up by punishment or Blackstone’s muddling of laws, customs, and morals, and his first priority was
therefore to define clearly the precise nature of law in general and jurisprudence
sanction. Law need not in particular.
be moral or ethical. • He began his lectures by defining the focus of jurisprudence as ‘law as it is
Buckland summarised necessary, rather than with law as it ought to be; with law, as it must be, be it good
this theory: that law is or bad. Rather than with law as it must be, if it be good
law since it is made by • In his first work titled: The Province of Jurisprudence Determined: he describes
Jurisprudence as ‘concerned with positive laws, or with laws strictly so-called, as
the sovereign. The considered without regard to their goodness or badness.
Sovereign is Sovereign
In this book, Austin acknowledges that beyond the law as it is, positive laws, there lies
because he makes the the important science of ethics or morality, which is concerned with the law as it
law. ought to be and with how to study legislation, but insisted that Jurisprudence
cannot be distracted by these closely related concerned ( this is why Bentham argues
that Austin saw Jurisprudence as concerned exclusively expository aspect of law.
Key Characteristics He distinguishes between positive law and the divine law or the law of God. He argues that only the
former ( positive law) is relevant to his study.
of Austin’s 1st Characteristic of positive law :

understanding of - The laws or rules set by men to men, some are established by political superiors, sovereigns,
and subjects: by the person exercising supreme and subordinate government, in independent
positive law in ‘The nations or independent political societies. In other words, positive law is established by a
sovereign, most commonly in the form of the government of an independent nation.
province of - Austin refine his notion of sovereignty by adding that the sovereign can delegate authority

Jurisprudence to public officials including judges, who then act on behalf of the sovereign. ( rules on
international responsibility of the state for the act of officials)

determined’ (law is In his interpretation of Sovereign (delegation of authority) means that judges are restricted to a
law-interpreting rather than law-making function.
a Command of a 2nd Characteristics of positive law:
Sovereign, a - Is that law a form of a command: a Command is different from other significations of
desire, not by the style in which the desire is signified but by the power and purpose of
Command backed commanding to inflict evil or pain in case the desire be disregarded.

by a Sanction, it 3rd characteristic Austin associate with positive law, namely that it must be backed by a
sanction ( the evil or pain that follow if the command is disregarded)
produces habitual He describes the evil incurred by disobeying a command as ‘ an enforcement of obedience’

obedience) 4th characteristic

A law that produces habitual obedience.
 • Sovereign is a determinate person or body of
people whose most the people in the society obey
Law is a and is not himself obedient to any other person.
command, and a That mean that he has absolute political power.
command is to All independent political societies have a
express a wish. sovereign. The command issues by the sovereign
are general in character. Thus, according to Austin,
Not all laws that whether or not sometime is law is a matter of
expressed a wish who has been able to exercise political power to
are a command. compel the obedience of others and not about
morality. Accordingly, we do not regard the
Only those laws command of a teacher, employer as a command,
expressing a wish instead we regard law as issuing from some
and backed by politically constituted authority (parliament in
sanction are laws. the case of South Africa)
Difference
• Bentham remained dedicated to radical social reform while Austin turn to a more conservative
political agenda: Bentham’s final work ( Constitutional Code 1830) argued for democratic
reform of the British constitution, whereas Austin’s final work ( A plea for the constitution, 1859),
between Bentham argue that public welfare would be better served by an educated middle-class elite in
government than by any form of mass democracy.
and Austin: • Austin’s ideas’ were subject to fierce criticism.

although Austin is - Henry Marine (contemporary philosopher): Austin failed to account for the historical evolution of
a legal system and in proposing a universal jurisprudence failed to recognise the specificity of
different legal systems.
a disciple of - Austin emphasises on command over-simplifies the nature of law. The charge is that Austin takes

Bentham because his experience of law during five in the army as representative of all forms of the legal system, and
as a result does not account for the more complex nature and function of law in civilian society.

they share the - Austin’s ideas of the sovereign are too undifferentiated. It failed to explain the authority of
customary law and who is the sovereign in the case of customary law that pre-dates the

same commitment sovereign. It cannot account for rules created by subordinates to the sovereign or he cannot explain
instances where there are legal limits on the powers of the sovereign to for ex the bill of rights.

to positivism - Austin’s ideas of identifying law by the presence of a sanction are also questioned. Whereas
criminal law relies on the presence of sanctions, there are many other laws like succession,

principles , they
where there are no obvious sanctions attached.
- Austin separation of laws and morality, of law as it is from law as it ought to be has been

are differences identified in certain contexts: Nazi Germany and apartheid in South Africa as providing a
jurisprudential basis for condoning the passive acceptance of unjust laws.
 • They argue that Austin has been grossly misrepresented because only a very
small percentage of his work has been studied
• On the issues of lack of historical sensitivity, they refer to his deep knowledge of
comparative constitutional history and his efforts as a colonial advisor in Malta.
• As the idea of law as the command of a sovereign backed by a sanction is
simplistic, his defenders quote passages of his unpunished work to demonstrate that

Defenders of he was acutely aware that his famous/sovereign/command/ sanction theory required
extensive qualification.

Austin:
• As to the idea that Austin’s Conceptual separation of law and morality enables the
legal profession to deny any responsibility in enforcing unjust laws, the counter-
argument has been that Austin saw the distinction between morality and law as

contested the
conceptual distinction. In no sense, he did intend the distinction between morality
and law to excuse lawyers from the responsibility of pursuing social and legal
reform.

criticisms • The main argument of Austin disciples is that the reconceptualization of law in
the first half of the nineteen century provided a precise and appropriate vocabulary
for understanding the legal system of the emerging modern British state.
Roger Cotterrel states his defense:
Austin image of centralised state, making extensive use of coercion through law in
the matter of government, is also an image of a state which can be based on reason;
guided in government activity by utility, and securing the allegiance of subjects to the
sovereign ideally through their national understanding, not
 • During apartheid

• Many British colonies during the nineteen century use the system of utilitarian
administrators

What is relevant • Austin introduces the positivist model of political and legal governance. Austin
insistence that the sovereign makes law and judges and lawyers interpret the law,
underpinned the constitutional and legal changes in two Southern African
about Austin Colonies in the Cape and Natal

writing to South • In the Cape (1825-1825) the form of government evolved. Governance was the sole
responsibility of the governor (1825-1853) governor’s absolute rule was moderated by the
Africa advisory council and from 1853-to the time of the Union in 1910, there was a
representative government with a qualified franchise and a separate legislature, executive
During and judiciary. However, through all these constitutional changes, positivism provided the
fundamental ideological framework, and natural law was viewed as an anachronic
apartheid and in and unhelpful distraction

contemporary • In contemporary South Africa

South Africa It is arguable that Austin’s jurisprudence derives from criminal law, his writing on the
law has particular resonance for South African readers. The debate on the desirability of
the death penalty. It is Austin’s one abiding preoccupation, namely the role of the
appropriate sanction in securing law. The effort of the South African government to eradicate
crime is in line with Austin’s insistence that the sovereign should enjoy the exclusive rights
to authorize violence
 • How Kelsen’s philosophy extends to his approach to law
jurisprudence

Hans Kelsen (1881- • Kelsen’s idealism underlines his approach to jurisprudence in that he
argues that each branch of thought, or science, discipline has its
1973) in The pure own distinctive set of ideas or conceptual structure. What makes
theory of each scientific discipline distinctive is the fact that each discipline
views the world through a unique set of conceptual lenses. For Kelsen
law’ :Believe in the the priority is that law should be studied through its own set of
hierarchy of norms. conceptual lenses.
There are ground • He termed this approach to jurisprudence the pure theory of law:
norms or because it only describes the law and attempts to eliminate from
the object of this description everything that is not strictly law. Its
hypothetical, the aim is to free the science of law from any alien elements. “The
science of law has been mixed with elements of psychology,
highest basic norm sociology, ethics and political theory. This adulteration is
that underlies all understandable because the latter discipline deal with subject
matters that are closely connected with law…”
legal systems.
 - First, he insists on the imperative need to
separate the study of law from closely
Kelsen related but distinct disciplines like politics
and psychology
emphatically - Secondly: he reiterates the distinction
reproduces between law and moral
major - He claims that his method of studying law is
preoccupations scientific: it is a science of law
of legal (jurisprudence) not legal politics ( Davis and
Holdcroft 1991, 109)
positivism •
 • For Kelsen, the science of nature constitutes/creates
How Kelsen nature. In other words, nature does not exist until the
distinguish science of nature (idea/ concepts) creates nature
(empirical reality) as a meaningful and
between his comprehensive whole. Thus, the science of law
pure theory constitutes/ create the legal system. In order word,
the legal system does not exist until the science of
of law from law (idea/concept) create the legal
system(empirical reality) as a comprehensive
the natural hole, until the application of the science of law.
sciences( phy • Kelsen’s European education introduce him to the
sic and German idealism of Kant and Hegel and his own
biology) conceptual framework accordingly follow this
philosophy.
 • Kelsen groups the science of law with the science of morality
and religion and called it the normative science

Fundamental • Kelsen uses Kant’s distinction of understanding between Sein

(what is) and Sollen ( what ought to be) to distinguished
distinction between normative science and natural science.
• According to him natural sciences operate in the context of
between the Sein ( that they are concerned with what is )and normative
sciences operate in the context of Sollen ( that they are
science of concerned with what ought to be.
• It is possible for a legal academic and natural scientist to
law and witness the same events but give different interpretation .
Ex throwing a blackboard eraser to someone else ( a physicist
natural will be preoccupied with the speed, trajectory and power used
to throw the buster while a lawyer will be more focused on the
sciences qualification of the act: whether delict or criminal offense and
the consequence of such as act)
 • Law is not the only normative science it is also possible to analyze religion and morality as
a normative system that operates within the sole category of understanding. Kelsen believes

How does
that morality, religion, and law may all be understood as normative orders.

• An order is a system of norms whose unity is constituted by the fact that they all have the

Kelsen same reason for their validity .

• The reason for the validity of a normative order is the basic norm,
distinguish from which the validity of all norms is derived.

between the • So what distinguishes legal order from other normative orders is its
coercive nature. Social orders called ‘law’ are coercive orders of
human behaviour.
science of • What is a norm according to Kelsen: by norm, we mean that something ought to be or

law and
ought to happen, especially that a human being ought to behave in a specific way’.
The legal norm to which Kelsen refers should not be confused with moral norms. As a
positivist, Kelsen is concerned to analyse the law as it is, and not as it ought to be.

morality and • The word ought to be used not in the ethical or moral sense but in the technical or legal
sense. It means that the norm requires or commands the person to behave in that way. It
does not mean what is morally right or good.

religion • For Kelsen a legal norm may be either morally good or bad, but does not affect its status
as a valid legal norm. because the validity of a legal norm is determined by its
efficacity rather than by the moral quality it may possess.
 • He argues that a legal norm confers a legal meaning upon a human act. In words, the human act becomes a legal
act by taking on legal meaning as part of the legal system. The law defines the act or gives meaning to an act. Nullum

Distinction •
crimen sine lege; nulla poena sine lege. (no crime without law , no sanction without law).

Ex: command of a gangster to give him money has the same subjective meaning as the command of an income tax

between
officer to an individual at whom the command is directed ought to pay something.

• Once a legal act has been designated by a legal norm, it may create itself a legal norm. ( legal act can create a legal
norm: act of parliament or passing of laws in parliament )

legal norms Ex : the constitution authorize the parliament to pass laws. It is the Constitution’s legal norm that gives legal meaning to
the parliament’s legal act of making laws. The laws that are passed by the parliament are therefore legal norms but under

and legal
the Constitution. These legal norms ( laws) then confer legal meaning to other human acts.

Norms’ hierarchy

acts and • Kelsen’s ideas of the Grundnorm: legal norm in any particular legal system forms a hierarchy. The validity of each
norm is dependent upon another norm that has greater authority in the hierarchy of norms. The most authoritative
norm is the basic norm or Grundnorm and the validity of all the norms in a particular legal system is derived,

Kelsen ideas
ultimately from the Grundnorm of that legal system.

• The norm which represents the reason for the validity of other norms is higher. In the case of the death penalty, one
may question the reason for the validity of such a norm. If we ask for the reason for the validity of the criminal

of norms’ law. then the answer is that criminal law is valid because it was created by the legislature and the legislature is
authorised by the Constitution to create norms. The reason for the validity of a Constitution may be found through
constitutional amendments, old constitutions…

hierarchy • Kelsen and norm creation, he argues that in the first instance the process of creating legal norms is a dynamic one.
Although legal norms form a hierarchy, they are not linked to each other in a determined or linear fashion: at each step
in the process of norm creation, human actors make decisions that affect the process. secondly, Kelsen argues that
once a legal norm has been created by a particular legal act, it continues to exist despite the fact that the person or
persons who created it turn their attention to other matters.

• Creating legal norms persists beyond the particular application relate most obviously to the act of judges.
Judges create new legal norms in the application of general legal norms
 • Relation between validity and efficacy of legal norm. Kelsen argues that the
Relationship validity of each legal norm is determined by its effectiveness: “A general legal
norm is regarded as valid only if the human behavior that is regulated by it actually
conforms with it, at least to some degree. A norm that is not obeyed by anybody
between anywhere, in other words, a norm that is not effective at least to some degree, is not
regarded as a valid legal norm. A minimum of effectiveness is a condition of

Validity and validity.

• The word effectiveness enclose 2 facts :

Efficacy and - A norm must be applied by a legal organ ( court executes the sanction) and

the relevance - The norm is obeyed by the individual subjected to the order

of Kelsen’s Effectiveness is different from validity. A norm loses its effectiveness and therefore its
validity and then cease to be a norm. however, when a grundnorm loses its
effectiveness and its validity, all the legal norm in the legal system remains intact
though to The norm of a positive legal order is valid because the fundamental rules regarding

South Africa their creation ( basic norm) are valid.

• His idea of Ground norms, in particular, has attracted the attention of South African
legal scholars. This is not surprising given the many different constitutions that have
defined South Africa’s legal history in the last two centuries
 • A revolution is a broader sense of coup d'état. According to his legal
science point of view: it is irrelevant whether a change of legal
situation has been brought about by the application of force against
the legitimate government , whether by the mass movement of the
How the people, or small group of people
• When a revolutionary struggle is taking place within a society, it is
pure theory necessary to look beyond the law to the military and political
situation to determine whether or not the legal system in a particular
of law country is effective.
• The effectiveness of the grundnorm and validity of the entire legal
account for order , depends upon whether or not state officials carry out the legal
norm.

revolutionar • Kelsen theory has been applied by many countries after revolution:
Pakistan (1958), Kelsen theory applied in court The State v. Dosso

y change PLD 1958 SC 180, 553 But the case was overruled 14 years later in
the case of Jilina v. the Government of Punjab PLD 1972 SC 670,
which rejected Kelsens’view.
• In 1965 coup in Uganda and Kelsen theory was invoked in Uganda v.
Commissioner of prisons, ex parte Matovu [1966] EA 514..
Herbert L A • HART was influenced by the philosophy of language. Which state
that:

Hart (1907- Philosophy may in no way interfere with any use of language, it can in
the end only describe it, for it can not either give it any foundation either.
It leaves everything as it is. This philosophy of leaving everything as it is
1992) and was translated by Ludwig wants to describe language and leaves
everything as it is, was translated by Hart in his study of
the jurisprudence as a methodology dedicated to describing law
accurately, and to leaving the laws as it is that is uncontaminated by

Linguistic
other subjects, such as morality and politic. The second key feature of
the theory is that he elevated the vocabulary of ordinary language above
technical and theoretical language. Austin explains his preference for
philosophy ordinary language as follows: our common stock of words embodies all
the distinction men have found worth making, in the lifetime of many

of Ludwig generations, these are surely likely to be more numerous, more sound,
since they have stood up in the long test of the survival of the fittest.

Wittgenstein • Hart also used Austin’s emphasis on ordinary language in philosophy

& J.L Austin in his jurisprudence as a commitment to attend closely to the

shade of meaning in words commonly used in law.
 •Hart is in sympathy with the idea of Bentham and Austin (aspire also to the idea of the general theory
of jurisprudence applicable to all legal systems). With the command theory of law, Hart disagreed with
the traditional positivism position.
•To object to the command theory, Hart used the same ex as that of Kelsen on the difference between
legal norms and legal acts. Ex: a gunman demanding money from a clerk’s bank and a receiver of tax

H L A Hart
revenue demanding tax from a citizen. In both cases, there is a command backed by sanctions. But in
the 1st case, the gunman has no authority over the bank’s clerk.
•Hart uses the J.L Austin method of analysing ordinary language to make the distinction between being

Objections obliged to do something( banker threatened with a gun) and being under the obligation to do
something (taxpayer) to be under an obligation to do something involve the concept of a duty that
exists irrespectively of whether punishment follow

on the •Hart sees the idea of obligation or duty as central to law and argues that the command theory is
fatally flawed because it failed to take account of this concept of duty and obligation.
•Hart conceives that criminal statutes might make sense in the context of command theory but they

Command exceed it because they apply to both those who promulgate them and those who are subject to
them.
•Hart points out three categories of laws that cannot be explained by the command theory:

Theory of -Law conferring legal power to adjudicate or legislate

-Law that creates or regulates legal relations(private power, they have threats and are not a command)

Austin
-Rule of law which are brought by analogy (inference rules)
•He disagreed with the analysis of law in terms of Sovereign. Who is the sovereign ( is it the electorate
or legislative authority) Austin failed to identify the sovereign?
• Hart declare that law is not morality. Believe in an absolute dividing line between law and morality.
But agreed that throughout history, the law has been influenced by morals and that certain legal
rules are indeed in accordance with specific moral or ethical principles.
 • Hart is substantially in sympathy with the idea of Bentham and
In summary Austin. As regards to separation of law and morality, he
declares emphatically in his debate with Fuller that “law is
what is Hart’s not morality, do not let supplant morality’
• He also shares Bentham and Austin’s commitment to critical
view on the clarity and public utility and aspires like them to a general
theory of jurisprudence applicable to all legal systems.
nineteen- • However, in relation to the command theory of law proposed
century by Bentham and elaborated by Austin, Hart disagrees with the
traditional positivist position. To illustrate the shortcomings of
positivist the command theory of law, Hart employs the same example as
that used by Kelsen to distinguish legal norms and legal acts.
tradition: Hart contrasts the gunman demanding money from the bank
clerk with the receiver of revenue demanding money from a
citizen
  According to Hart, the command theory of law fails
because ‘ the element out of which the theory was
constructed, viz the ideas of orders, obedience,
habits, and threats do not include and cannot by their
How does he combination yield the idea of a rule, without which
understand we cannot by their combination yield the idea of a
rule without which we can hope to elucidate even
the place of the most elementary forms of law.
 Hart, therefore places the idea of rules at the centre
rules in his of his jurisprudence and insists that law should be
seen not as a set of separate commands, but rather
analysis? as a system of integrated rules.
 As a result, is dedicated his jurisprudence to
distinguishing the different categories of rules
that define legal systems
 • Heart expanded on the linguistic philosophy and describe the
linguistic practices associated with law, with particular attention
to the languages of courts. He believes using this approach provides

What are the

‘ an improved analysis of the distinctive structure of a municipal legal
system and a better understanding of the resemblance between law,
coercion, and morality, as types of social phenomena.
main • Hart introduces the concept of rules into the analysis of law and then

concepts in develops his critical vocabulary based on the following distinctions:

- Between the external and internal aspects of rules,

Hart’s theory - Between social rules of obligation and other social rules,

of Law - Between rules of law and rules of morality,

- Between primary and secondary rules, and

- Between secondary rules of recognition, change, and adjudication

 • Central to Hart’s understanding of rules is his distinction between the external and internal rules.
‘whereas the external aspect of rules is apparent to the observer who does not himself accept them,
the internal aspect of rules is apparent only to a member of a group which accepts them and uses
them as guides to conduct

• He explains that a study of law that focuses only on the external aspect of rules will be severely

How Hart limited because the external point of view, which limits itself to the observable regularities of
behaviours, cannot reproduce the way in which the rule function as a rule in the lives of the
majority in the society. These rules are used by lawyers, officials or private persons as guides to the

understands
conduct of social life as the basis for claim, demand, criticism, and punishment in all the familiar
transactions of life according to rules. For them, a violation of a rule is not merely a basis for the
prediction that a hostile reaction will follow but a reason for hostility

the external • Understanding the external aspects of rules may account for the fact that rules are obeyed but it
failed to account for why people obeyed the rules. An understanding of internal rules however
does explain why people obeyed rules because it focuses on the critical reflective attitude of

and internal citizens

• For Hart There must be a critical reflective attitude of a certain pattern of behaviour as a

aspects of
common standard, and that this should display itself in criticism (self-criticism), demand for
conformity, and acknowledgement that such criticism and demand are justified, all of which find
their characteristic expression in the normative terminology of ought, must, and should, rights and
wrong.

rules • An appreciation of the crucial internal aspect of rules which is the critical reflective attitude of
citizens towards the rules, must accompany an understanding of external aspects of rules. A
valid rule must therefore have both an external and internal aspect, and obedience to such a rule must
combine both the fact of obedience to the rule and a critical reflective attitude on the part of the
citizen who views the rule as desirable for an internal perspective.

•
Hart’s • For Hart, the key distinction is that whereas there is
considerable social pressure to obey rules of obligation, there
understanding of is no same pressure to obey other social rules. There is more
the distinction than merely the expectation that the rules will be obeyed, there
is great pressure to conform to these rules. What is important is
between social the insistence on the importance or seriousness of social
pressure behind the rules is the primary factor determining
rules of whether they are thought of as giving rise to the obligation.
obligation(oblig • Hart point to 2 characteristics of obligation rules :
ation rules) and - They are associated with some especially valued features of
social life and are regarded as particularly important because
other social they protect the life of the society (rules prohibiting assault ..)
rules(such as - Obligation rules prescribe conduct in conflict with a citizen’s
personal self-interest, but it remains the citizen’s duty in terms
rule of of a rule of obligation to ignore his/her self-interest and to obey
grammar). the rule.
 • After drawing the difference between social rules of obligations and other types of social rules, Hart proceeds to
subdivide rules of obligation into rules of law and rules of morality.

• Rules of law are distinguished from rules of morality by the criterion that the social pressure brought to

Hart’s bear on those who deviate from rules of law includes physical punishment. Rules of law can also be divided into
primary and secondary rules.

understanding • Difference between primary and secondary rules of law

• Primary rules are those rules of law that lay down that ‘human beings are required to do or abstain from certain

of the
actions, these rules that regulate the basic need of society and are designated to guarantee the survival of
society. They preside over limited natural resources and restrict violence, theft, and deception. Primary rules have
a minimum content of natural law in that for a society to survive in nature, its members must abide by these

distinction
primary rules

• Hart reduces these primary rules (minimum content of natural law) to 5 truisms about human conditions.
According to Hart for a human society to survive, there must be primary rules that either protect, regulate or

between rules enforce:

- Human vulnerability

of law, and rules - Approximate equality

of morality;
- Limited resources and

- Limited understanding and strength of will

primary and • Secondary rules are parasitic upon or secondary to the first. For they provide that human beings may be doing or
saying certain things introduce new rules of the primary type, extinguish or modify old one, or in various ways
determine their incidence or control their operation.

secondary rules • According to Hart so-called primitive societies may have only so-called primary legal rules but no secondary
rules, whereas more developed societies will have both primary and secondary legal rules. He speculates that in a
society with only primary rules 3 categories of problems are likely to arise: Uncertainty about the scope and
meaning of rules, a lack of procedure for changing rules, and an absence of procedure for resolving disputes.
Secondary rules evolve to meet these problems
 • Secondary rules of recognition are developed and may be used to meet the problem of uncertainty regarding the
meaning and scope of rules.
• Hart greatly emphasises on secondary rules of recognition because they perform the important task of identifying legal
rules.

Difference
• As Hart puts it: ‘ wherever such a rule of recognition is accepted, both private persons and officials are provided with
authoritative criteria for identifying primary rules of obligation.
• The rules of recognition, therefore, set out how both officials and private citizens can identify valid primary rules in an

between
authoritative way.
• Secondly, to meet the problem of a lack of procedure for changing primary rules, the secondary rules of change are
developed. Rules of change lay down the procedures for the alteration or abolition of existing rules. ex: a rule of change

secondary
is a rule prescribing how parliament enacts new laws and repeals old laws. Without secondary rules of change, the
primary rules of obligation would be static and the only method for change would be the very slow process of evolving
custom.

rules of
• Thirdly, to meet the problem of an absence of a procedure for resolving disputes, the secondary rules of
adjudication are developed. Rules of adjudication lay down the procedures for resolving disputes, and include the law
of evidence and procedures.
• Hart applies his positivist critical vocabulary to all aspects of his study of law, by there are 2 aspects with direct

recognition, -
bearing on South African law :
The question is how to apply Hart’s rule of recognition and identify a valid legal system.

change, and
- How do judges adjudicate in hard cases where the law is uncertain?
In relation to the 1st question: there is a need to consider how Kelsen’s Grundnorm was applied in cases where a legal
system loses efficacy during a revolution and ask in relation to Hart ‘what are the minimum requirements for the existence

adjudication
of a valid legal system?
• Hart specifies 2 minimum conditions for the existence of a valid legal system: obedience (primary rules) by ordinary
citizens, and the acceptance by officials of secondary rules as a critical common standard of official behavior. In other
words, Hart identifies a valid legal system by 2 facts: that citizens obey the primary rules of the society and that
the officials accept the secondary rules of recognition, change, and adjudication as the common public standard.
• Distinction between citizens obeying primary rules and officials accepting secondary rules is crucial as it removes the
criterion of morality from any consideration of the validity of a legal system. As long as citizens obey the primary rules
( whether morally or not) and as long as officials accept and apply the secondary rules, the legal system remains valid.
 • The way judges decide or adjudicate a case is a central question in jurisprudence. The question become urgent in
hard cases where the laws fail to give guidance to the judge. The judges are in such a difficult situation.

How Hart • Hart anticipate that: in all field of experience, not only that of rules, there is a limit, inherent in nature of
language, to the guidance which general language can provide.. Whichever device , precedent or legislation , is
chosen for the communication of standards of behaviour, these , however smoothly they work over the great

explains
mass of ordinary cases, will at some point where their application is in question , prove indeterminate ; they will
leave what has been termed as open texture
• Hart views 2 processes followed by a judges in hard cases:

judicial -

-
Sceptics who argue that judges use their own moral and political preferences to decide cases and search for
available rules to justify or disguise the real factors determining their decisions
Formalists argue that the formal system of rules provides complete certainty within the legal system, and for

discretion in •
every practical problem , there is a single clear legal solution in the formal system of rules.
Hart’s position is therefore to establish the difference between scepticism and formalism. He argues that
scepticism and formalism are Scylla and Charybdis of juristic theory, they great exaggerations, salutary

hard cases
where they correct each other and the truth lies between them.
• Hart then believe that the law should not be regarded as being completely certain in its application (as
formalist believe) but also not as being completely relative (as scepticism ). He concedes that law does

where the
indeed have an open texture in hard cases, but believes that there remain vast areas of law where the rules
are clear. It is only in hard cases , where the rules have run out that the judges exercise their own
discretion . In these occasional cases, courts swift from their traditional function of interpreting the rules
of law and perform a rule-producing function …very like the exercise of delegated rule- making powers

law is
by an administrative body
• Hart argues also in the his book the concept of law that: in hard cases judges rely ,like a conscientious
legislators , on his sense of what is best and not only on any already established order of priorities

uncertain
prescribed for him by law.
• This approach has led Hart to be classified as a soft positivist as he also identify moral criteria in rules of
recognition.
•
 • Hart’s powerful restatement of the case for legal positivism was subjected to sustained
criticism by his major naturalist Fuller, Devlin, and Dworkin
What is the Among them :

main criticism
- Hart emphasises the liberal dimension of the idea of Bentham and Austin without
confronting the authoritarian and anti-democratic aspects of the positivist legacy
- Hart’s idea of primary rules as a limited content of natural law is ill-defined and in many

of Hart’s respect as vague and intuitive as the natural law of his adversaries
- Hart fails to answer satisfactorily Fuller’s objection to the complicity of positivism and unjust

theory? laws.
- Hart failed to distinguish between different legal institutions (ex:police and judiciary) in the

And the
enforcement of primary rule ad secondary
- Dworkin has attacked Hart’s understanding of judicial discretion, suggesting that, even in a
hard case, legal principles constrain judges in exercising their discretion.

relevance of - Hart responded to the last criticism by conceding that he had failed in the concept of law to
give due weight to legal principles, but at he explicitly expanded the scope of his concept of

his theory in legal rules to include moral considerations: ‘Accordingly to my theory, the existence and
content of the law can be identified by reference to social sources of law (legislation, judicial
decisions, social customs) without reference to morally where the law thus identified has itself

South Africa incorporated moral criteria for the identification of law’

• What is the relevance of Hart’s ideas to South Africa? This theory provided the terms of
the jurisprudential debate. Hart’s separation of law and morality, his criteria for
identifying a valid legal system, and in particular, his argument about judicial discretion
in the hard case continues to exert a powerful influence on South African legal scholars.
 • John Austin, The Province of Jurisprudence
determined 1995, 112
• D Johnson, S Pete & M du Plessis, Jurisprudence: A
South African Perspective (2008) Lexis Nexis:
Durban pp.1-2;
• Bilchitz, Metz & Oyowe, Jurisprudence in African
Sources Context (2017) Oxford University Press (South
Africa) pages 53-66
• L Meintejes-van der Walt; P Sing; M du Preez; JH de
Bruin; SA de Freitas; Chinnian; A Govindjee; P Iya;
H van Coller, Introduction to South African Law:
Fresh Perspectives (Phillippa van Aardt, Cape Town
2008).