What is Law? Baby Don’t Hurt Me, Don’t Hurt Me, No More…

Ok, before I start I just want to note that there are clearly different ideas of social conventions.  Take for example the person who is sitting across the room from me blabbing on her phone.  The parameters:  It’s Saturday night, I’m in my favourite study place (the laundry room) which is, I acknowledge, a public space.  It is however Saturday night and with the exception of a couple fools with no life like myself, the building is empty.  She can see I’m studying.  My books are open.  They’re not comic books. It’s not like there’s nowhere else to go in the building.  There’s a lounge around the corner.  Oh, well…

Notes and Thoughts on H. L. A.  Hart’s The Concept of Law: Law as the Union of Primary and Secondary Rules 

I know what you’re thinking: this is going to be the most exciting thing to read–ever!  Well, I can’t promise you that, but I’ll do my best to make it into your top 3.  From the point of view of philosophy of law, H. L. A. Hart is pretty exciting.  Lemmi ‘splain why.  So, in my last entry on philosophy of law we looked at Aquinas’ naturalistic conception of the law, which expresses one of the poles on the continuum of answers to the question of “what is law”.  On the other pole is Austin and “positive law”.  I didn’t write anything about his position but basically the central debate in philosophy of law (in modern secular terms) is over the role of morality in law.

To recap both positions, Augustine thinks that human law (what we now generically refer to as “law”) is only legitimate to the extent that it expresses divine law (i.e. morality).   A strong interpretation of Augustine’s position is that if a law is unjust (i.e., inconsistent with divine law/morality) then one is not compelled to obey it.  This interpretation raises some interesting issues that I might discuss later.

Austin, on the other hand, is all “dude! if it’s a law in the books, then it’s a law.  Sayin’ a law is immoral is one thing, but saying it’s not a law, and you don’t need to obey it is another.”  For Austin, a law must be obeyed to the extent that it emanates from a legitimate political entity; its content is irrelevant.  Actually, he has a pretty awesome quote to summerize his position:

Now, to say that human laws which conflict with the Divine law are not binding, that is to say are not laws, is to talk stark nonsense.  The most pernicious laws, and therefore those which are most opposed to the will of God, have been and are continually enforced as laws by judicial tribunals.  Suppose an act innocuous, or positively beneficial, be prohibited by the sovereign under the penalty of death; if I commit this act, I shall be tried and condemned, and if I object to the sentence, that it is contrary to the law of God…the Court of Justice will demonstrate the inconclusiveness of my reasoning by hanging me up…An exception, demurrer, or plea, founded on the law of God was never heard in a Court of Justice, from the creation of the world down to the present moment. (my italics)

Regardless of where you stand on the continuum, the main issues arise out of your answer to what you think is the relationship between morality and law.  Does law have to reflect morality?  Does law arise out of morality?  Does the legitimacy of law arise out of its relationship to morality or the political institutions from which it was promulgated?  What is our obligation, as citizens, to obey laws?  And out of what does that obligation arise?  Under what conditions should we disobey the law?  

Of course there are more questions, but you get the picture: our answer to how law and morality are related is going to heavily influence how we answer the above questions.  Ultimately, by trying to understand the relationship between law and morality we also approach an answer to the question, “what is law?” (baby don’t hurt me, baby don’t hurt me, no more)

So, anyway, around the middle of the 20th Century, H. L. A. Heart comes along and is all, like, “guys, check it out, I’ve got an idea that everyone can enjoy…” Yay!


Law as the Union of Primary and Secondary Rules

Primary Rules

Yo, check it.  Imagine you is in a jungle tribe (because all tribes lives in jungles).  There’s no formal government or legal system–i.e., courts, legislature, etc…So, what would allow these tribespeople that hunt with spears and play drums all time (all tribes hunt with spears and play drums all the time) to co-exist with each other?  Well, it would be the general attitude of the tribe towards its own standard behavioural norms–i.e., the degree to which they adhere to their social conventions and customs.  Hart calls these customs the primary rules.  

All systems of primary rules, in order for people to co-exist along side each other, must contain (1)  some form of restriction on the free use of violence, theft, and deception.  Such rules are found in every primitive society along with various positive obligations toward contributing to the society (unless it’s a libertarian society, in which case everyone else can go screw themselves).  

(2) The second set of conditions required in a society having only primary rules is that the number of people who support a given rule must be in the majority, otherwise there would not be sufficient social pressure to ensure conformity.  So, in any primitive society there will be individuals who try to or do break the rules or object to the rules, but the majority will always live by the prevailing rules/customs.

Problems With Having Only Primary Rules

Consider the following situation: I am a world famous DJ (call me DJ QWanTum NRG) living in a primitive pre-legal society and I want to remake the early 90s classic hit “What is Love”.  It is custom in our tribe to ask permission from the original artist to remake a song, especially if it’s going to be a techno-trance remix, which happens to be my speciality.  (Every detail in this hypothetical situation is of vital importance).  Unfortunately, Haddaway (the original artist who also lives in my tribe) went-a-way for a hol-i-day.  Well, I’ve got a rave to DJ tonight and I can’t wait for him to come back this-a-way.  I need to know now.  

Anyway, to make a long story short, I play my awesome remix and er’body loves it so much they say I should change my name to DJ Jesus.  The following Saturday, I run into Haddaway.  He says I broke one of the customs and now should be sentenced to hang by my thumbs.  I say, “well, I didn’t know I have to ask about doing a remix, I just thought we do that to be polite.”  And Haddaway is all, “no, for this custom you are obliged to follow it, otherwise you will be punished”.  And I’m all, “well, if I had-a-way of knowing things were that-a-way, I wouldn’t have played my remix; it’s not clear what customs are suggested practice and which are rules must be followed.”

This totally plausible example summarizes would happen in hypothetical society with only primary rules (customs) where there was a disagreement on whether a rule applied to a situation or not; or that there was even a rule that applied.  In a system of only customs, how is it to be determined if a custom is a rule of etiquette that is polite and optional (e.g., table manners, RSVPing, social conventions) but not obligatory, or a rule to which adherence is obligatory.  

In a society with no legal system, there would be no procedure or criteria for differentiating:  they won’t have any official book or authority that can resolve the dispute because this would imply a secondary set of rules: rules concerning how to resolve disputes about the degree of adherence required for a given primary rule.  A primitive system of only primary rules will have a problem with uncertainty, because of an absence of rules prescribing how to resolve such situations.

A second problem with such a primitive system is that its rules will be static.  Since there are no rules about how to change rules, a society will not be able to adapt where and when appropriate.  The only way primary rules can be introduced is if they, by random happenstance, move from being optional, to habitual, to obligatory.  For rules to be eliminated, deviations that were previously punished will start to go unpunished, until such infractions go unnoticed.  

The third problem with our hypothetical primitive society’s system is that of inefficiency.  Rules are only enforced by social pressure, but what happens in borderline cases where it isn’t clear if a custom was broken or not?  Some might think a custom was violated, others not.  With no rules for resolving such situations, our tribe’s system is very inefficient. 

The Solutions:  Secondary Rules

You guessed it: we need secondary rules–rules that outline how to deal with problems of uncertainty, staticity, and inefficiency in a system of primary rules.  Also, it is interesting to note that it is the introduction of secondary rules that brings about what we recognize as a legal system.  So, what are secondary rules?  They are the rules about the primary rules.  They concern how primary rules can be ascertained, introduced, eliminated, varied, and the fact of their violation conclusively determined.  

Secondary Rules for Uncertainty:  The Rule of Recognition 

The first and most important of the the secondary rules is “the rule of recognition” which addresses the problem of uncertainty.   How do we know what rules are socially polite to follow (e.g., table manners) but not obligatory, and what rules are obligatory and whose transgression are followed by sanction?  The rule of recognition tells us!  The rule of recognition might be something as simple as “whatever Bob says is law” or “look at the tablets God gave to Moses'” to something as sophisticated as, “if it passes votes in both legislative houses by a 2/3rd majority and isn’t vetoed by el presidente”.  The point is, when there is a rule of recognition, there is some way for individuals to know what customs are obligatory to follow and which aren’t.  

Secondary Rules for Overcoming “Staticness”:  Rules of Change

If we want our society to have a way to change rules we need rules on how to change those rules, which are called the rules of change.  These rules can be simple or complex.  A simple rule of change would be that a certain individual (the head DJ of the tribe) gets to decide whether a primary rule can be introduced, eliminated, or modified.  

There will be a close relationship between the rules of change and the rules of recognition because introducing a new rule or repealing an old rule will also require the rule of recognition to tell us what is and/or isn’t a rule.  The simpler the legal system, the closer the rule of recognition will resemble the rules of change.  

A contemporary instance of a primary rule changing can be observed in US states where there are attempts to extend marriage laws to include gay couples.  The procedures the advocates are going through are the rules of change for the respective state legal systems.

Secondary Rules for Overcoming Inefficiency:  Rules of Adjudication 

Under a system of only primary rules, compliance is brought about purely through social pressure.  How do we decide in ambiguous cases if someone has broken a primary rule?  This is where rules of adjudication come in:  these are rules about what individuals get to decide if a primary rule was broken  and how (i.e., judges, courts, lawyers, jurisdiction, and judgement).   Rules of adjudication will also include what sort of penalties are are acceptable for different classes of transgressions of the primary rules.


Returning to the original issue of the relationship between morality and law, we are in a better position to evaluate the matter now that we have a clearer picture of what law is.   Within Hart’s framework, we can ask internal and external questions about law.  Internal questions are about whether a certain law applies to a given situation–that is, is a given law valid?  Does it meet the criteria of the rule of recognition?  Answers to questions of validity will involve analysis of the secondary rules: Is the primary rule (i.e., law) legitimate in regards the rule of recognition?  

External questions are about the secondary rules that confer legitimacy on a particular law.  Such questions might include: is it good that the only thing that makes a law valid is that DJ Jesus said it’s valid?  Maybe there should be other criteria for validity…

Notice two things.  In Hart’s model we aren’t questioning the moral worth of particular laws, we can only question whether they are valid and whether they apply to a particular situation.  However, as we enter the realm of external questions, we enter the realm of values, but not about particular primary laws…

So, I ask you:  What is law?  Baby don’t hurt me, baby don’t hurt me, no more…

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