Hart’s Three Remedies to Solve the Inefficiencies of Primary Rules

H.L.A Hart wrote The Concept of Law in 1961, and it is regarded as one of the most influential pieces of legal jurisprudence to date. Hart presents The Concept of Law as a legal theory which follows the legal positivist’s school of jurisprudence. Such a theory views laws' existence and content as dependent on social facts.

Hart begins his legal theory by setting out a primitive society where there is no legislature, courts, or officials. Under such a society, the only forms of social control are based on the group's general attitudes towards its own standard modes of behaviour. This social structure is what Hart terms as the primary rules of obligation. Moreover, such a system can only exist with a community closely knit by ties of kinship, common sentiment, belief, and placed in a stable environment, only then can you successfully live in a regime of unofficial rules.

According to Hart, the social structure of primary rules has three defects. First, if there are any doubts or questions relating to the scope towards a given rule, there is no procedure for settling this doubt. Secondly, the only mode of changing the rules is a slow process of growth. Finally, there is an inefficiency to diffuse social pressures by which the rules are maintained. Dispute as to whether a rule has or has not been violated will always occur. It will, in any but the smallest communities, continue if there is no agency specially empowered to ascertain the facts of violation.

To solve the three defects of primary rules, Hart outlines the notion of secondary rules. These are; the rules of recognition, change and adjudication. To remedy the uncertainty of primary rules, the rule of recognition will indicate if a rule of the group is supported by the social pressure it exerts. This can be achieved by referencing authoritative texts that can properly dispose of the doubt of a rule's existence.

To remedy the static quality of primary rules, Hart provides the rule of change. Such a rule would empower an individual or body of persons to introduce new primary rules for the conduct of life of the group, or in some class within, and to eliminate old rules.

In addressing the third inefficiency, the rule of adjudication shall be imposed to determine if a primary rule has been broken. This rule would identify an individual who adjudicates along with the procedures that are to be followed during the adjudication process.

Thus, the union of primary and secondary rules are at the centre of a legal system. According to Hart, for a legal system to be clearly presented in more complex social situations, the rule of recognition is seen as the most important rule, and it can be identified in constitutions, enacted by a legislature, and through judicial precedents.