Primary versus Secondary Rules

Children playing cricket in a lane have rules: over the wall is out, no throwing. But when a dispute breaks out, nobody can prove that 'over the wall is out' was ever agreed, nobody can change a bad rule except by everyone agreeing at once, and nobody can settle whether the batsman was out, so the argument ends when someone takes the bat home. A cricket league has a printed rulebook, a committee that amends it and umpires whose decision is final. The lane has only primary rules; the league has secondary rules as well. For Hart, that is the difference between a pre-legal society and a legal system. His wider theory is in Note 11 and his critique of Austin in Note 61.

1. Two Kinds of Rules

Hart drew the distinction in chapter 5 of The Concept of Law (1961), 'Law as the Union of Primary and Secondary Rules'. Primary rules require human beings to do or abstain from certain actions whether they wish to or not: do not kill, do not steal, pay your taxes. Secondary rules are parasitic upon the first: they provide that people may, by doing or saying certain things, introduce new primary rules, extinguish or modify old ones, or determine their incidence and control their operation. Hart summed it up: 'Rules of the first type impose duties; rules of the second type confer powers, public or private.' He offered the union of the two as the centre of the concept of law, the key Austin had wrongly found in the command, not as a complete definition.

2. The Pre-Legal World and Its Three Defects

Hart imagined a society with no legislature, courts or officials, living by primary rules of obligation alone. Such a regime can work in a small community closely knit by kinship, sentiment and belief, in a stable environment. Otherwise it shows three defects, each cured by a different secondary rule.

Each remedy, Hart said, is a step from the pre-legal into the legal world, and together they convert a regime of primary rules into what is indisputably a legal system (paraphrase). The claim is conceptual, not a history of any real society.

3. The Three Secondary Rules

The rule of recognition

It specifies the features whose possession marks a rule as a rule of the group. In a modern State it contains several ranked criteria: enactment by the legislature, customary practice, precedent. Hart's example for England: whatever the Queen in Parliament enacts is law. By introducing the idea of validity, it turns a heap of rules into a system.

The rule of change

It empowers a person or body to introduce new primary rules and eliminate old ones, and ties in with the rule of recognition, which must then refer to legislation. The rules conferring private powers, to make wills, contracts and transfers, are its close relatives, since they let individuals vary their own positions under the primary rules.

The rule of adjudication

It empowers persons to determine authoritatively whether a primary rule has been broken and fixes the procedure, bringing with it the ideas of judge, court, jurisdiction and judgment. Because judgments become authoritative statements of the rules, it is also a rule of recognition of a sort. With it usually comes the centralisation of sanctions and the ban on self-help.

4. The Rule of Recognition as a Social Fact

Chapter 6, 'The Foundations of a Legal System', explains that most rules are valid because they satisfy the criteria the rule of recognition lays down. The ultimate rule itself cannot be valid in that sense, since no further rule validates it. It exists only as a matter of fact: the complex but normally concordant practice of courts, officials and private persons in identifying the law by certain criteria. It is neither valid nor invalid, as the standard metre bar in Paris is not itself measured but is the standard of measurement. Hart distinguished the supreme criterion, which prevails over the others, from the ultimate rule, which nothing validates. The contrast with Kelsen's Grundnorm is in Note 63.

5. The Internal Point of View

Rules have an external aspect, the regular behaviour an observer can record, and an internal aspect, the critical reflective attitude of those who accept the rule as a standard. Hart's illustration is a traffic light. The external observer reports only that when the light turns red there is a high probability that traffic will stop; the driver who accepts the rule sees red as a signal to stop, a reason for stopping and for criticising those who do not. 'It is the law that' is an internal statement; 'in this country the rule of recognition is' is an external statement of fact. Secondary rules in particular confer authority, which only the internal point of view can see.

6. When Does a Legal System Exist?

Hence Hart's two minimum conditions. The rules valid under the system's ultimate criteria must be generally obeyed by citizens, who may obey from any motive. And the rules of recognition, change and adjudication must be effectively accepted by officials as common public standards of official behaviour. The first condition concerns primary rules and citizens; the second, secondary rules and officials. In a revolution or occupation the two may come apart for a time, which Hart called the pathology of a legal system.

7. Power-Conferring Rules and the Critique of Austin

The distinction grew out of Hart's attack on Austin (Note 61). Orders backed by threats fit criminal prohibitions, but rules enabling people to make wills and contracts, or legislatures and courts to act, say 'if you wish to achieve this, here is how'. Treating nullity as a sanction fails: nullity is part of the power-conferring rule itself, as a ball not crossing the line is simply no goal.

8. Contrasts: Kelsen, International Law and Rights

Kelsen uses the words in reverse: his primary norm directs an official to apply a sanction, and the norm addressed to the citizen is secondary (Note 63). In chapter 10, Hart argued that international law lacks a legislature, courts with compulsory jurisdiction, organised sanctions and, above all, a unifying rule of recognition; it is a set of rules but not a system, resembling the simple regime of primary rules, though still properly called law. Finally, Hart's pair classifies rules by function, while Austin's primary and sanctioning rights, Holland's antecedent and remedial, classify rights by whether they arise from a wrong (Note 90).

9. An Indian Illustration

This is an illustration only: Indian courts have not adopted Hart's vocabulary, and the mapping is a teaching device, not a holding. Read through Hart's lens, the Constitution states each kind of secondary rule in writing.

Two cautions. On Hart's theory the ultimate rule of recognition is not the text of any Article but the practice of Indian courts and officials in treating the Constitution as supreme; the text is evidence of it. And that practice includes judicial doctrine. In Kesavananda Bharati v State of Kerala (1973, 13 judges, 7:6) the Supreme Court held that the amending power under Art. 368 cannot alter the basic structure, and Minerva Mills (1980) made a limited amending power part of that structure. In Hart's language the rule of change is limited, and the rule of recognition includes a test no amendment may fail; some scholars say so, the Court has not (Note 63). Art. 372, keeping pre-Constitution laws in force, illustrates the persistence of law across a change of regime (Note 61).

10. Criticisms

Dworkin, in 'The Model of Rules' (1967), argued that law also contains principles, such as the principle that no one may profit from his own wrong applied in Riggs v Palmer (New York Court of Appeals, 1889), which bind by their weight, not because a rule of recognition identifies them by pedigree. Hart replied in the posthumous Postscript (1994) that a rule of recognition may incorporate moral criteria and is a conventional social rule (Note 64). Commentators add that the line between the two kinds is not clean, since many rules both impose duties and confer powers; that it is unclear whether the rule of recognition obliges officials or merely empowers them; and that the pre-legal society is speculative, though Hart used it only as a device of analysis.

11. The Two Compared

12. Frequently Asked Questions

Q. What is the difference between primary and secondary rules?
A. Primary rules impose duties, requiring people to do or abstain from actions whether they wish to or not. Secondary rules are rules about rules: they confer powers to identify the primary rules (recognition), to introduce and change them (change) and to determine authoritatively whether they have been broken (adjudication).

Q. Why is the rule of recognition neither valid nor invalid?
A. Because validity means satisfying the criteria of a rule of recognition, and the ultimate rule has no higher rule to satisfy. It exists as a fact, the accepted practice of officials in identifying the law, like the standard metre, which is the measure of length rather than something measured.

Q. Is Article 368 a rule of change in Hart's sense?
A. It can be used as an illustration: it empowers Parliament to amend the Constitution. After Kesavananda Bharati (1973) the power cannot alter the basic structure, so the rule of change is limited. This is a scholar's mapping of Hart's theory onto the Constitution, not a holding of the Supreme Court.

See also: Note 11 (analytical school), Note 61 (Austin versus Hart), Note 63 (Hart versus Kelsen), Note 64 (Hart versus Dworkin), Note 90 (primary versus secondary rights), Note 7 (meaning and nature of law).