Transcript of LLB JURISPRUDENCE - LEGAL POSITIVISM 2- HART CONCEPT OF LAW

good morning everyone and Welcome to our jurisprudence class so we are going to look at the part two of our topic our legal positivism now just before we come to this morning's topic uh you'll recall that at our previous class we started treatment of legal positivism having explained uh generally that legal positivism in contrad disension to natural law is that approach to Legal philosophy or the quest to answering the question the nature of the essence of law which says that our emphasis should be on what the law is rather than what the law ought to be so it's more about the empirical reality of the law as opposed to metaphysical abstraction or speculation or supposition regarding what the law ought to be and we made the point that a number of thinkers have actually uh made significant contribution uh towards what constitute the school of thought in jence that we called Legal positivism so we started with the jerey bent and some Scholars may even say that the REM bentum is probably like the father of legal positivism having pioneered such a thinking but that is a debate we leave for another occasion and we recall saying that bentam uh had actually uh look at law uh in terms of uh uh the The Sovereign uh punishment the principle of uh uh utility greatest happiness the greatest number of people and and the philosophic C clus and all that now we saw uh how his approach was crooked in a number of ways in the sense that it was uh uh uh to uh know a lot of rough edges so subsequently uh one of his uh disciples or one of his menst so to speak uh John Austin [Music] will know Embark upon a major work which he titled the province of Juris Prudence determined uh which is one of the uh great uh work in what you call analytical uh Juris Prudence analytical legal positivism and he will actually take the view that uh the way that we use use uh the word law we use it too Loosely in the sense that there are some senses uh which is not actually the concern of jence and as you notice he did his schemata in which he did the breakdown like the various senses in which you deploy uh the word law and you eventually say that it is a certain uh narrow aspect what you call like the law Sly So-Cal uh which is the domain or the provin of Juris prudence and Austin we also noted like his uh Mentor or his Godfather who to speak J bentam also look at law from the point of view of the Sovereign uh commands back by sanction so all of them bam Austin they are all consider what they call the command theory of law because they look at law as a command of The Sovereign back by sanction or punishment and uh but we saw that uh how Austin's uh look at law was also very limited in the sense that his theory could not provide a satisfactory uh explanation for the entire Enterprise or phenomenon of law but but only the criminal law aspect of Law and in fact if you having to follow uh Austin to his logical conclusion he will say that uh international law for example is even not law because he has look at it from the point of view of the Sovereign and in his view uh there's no uh Sovereign international law whose commands are backed by sanctions so these were the ideas uh which we uh discuss at our last class when we discussed legal positis part one so this morning we are going to look at two important uh proponents or contributors to Legal positivism uh hat and then Kelson uh so hat uh his full name is heret lle adus hat uh a very uh no for for names or we simply say h l heart now h l heart uh was a British uh legal philosopher he was based at the University of Oxford and he is reputed as one of the uh most important or influential legal thinkers or if you like legal celebrities when it comes to uh Juris Prudence of the 20th century he did a meor work uh which we call uh the concept of law and the concept of law is a book which every student of jence or legal philosopher is familiar with and that is why because we are good friends I've gone to the sent of getting a PDF and sharing the pdf version with on your platform of course the hard copies are also available in the library so I encourage all of you to read the whole of the work of uh heret Lonely adul Hearts concept of law it was published in 1961 now in heart concept of law he begins his work by reflecting on what you call the persistent uh questions of Law and so the nature of law according to heart has been a persistent and complex question in legal Theory so that is how he commences his work and he acknowledges that uh the this uh nature of law has generated diverse and uh often paradoxical or contradictory responses from uh jurist that is various uh Scholars of jence or legal philosophies and heart makes a point that unlike other disciplines where foundational questions are relatively straightforward law has resisted simple definition and you've made this point before when you are Lear learning uh history uh you be told about all the various definitions out there when you are learning economic when you are learning uh Science Biology physics chemistry uh you'll be given uh some definition which uh to large extent uh will be universally CLE but then when it comes to law uh heart in this concept of law we acknowledg that uh law has resisted simple definition so the question what is law has invited or elicited uh vast responses and for that matter V literature out out there now these responses uh have different uh perspectives or different uh point of view uh with respect to essence of law with respect to structure of Law and also the relationship between law and society and in heart thinking this ongoing uh debate that is attended by various Scholars or thinkers to app some responses uh to uh what is law r that law is not only a set of rules or commands but encompasses broader issues that have become focal points in Juris Prudential inquiry so you notice that right at the very outset of his work if you look at the chapter one of his work heart is actually shooting the command uh theory of law because he's saying that there are so many other brother issues which have not been factored into the calculus or into the thinking of those who uh postulates the command or the imperative theory of law so uh hats identified what you call uh fundamental questions that confront legal Theory so he identified what he called the ORD backed by threats and here certainly a had was uh referencing uh John Austin who had conceptualized law as a command issued by a sovereign backed by thre of punishment which we discussed as a topic in our previous class and as we uh noted uh this command uh Theory actually approaches law in terms of cive orders cive orders or uh an extension of authoritative commands of The Sovereign uh which is enforceable through the threat of sanctions or punishment as uh it were so art knows that if you look at law from this point of view then Law's Essence lies in his power to compel obedience through potential penalties so he use the phrase so law become like the uh no gun man at r large or much like an an order issued by a gun M to a victim that is to say that if you follow the imperative y then you reduce law to like maybe somebody holding a pistol right in his hand and giving uh orders raise up your hand or don't move otherwise I shoot or lift up that thing otherwise I shoot you know the things that you see in action movies you know when uh somebody comes and uh gun attack so heart is saying that if you follow uh the notin uh know command Theory and all that then you are effectively reducing law to an order which is issued by a gun man to a victim yes to a large extent he acknowledges that that is a a reasonable explanation to the branch of the law we called criminal law as you know in criminal law the penalties are clear in forceful as we know from Article 19 of the Constitution which says that no person shall be what uh punished for a crime unless the crime has be defined in a written law the punishment prescribed by it so that is fine however in her view this approach fails to explain Law's broader Dimensions particularly in civil matters uh we talking about contracts we talking about thoughts and so many other civil law areas where compliance uh often arises from voluntary adherence rather than fear of punishment so people comply not because they're afraid of a punishment of going to prison or paying the fine but because uh they have either you know signed up to something like especially in contractual Arrangement as it were then he also uh flag um law and morality and he is concerned that the relationship or the connection between law and morality has also been problematic so far if you look at the various responses which schols have given to the question what is law so H would that historically natural law theorists have argued that law derive its legitimacy from its alignment with moral principle and we've seen this uh from the various discussions that we did now this contrasts with legal positivism as we saw last week which maintain that law and morality are distinct so law does not need to be morally just to be valid but heart will acknowledge that as legal system frequently overlap with moral standards uh prohibition against mea theft and other you know social apprehensive behaviors for example there is a temptation to see law as intrinsically linked to moral values in other words if you look at certain you know criminalized Behavior such as Meda theft uh rap defilement uh on natural Canal knowledge especially having regard to Ghana legal system where we have still criminalized it uh now if you look at those offenses on their own there's no doubt that they reflect significantly morality and because they reflect morality there's that temptation for us to equate law to morality so that is a point that heart is trying to uh you know to talk about so he acknowledges that yes the ongoing debate the various responses by various proponents or jist uh to the essence or the nature or the structure of law uh is a reflection of the difficulty we have in trying to distinguish legal obligations from moral obligations and that in itself raises questions about the foundation of legal Authority is legal Authority uh drawing this strength from uh moral Authority necessarily so that can we say that without the moral Foundation then legal Authority or collapse so that is what heart is inviting and it's important we follow uh his reflection on this persistent question what he's trying to do is that heart is trying to acknowledge that yes I'm not the first boy on the Block before I arrive on the Block there are so many other people before I arrive on the scene other important thinkers have come and have made the noble effort to try engage the question what is law but then uh when I reflect on all this sponsors I see major pitfalls I see major deficiencies and and those deficiencies need to be acknowledged before we can uh chart a new uh path forward and in fact that is a homark of proper scholarship and that is why when you're even doing your research okay you're doing your research as a as a student you don't just uh start writing anything because don't forget that the world has been there thousands of years or even some know scientists would say that millions of years before we appeared so other thinkers have come so you need to acknowledge that and that is why there's what we call the literature review isn't it you try to find out what others have thought about whatever you are interested in looking into and you try to demonstrate that yes this is what they have done but you see some limitation or you see some gaps here and that will provide the the the pedestal or that will provide the platform for you to also m whatever you are going to do and that is exactly what heart is trying to do uh in the opening uh phase of his work when he explores what he calls a persistent question of legal Theory now he also identifies the role of rules in law now Hearts knows that legal Theory grapples with the nature of rules and whether law is fundamentally a set of rules so is law a set of rotes or what that's what he fondering so both the command Theory and uh moralistic views that is the natural law View views acknowledge that rules are Central to law but they diverge on what constitute a rule and how rules function within legal system so what constitute rules which they all acknowledge as being important and then uh what is the function of rules within legal system for some legal rules are clear Direct that guy behavior and for that matter it has intrinsic Authority on its own it has an inherent Authority on its own others also argue that rules are not absolute and often require interpretation and this will lead to judicial discretion so later on there's a scholar we called ran Jin join we definitely I'll be read along this lines that rules are not absolute rules often require interpretation and because only requires interpretation it give rise to judicial discretion courts when interpreting rules of president frequently face ambiguities like pH situations face DS uh giving rise to more than one possible sense or one possible way of viewing matters so uh there's the some judicial choices which will have to be made and that suggests that rules are not self enforcing or purely objective in other words heart is saying that if you look at rules out there rules do not enforce themselves rules requir interpretation and if for nothing at all uh those of us uh in Ghana there a a very uh simly uh simple role in our uh constition in our 1992 Constitution how it has given rise to so much trouble in the whole of the country and I'm referring it to 97 let me open my contion yes uh article 97 cluse 1 paragraph G which states and I quote A Member of Parliament shall vacate his seat in Parliament J if he leaves the party of which he was a member at the time of his election to Parliament to join another party or seeks to remain in Parliament as an independent member or H if you was elected A Member of Parliament as an independent candidate and joins a political party so you see uh this provision what does it mean you see how it has planned a country of over 30 million population uh into various discourses everybody trying to tell us what he understands by this uh know provisions and that reinforces the point which uh heart is trying to identify that if you look at rules they are not self enforcing or purely objective instead rules exist within a framework where contest that is environment the surrounding where context and interpretation ship the application so that in itself in has view highlights a tension between seeing law as a f set of rules versus a flexible system shaped by social practices and you know like this particular example that I gave may not be the best example but at least it help us relate uh know to to draw some connection between uh reality and the theories that we are learning uh so you look at people are now appealing to uh history uh regarding what has going on in par in our Parliament since the coming into force of the Constitution what some people have done uh regarding uh either know people uh going independent or independent joining political party and so on people appealing to that and others appealing to travel prep uh legislative history that yes go back to the consultative assembly proceedings uh what did they mean what was the back drop for these Provisions look at the committee of experts uh what did they say uh regarding this you must look at the history or must we also uh look at you call the contemporaneous exposito that we look at the Contemporary situations to try and give exposition to this interpretive matter so these are some of the matters which heart is trying to draw attention to at the very threshold or beginning of face work so he also identify common perceptions and theoretical complexity so Hearts will say that well despite the complex theoretical debates going on among jurists or students of legal philosophy most people can readily identify examples of law maybe such as prohibition against Meda or regulation concerning contracts and if you look at the point of view or the perspective of lay people lay people as those who are not uh jurist you notice that it often align with a practical view of law as a system of rules govern Behavior within Society so for those who have not actually settle themselves with too many comp complications and complexities as legal philosophers would do but they come to law from the point of view of just like as a lay person lay person as like someone who is not initiated into the nuances of a legal theory for them they see law as just a system of r Behavior within Society so people recognize that laws are created interpreted and enforced by specific intution such as the legislature and the courts and that give law its structure and Authority but hat points out that when Scholars attempt to Define law comprehensively when Scholars attempt to adopt overing explanatory theory of law then they encounter ambiguities they encounter ambiguities uh in the sense that they are not able to get one size fit all like one definition or one explanatory framework which will hold valid for all dimensions of the issue and and and in fact there are edge cases or what we call like the penum cases like penumbral cases or what we call the gray cases right that complicate these everyday understandings for example uh the example I gave from Ghana if you look at our 199 1992 constition 97 cluse one paragraph G and H which I quoted I quoted we we have some sort of probably I well Supreme the matter is sub judic so very uh little can be said about that but just uh exercising academic freedom and not using any judicial uh mandate or lens I mean it suffices to say that we see some uh a bit of like a gray area a gray area in the sense that you have uh people uh who are MPS uh uh the parliament is in session on the floor of parliament uh as far as uh what we are reading from the new sellers there's no evidence that uh the four affected the MPS whether any of them have actually uh know moved to join uh a different political party from that on basis of which he was know elected or if the person was uh elected as independent uh he or she has actually joined a political party on the floor of Parliament and then in the proceedings and operations of parliament at least the narrative coming from the media regarding the development in Parliament does not tell us that now so if but then what we know is that these uh affected MPS they have officially invin an intention to run as independent or if they were elected independent to run on the ticket of a certain political party now that is the gray area which it presents now the story will be different if for example uh on the floor of parliament the work of parliament uh they have uh crossed carpet as uh the the term is actually used and that is the know the the penum area the gray area which uh uh heart is talking about so uh and then he also mentioned the cases like international law C practices we challenge standard definition because they lack some Futures typical of Municipal legal system be such a central Authority enforcement mechanism so if you take international law yes uh as Austin also pointed out and other Scholars that uh it's difficult to reduce uh international law for example with the uh know working structure and operation of Municipal law as he has just told us yes we we have the legislature which makes law we have the Cs which I know enforce them interpret them and all that now if you go to uh international law is not that simple because as you have noticed even where a treaty is made depending upon the particular uh philosophy ining a municipal legal system a theory which has a treaty which have been signed by a country may not be self executing it may not be immediately applicable in the legal system especially if the the country practic dualism which Ghana is an example so we have to look at this 75 75 our contion and all that where uh the government signs a treaty it has to be domesticated by Parliament as it were before it will have binding effect within our legal system some other Municipal systems that may not be necessary because they subscrib monism that when they sign a treaty has immediate application so even within the context of making of law on International play you see how we have complications and and that is a point being made that yes uh you may not be able to apply uh the theory that you build uh on domestic or Municipal legal system to explicate the phenomen the phenomenon of law on the international plane and again if you're even talking about this command uh Theory and all that yes international law who is there to enforce it look at what is happening now in the world uh we have the law against the use of force that no country can militarily intervene in the Affairs of another you know except where it's for legitimate selfdefense and so on and so forth but look at what is going on in the Middle East look what is going on in the in the Russia and Ukraine and then we are told that North Korean soldiers are also joining uh the war then people talk about it but what can you do so there's no one to actually enforce it if you attempt to uh raise yourself as a policeman of the world then other countries may also want to confront you like we see United States which for a long term used to project your as the policeman of the world so to speak how other countries have recently you know also sought to resist that by trying to push for the socalled multipolar world as opposed to unipolar World we've had the times in which we used to have a bipolar word the East and the West us and then the USSR but then the USSR collapsed and I with the USA and after many years some other emerging Powers know Russia and China also feel that we shouldn't have a world in which we have like one strong country know which behaves like the policeman of the international law you have like a multipolar one so this is some of like the evolving like debates which is going on so uh hats points out that the debate around laws nature is not limited to identifying its characteristics but also involves understanding uh the function of law within Society what is the function of law is the rule of law so some theorist argue that Law's purpose is to maintain order through deterrence why others believe that it should foster Justice and social Ware so you notice that when it comes to the proper role of law in society uh is not that uh simple there are Divergent of U opinions uh so uh to speak and these uh deferring uh opinions on whether law is fundamentally coercive that is as a deterant or aspirational that is encouraging us what we ought to do you uh all have the aim of trying to encourage socially beneficial Behavior rather than merely imposing benefits for I mean penalties for misconduct so hard SS is up all that there are three persistent issues in defining law so having a acknowledge the know the state of uh juristic thinking as far as the question of what this law is what people have know attempted to do so far the various natural natural law schols and then the command theories and so on uh heart will try to uh uh problematize the situation and say that that are three persistent issues in defining law and in his view if you look at uh the work of various legal theories uh they often return to three Central issues namely uh relationship to commands how does law differ from commands backed by threats so and this question defining future of legal system is it really really correct to insist that if you want to define a legal system without the element of question then you cannot really Define Li system so that is one issue then the other another issue is the Moral Moral obligation legal obligation how does legal obligation relate to moral obligation and with respect to this hats raises the issue can a law be legitimate if it lacks moral grounding is a validity of law dependent upon its moral legitimacy and thirdly rules and legal interpretation to what extent does law consist of rules and how does judicial interpretation affect the stability of this rules so these are the persistent issues which uh know confront uh Scholars as they attempt to make sense of the nature of law so these questions uh to hatman have shaped much of mod jurisprudence as each of the three question you've pointed out reveals essential aspect of laws function and structure but the challenge in Hearts view lies in developing a theory that can address these three issues these three issue namely uh the relationship between uh law and commands especially the the issue of uh C whether C is a necessary component of law the relationship between moral obligation and legal obligation can legal obligation stand on its own without moral foundation and thirdly the relationship between rules and legal interpretation uh are rules are self enforcing are rules objective so that they can just work on their own or there's a need for interpretation uh to be done and if there's a need for interpretation to be done how does that affect stability of the rules how does that ensure certainty and pred predictability of rules so these are the matters which uh heart would say lie at the heart of any meaningful effort to try and uh propound uh a theory or framework which will explain uh the Enterprise of law so heart will proceed by attempting to provide uh definition to what is Law and challenges which are associated with those uh uh efforts or those attempts so in his view efforts to Define law typically fall short because they struggle to encompass all its aspects so the reason why no we've not been successful in trying to Define law is that we try to have a uh know a fully self-contained one siiz fit or approach so we try to get like a master if you like definition which would apply which would address uh the whole G of law as a phenomenon and that is a challenging so traditional definitions based on rules or authorities in harv are often too narrow and they fail to capture Law's Dynamic nature and this relationship to social practices so you give example that defining law merely as a set of rules uh defining laws merely as a set of rules uh presume that these rules are static and uh ambiguous uh and that is uh really the case in practice in other words if you take the view that yes law is a set of rules the problem is that such a way of defining law is making assumption that the rules do not change they remain fixed they are the same and two the rules have settled meaning they don't give rise to more than one or two meaning or understanding and H says that in reality that is not the case law often requires interpretation especially in areas with ethical implications such as constition law or human rights so you cannot do without interpretation when it comes to for example uh human rights let's take article 17 of the 1992 Constitution Article 17 of the 1992 Constitution talk about and then the rule against discrimination isn't it all persons shall be equal before law then Clause two A person shall not be discriminated against on grounds of gender race color ethnic origin uh religion Creed or social or economic status unquote I'm just going to give you a very simple but uh uh quite uh deep you know example where article 17 CL says thatan Creed religion and Creed and so on should not be a basis for being discriminated against now when it comes to religion do we have any uh standardized definition of what count as a religion so that if someone is seeking to profess something can we say that no this one it doesn't fit our understanding of religion so we not recognize you as being adherent of that religion you professes so as not to be discriminated against do we have any y if you read uh is it the case of the it from criminal law remember uh those who were cultivating the Indian hemp and so on and they say that well they use it for their uh worship or or their way of life so if for example you have a law which says that yes Indian hemp or marijuana or cocaine or whatever is an acced drug and it is Outlaw and well somebody say that well for our religion uh we use it for purposes of incensation we put it in the fire and the smoke will come and then we heal it and that is how we are actually worshiping so you see the difficulty and it reinforces a heart's view that interpretation is inevitable so you need to interpret so let's say leg in arle 17 it will have to fall for some interpretation at some point isn't it if you look at the case of the is it the T what what is the name is it uh this a r um t the r the the Rian boy at aim uh we these issues actually know come up every now uh and again as it were and even uh now you take uh article 17 again there's a reference to uh gender isn't it that shall not be discriminated against on basis of gender now gender for a long time was seen as binary binary in the sense that it's either or you either a male or female but uh the last uh two or three decades of I'm looking at the practices in some other jurisdiction I've brought up some other uh possibilities so uh what is the position of the law is it still the binary uh male female or what yeah so these are the points heart is addressing so some jurist propose definition that focus on Law's role in organizing social conduct and distinguishing it from other social norms through its formal structures and enforceability now heart will say that that is interesting however such definition still encounter difficulties especially when addressing edge cases gray areas pumber areas like international law custom practices which do not fit neatly into standard legal categories but still perform similar regly functions within societies so if we take like C law for example if we take 11 of our contion what is C law uh rules which by custom are applicable to particular communities in what in Ghana so how do you even uh identify uh that custom law has crystallized regarding a particular matter in a particular community so having considered the efforts which have been made by various scholar who try and Define law and uh shortcomings associated with that heart says that there's a need for a break there's a need for a fresh start there's a need for a nuan understanding a more detailed understanding so rather than seeking a strict definition uh some Scholars argue that legal the will focus on understanding law Central elements so its structures norms and functions without insisting on any rigid uh classification and that is why hat in his concept of law will suggest that a legal system can be better understood by analyzing the interplay of primary and secondary rules and these primary and secondary rules uh so we tell like the primary rules they govern behavior and then the secondary rules they establish mechanisms for creating modifying enforcing laws and that is why heart will go on and say that a legal system properly understood is a union of primary and secondary rules so this approach of going about the matter in heart view allows for flexibility and it's also an acknowledgement that law is not merely a set of commands or moral directives but a complex institution that evolves with Society law is not static Society is not static Society is is in flab it's Dynamic and and law must also follow Su so um hat uh makes the point that uh when we examine laws structural components and this relationship to question that is false and also morality uh in that way legal Theory can make progress uh toward a more comprehensive understanding uh which reflects Law's multifaceted nature so law is not unidimensional law has not only got one aspect law has got so many many aspects so many so many facets and it is only where we examine uh law structure Visa the relationship between uh force imorality that we can appreciate uh this multi multi-dimensional or multifaceted nature of law so this view in her uh opinion recogniz that laws Authority arises from its acceptance by Society not from its alignment with moral uh principles or its capacity for enforcement so he's gradually gravitating to what they call his uh uh separation of Law and morality thesis so to Heart law considered in this way is a social intution shaped by in responsive to human values and needs continually balancing order Justice and individual rights so that is in the N if you you you look at law from this uh broader you know uh perspective what you see to be is a social intution yes and this social intution is not uh neutral it is rather uh dependent on human values human needs and it ISS to strike a balance between order Justice and rights of individuals so what is the Takeaway on uh persistent questions of defining law by heart the take away may be stated as this that the question what is law uh has remained unsolved for a long time and even not just up to the the time of heart and we would say that Beyond heart is so not so due to laws complexity and the varied functions that law performs so on that basis how to say that why lay perspective when we say l perspective that is those who are not jurist why non jurist perspective often focus on practical examples as you saw legal theory on the other hand deals in the fundamental issues which is to reveal Law's mod defaced nature so to heart mind in order to address these issues there's a need for an approach that transcends or go beyond simple definitions which will recognize law as both a system of rules and a social institution so law is a system of rules and social intution uh which is intertwined with morality Authority and societal needs now if you use this uh brother or Nuance approach in understanding law it has the advantage of eliminating or uh helping us to appreciate the Law's role within society that law is not a static entity but a dynamic process law does not stand still just as Society does not stand still Society is ever changing and if Society is ever changing the law also adapts to the changing social values and expectations yeah so having know discuss this General issues in the opening of his work uh heart will go on to try and look at how uh Austin's command theory has given rise to uh what he is talking uh about so uh heart has already talk about the fact that a law should be seen as a system of what of rules so he identifies uh primary and secondary rules and this categorization of uh law or being rul in the primary and secondary rules uh reflects has view that legal systems consist not only of Behavioral directives but also of rules that regulate the structure and operation of the legal system itself so legal system does not only tell the citizens or the people what they have to do or what they don't have to do but it also tells us about the law telling us what to do or what not to do how is that law change how is that law interpreted so now let's say a few words about the primary rules when has talk about Prim rules in his concept of law these are rules that impose duties by prescribing or prohibiting specific behaviors and they serve as fundamental Norms that regulate conduct within uh Society so example of ramies who include prohibition against theft so look at section uh you know uh 120 121 122 124 the offense against the stealing know the sers receiving and so on uh the offense against the falsification fory uh rap defilement Meda uh these are all uh examples of primary rules or when it comes to contract uh the rules on uh no elements of let's say a valid simple contract you needer an acceptance offering acceptance and uh to need to be supported by consideration except where consideration is excus by specific provisions of the contract act and act 25 or you come to uh the law on deformation in thought that you are not supposed to uh publish know false information which will lower the reputation of another person within the estimation of right thinking members of what Society so these are all examples of primary rules and heart argued that these rules are necessary but they are not sufficient for a developed legal system because primary rules alone cannot address all contingencies or changes ambiguities so if you have primary rules which tell us what we should do and what what we should not do that is fine but according to Heart uh even primitive Society uh societies without uh sophisticated legal system they all have that so that alone is not enough you still need something more before you can have a fully developed legal system so give you like a example now let's take uh if we take uh let's say in UK for example for a long time uh on natural Canon knowledge was a a serious criminal offense in the course of time is no longer offense so you see the primary rule has changed so how did the change in the primary rules Come about there must have been another rule which govern how changes can be made in the primary rules or if there are ambiguities in the primary rules how they can be interpreted and all that or you take the offense of let's say attempted suicide in our country Ghana to it was an offense but just uh within the last two years is no longer what an offense so there has been a change in the primary rule so another law Parliament will go through the know the legislative process article 106 and all that will be invoked then you're able to bring about the change in the existing primary Rule and that is why is saying that the primary rules alone are not enough you need something uh else so that provides the basis for his suggestion that to overcome the you know if you read his work he will make the point that to overcome the the fact that primary rules are not static the need for a change they need for interpretation and all that then you need a secondary rules so the secondary rules soal secondary because they are rules about rules so the secondary rules are rules about the primary rules so they provide the framework for creating modifying interpreting and enforcing primary rules and these are essential uh for function of a complex legal system so you take I know I give you a typical example you take the Evidence Act of Ghana 1975 NC decree 323 and then that legislation is supposed to tell us how evidence may be received to prove or disprove an allegation so uh that is not a primary rule that is a secondary rule because if you are for example alleging that someone committed stealing you need to bring evidence to establish the guilt of the person Beyond Reasonable Doubt now what is acceptable ining the guilt and what is not acceptable you need another rule to help us to determine that so for example exle uh the case the sueme court decision Rafael kuel will tell us that as a general rule where you secretly recorded the person without letting the person be aware that recording may not be admissible as a uh know valid or good evid evidence in a proceeding maybe except where you can bring yourself with some exceptions like maybe prevention of a crime and so on maybe such as maybe ter terrorism and so on so uh these um secondary rules according to Heart address the limitations inherent in primary rules so the limitation we saw like the fact that uh the primary rules may be static the primary rules may be inexact inexact in the sense that uh they may need to you need to determine whether it covers a particular situation or does not cover a particular situation which call for interpretation so the secondary rules actually uh address the limitations inherent in the primary Rules by enabling possibility and adaptability within the legal framework so there are three essential types of secondary rules according to Heart these are one rules of recognition so rules of recognition is a subset of a secondary Rule and they serve as a foundational standard within a legal system as they provide a criteria for legal validity now in other words we need a s to help us to understand uh which uh form part of the primary rules and which does not form part of the primary rules so the rule of recognition allows Society to distinguish valid legal Norms from non-legal social norms or customs and on that note it acts as a benchmark for legal Authority and determine what is recognized as law in a given Society so a typical example is AR 11 of our constitution if you look at article 11 of 1992 Constitution uh this is uh what it says and I quote or maybe you can start from the the chapter 4 which is head the law of Ghana the article 11 says that quote the laws of Ghana shall comprise a this Constitution b enactments c any others rules and regulation D existing law and E the common law now so if anything is being put forward as a law in Ghana we must be able to subsume it under one of the various sources of law La adamated in article 11 which I just quoted if it cannot be subsumed under any of those categories then it is not part of the laws of Ghana so to speak and that is what the rules of recognition is telling us so it helps us to know that which forms part of the valid legal norms and that which does not then rules of change these rules authorize individuals or institutions to create modify or repe laws so they enable the legal system to adapt to evolving societal needs changing values and new circumstances and that ensure that laws remain relevant and effective over time so if you take our contion again you take article 106 of the Constitution it tells us how laws are made so we use the same procedure for uh making laws to also change or amend law so say for example become like example of the rules of change and again if you look at the I think chapter 20 chapter 25 Amendment procedure let me look at my contion yeah chapter 25 Amendment of the Constitution so uh we are told if you if you look at that's s famous dictum in the line case of to4 attorney general that the constition of ours A is not a static what document it is dynamic it's a living organism it mirrors the aspirations and fears of the people and so on and so forth and that we need to keep adapting it we need to keep uh making it uh be relevant to the evolving needs of of society and that is why the frame of the contion in the wisdom have actually provided in chapter 25 of the 1992 constition that yes the Constitution can be amended so long as you bring yourself within the amendment procedure so we have entrenched uh Provisions so if you look at AR 290 uh that this article applies to Amendment to the following Provisions which are in this contion referred to as entr Provisions then they are listed then we also have uh amendment of uh non entrench uh Provisions uh over there so if you look at the article 291 uh it provides the framework for Amendment of the non- entrenched uh Provisions so uh all these are examples of um the rules of change secondary rules within heart concept of law then the third uh secondary rule is the rules of adjudication according to hat uh these Empower courts and other legal institution to resolve disputes and interpret loss so rules of adjudication establish the procedures for judicial decision making and Grant specific individuals authority to enforce and apply the law so if you come again to our legal system we have our uh know C structure the Constitution and the cause act set up the C system the hierarchy of the cause expi Court of judication supreme court court of appeal High Court the lower court or the inferior courts SEC courts district court and other adjudicating bodies like the judicial Committees of the House of Chiefs and all that so these are all uh as a result of the rules of adjudication and again when it comes to the court themselves apart from they being set up as institution uh how do they function how do people bring their cases within the court we have rules uh which govern that so even if you are talking about the Supreme Court you want to take your case there you should be able to get the appropriate rule which will enable you to do that so we have the Supreme Court rules uh 1996 yeah6 so if you look at the you know the the long title to say that in exercise of the powers conferred on the rules of Court committee by article 33 cl 4 and cl 3 of article 64 and cl two of article 157 of the Constitution these rules are May then uh they will tell us about the various things uh which one need to pay attention to if you want to bring a case to the Supreme Court again uh if you want to bring a case to the court of appeal we also have our rules so the same uh so we have the C appe rules 1997 C9 as amended so in exercise of the powers conferred by the rules of Court committee by 157 vers2 of the Constitution these rules are made in that order now if you come to like the high court the high court to has got his own uh rules what you call the high cour civil procedure rules 2004 CI 47 so again uh if you read the long one in exercise of power is conferred on the rules of commit by CL one33 and 57 these rules are made again if you go to the district court The District Court we have the district court rules of 2009 CI 59 is also made by the rules of Court committee uh and not only that then we've also mentioned the Evidence Act The Evidence Act is also part of the rules of what adjudication and not only that we have the interpretation act the interpretation act uh 200 9 act 792 uh so if you read a long title of the interpretation act for example it read and not to revise and consolidate the law relating to the operation construction and interpretation of enactments and for related matters so if there is ambiguity or if you want to know the meaning of any uh word which is not ordinary used in any enactment your first uh point of call your first point of call is the interpretation act you have to look at the interpretation act good so I mean there's no we cannot uh know actually disagree with hearts with this secondary rules of uh secondary rules and they allow us to have law to be properly organized systematically developed and also so adapted to social and political context of a given society and again refer you to the uh to force decision and the dictum of jce so yeah so uh the rule of recognition which we have talked about within heart's uh work is uh quite uh you know fundamental in understanding legal Authority and validity the rule of recognition uh well he would say is not the written law but the fundamental criteria within a society that uh validates and legitimize legal Norms it is a rule that enables citizen officials to identify what count as law but as you notice in a more uh developed mod system you definitely have the r of recognition being in some form of writing and that is what we have endeavored to do by giving instantiations or examples from our legal system Ghana so in house uh framework the rule of recognition has two essential functions uh that is one of uh uh validation and then uh Unity uh so uh validation establishing legal validity of norms within the legal system and we've given various example the supremacy of our constitution for example if you look at the article two of the Constitution and also article one cl two of the Constitution and then you look at the uh article 11 which we mention it also serves the function of unity it provides a unified standard within the legal system and which is essential for maintaining coherence and stability the rule of recognition uh to heart also relies on acceptance of officials who enforce it so you argue that a legal system exists only if there is widespread adherence to the r of recognition among legal officials and they shared acceptance is what underpins the authority and legitimacy of the law and that is why you know I give you example from what is going on in Ghana that is why some people would say that if Parliament for example decide to ignore the Supreme Court then uh they have put themselves on the trajectory of collapsing Ghana's democracy and everything we are doing in Ghana is actually useless because if uh the various organs would like to disregard a primary allocation of mandates then there's no point of having democracy we should as well let whoever can take over the the governance of the country take it over because democracy has failed and that is why uh you know no matter we may disagree with of course as a know as judges you even sometimes uh uh give uh decision but you need to be true to your judicial o look at the laws of the country and evidence before you and in your heart you may not necessarily agree with it but it's not your heart which is deciding the matter it is what the laws of the country that you have sworn to do and then the evidence that you have before you is telling you which you are following so it's not your private opinions it's not your religious convictions and all that uh which you are doing as a judge if you wanted to do that then you have to go and do some other job but for Fidelity to your judicial o you look at the laws of the country as by your training and understanding you understand it and I look at the evidence and then you apply your mind to it and you reach one determination or another so that is the know the quintessential aspect of adjudication but that being the case uh decisions will come which uh equally brilliant uh legal brains May disagree and that is uh fine because uh we don't have Perfection among human beings in society is not perfect and our our organs and people who mind them to are not perfect that is how it is but then if for example we have a situation where just like what we had at the during boier time uh Salah remember the famous salab is attorney general and then the early morning broadcast uh when the uh the prime minister at the time actually had the uh broadcast try and uh know castigate the the court for giving a decision uh which his government disagreed with I mean that is actually a low M for democracy uh you take the United States for example uh know Biden wanted had a certain initiative and that initiative was actually struck down by the Supreme Court yes Biden was not happy with it but all that he could do was hope that there could be some changes to how the Supreme Court is actually constituted their duration and all that but those things are just his wish wishful thinking or his desire he would like to fulfill in future if the society will accept it but doesn't mean that he's saying that I will not uh obey or follow what the Supreme Court said no so I think that that's the same point that we should note in our country yes otherwise democracy collapses and that is why heart is saying that uh the legal system exists only if there is widespread adherence to the role of recognition among legal officials so just like uh judicial precedents and all that the various levels of Court uh have to acknowledge if there's a binding precedent if it cannot be distinguished from the case before them then it's binding regardless of the fact that they don't agree with it because of the rule of what recognition and then the various uh law which we have set the parameters the boundaries the margins of what can be done what cannot be done all those things must be respected by officials but as H says if officials uh decide not to adhere to the ru of recognition then that will be the collapse of the legal system so it is this shared acceptance is that underpins the authority and legitimacy of the law because all of us accept that we have supremacy of the Constitution all of us accept that we have uh the laws of Ghana we have the various rules and procedures we have the instrctions those are the which give legitimacy to the law so my dear students I would like to advise you some of you may want to become politicians or some of politicians when we are speaking about legal matters all the time because of you are training as a lawyer speak as a lawyer don't speak from political coloration whether you are NPP or your NDC or you are Afra or whatever we don't care what we care about is the law so we are not lay people we are legal people so the rule of recognition uh demonstrate has shift from V law as external commands to understanding it as a social practice that requires internalization of Rules by those within the legal system so uh two uh points have come up um the internal and external point of view so that's another thing that heart discusses in his concept of laws let's quickly say a few things about it as we gravitate towards the conclusion of his concept of law now heart introduced the internal and exteral point of views to distinguish between those who see law as binding and those who observe law without commitment so these perspectives are important because they provide insight into how individuals interact with and perceive legal rules so what does he mean by the internal point of view the internal point of view is held by individuals who accept law as binding and view it as a standard of conduct uh for them legal rules are normative that is they impose obligation and create expectation that is why we say that they are normative they impose obligations and create obligations create expectations now those who adopt the internal uh perspective or point of view recognize uh legal rules not just as external commands but as guiding principles that they voluntarily follow it's not like somebody you know uh imposing something on you but something that you have internalized for example if you read his his original work you use the let's say the traffic light uh example okay the no the traffic light when it is red we stop when we stop we stop not because we are thinking that the police will arrest us or the camera Maybe to some exent for some people but by and large that is not really the point that how to say that we have internalized we have become so accustomed to that it is weave into our fabric that we accept it as the proper way to behave without even questioning it so that is the internal point of view that he's talking about and not that maybe there's a polic man know hiding somewhere uh ready to uh probably issue a ticket or arrest so this way uh that is internal point of view in her thinking is essential for the function of a legal system as it reflects a sense of obligation among citizens and officials so uh let me give you example we have the executive arm of government right if you look at article 358 of the Constitution the executive Authority has been given to let's look 58 of the Constitution 58 somebody read it okay so uh if you look at article 58 it says and I quote the executive authority of Ghana shall vest in the president and shall okay uh James CO's hand is up okay James read for us yeah my Lord yeah article 58 of the 19 tion 1992 Clause one the executive authority of Ghana shall vest in the president and shall be exercised in accordance with the provisions of this constitution CL two the executive authority of Ghana shall extend to the exe execution and maintenance of this Constitution and all laws made under under or continued enforced by by this constitution CL three subject to the provisions of this constitution the functions conferred on the president by Clause one of this article may be exercised by him either directly or through offices subordinate to okay all right thank you please jump to article 181 as 181 or let me see no or even or even no let's even start from I'm just I'm just giving uh certain examples let's start from 1 uh 1741 just 1741 then when you finish yes 1741 please pay attention 1741 article 1741 plus one no taxation shall be imposed otherwise than by or under the authority of an act of parliament okay so hold on don't lock your mic you see we cannot run a country without uh public Revenue that is from tation but we are being told that when it comes to taxation it is only by Act of Parliament that it can be Liv yes you are elected the president you have the executive Authority by of 58 that we we saw your appoint ministers will help you and know that then they all working for you but you know the president and his government cannot start collecting taxes without Act of parliament the president is government cannot uh wave or forgive taxes without uh Act of parament and that is why uh heart is saying that the internal point of view is essential for the it reflect sense of obligation among citizen officials yes look at recently when Parliament agend uh in no indefinitely you see how the the ruling uh party is uh pushing hard to try and get Parliament to be recalled why because if Parliament does not uh go into session the the function of government to a large extent will come to an end when it comes to uh uh loans when it comes to so many other things certain appointments so look at uh article 181 for example article 81 cl1 article 181 cl1 yes made by a resolution supported by the votes of a majority of all the members of parliament authorized the government to enter into an agreement for the granting of a loan out of any public fund or public account now go to clause three clause three 181 clause three no loan shall be raised by the government on behalf of itself or any other public institution or authority otherwise than by by or under the authority of an act of parliament good so all these provision you know tell us that the authority of government cannot be exercised meaningfully with without uh Parliament uh making the appropriate laws or passing the appropriate resolutions as the case may be and it's also part of like the point of the part of the internal point of view so officials should actually recognize that they have uh limitations they need to depend on some other instiution before they can function so just imagine if we have a a mental system where the executive can just go and take any loan at all they don't go to Parliament for legislative approver and blessing then what it means is that the provisions of the Constitutions are actually what ignored so if the provision of the contion cannot be ignored in the same vein if you have a provision of the contion says that the Supreme Court which supposed to interpret uh law and tell us whether something is within or outside the REM of the letter and of the constition why shouldn't that be respected now external point of view heart contrast that with the internal point of view we just discussed so by this it means the external perspective uh of an outsider who observes the law without regarding it as binding so from this standpoint law is viewed objectively and compliance may appear to be based on external pressures such as the threat of punishment rather than internalized obligation so you see the difference so the internal point of view yes officials and citizens have a sense of uh the law binding just within them and they they are not looking for anything outside themselves before they will give obedience to the law so heart says that this external Viewpoint uh why it can be can describe the actions of those who comply out of fear of sanction it does not capture the normative force that legal rules have over those who genuinely accept them as find them yes if you read later on when we are doing American legal realism right ol the holes will make the famous statement the what you call the the bad man's predic theory that the bad man does not care what the law says what he cares about is that what will be his punishment if he does not obey the law so that is the bad man's predic theory of La that is fine but heart is saying that is not all the time that we have citizens who would like to uh obey the law because of fear of punishment but to large extent uh there are many situations in which citizens have just internalized the need to obey the law and that is why they obey the law and that is why he says that the stal point of view will fail in explaining uh that aspect of obedience to the law those who have internalized it now heart also has his take on the law and morality relationship uh his uh separation thesis so uh miss the point that there's a need to separate law and morality and in his work we call that the separation thesis so he argued that law IM morality are conceptually descent they are like two different stream each in its own channel and that means that a law does not require a moral Foundation to be valid the law is valid without the moral foundation and this contrast sh play with natural law theories which we have seen uh I said that laws must reflect moral values to be legitimate now in has View a legal system can contain morally objectionable laws and seem function as legal system in other words we can have laws which are violent according to our sense of morality but that will not let them lose their quality or their status as law and that is the the heart of his separation thesis or separability thesis of law imorality so you give example laws that discriminate B on race or gender may be unjust but still whole legal Authority if they meet the criteria established by the rule of recognition so for example if you take uh slave trade those of you have following international news you notice that the Comm had their meeting uh not too long ago just this week and the Commonwealth are like the former British colonist they have been manting pressure on their former Colonial Master United Kingdom that they should pay uh reparation or compensation for slavery which they engage in the sleeve trade and if you monitor the news the British have also um to use was speaking they've thought about the matter and and both the Prime Minister and the King uh they have resolved and given know indications that Britain is not going to pay any compensation for any sleep trade that they did of course legitimately so if they were to do that I'm sure it will lead to the whole of Britain will become bankrupt because if you look at the number of slaves and the atrocities and the wickedness which were perpetrated during the Sleep trade I'm sure that if will even uh value the entire assets uh they may not be enough to be able to pay for that and that is why uh the leadership of Britain in their wisdom uh decided to run away from the issue so it it makes sense in that way but of course previously I think they have appologized many years ago about that but the issue of compensation is uh a new thing so just talking about that the time they doing the S and all that there were certain laws which were passed by uh know the either the British Parliament yes and then uh or the king giving other in councel commands and so on which enable certain things to be done so uh that such law certainly you notice that it's against morality how can you for example have a policy or law which says that you can sell another human being and all that but heart is saying that uh if having such a law yes appears to be unjust but still has a legal what Authority if it meets the criteria established by the RO of recognition if for example uh assuming is Parliament has made it it came from Parliament that is it it Miss it just like you look at the uh let's say during the military regimes or not even the military regime look at the first Republican know parliament of Ghana uh the various deportation orders uh you know ladan ladan number one number two captain and all those if you remember where no the rest go to the parliament for Parliament to pass a law and the law is just for one person to be deported from Ghana and even if the person is challenging the matter in court and the court is agreeing with the person to get Parliament to pass a law which overwrite what the court is saying effectively inist that the person should be deported from Ghana I mean such a law on the face of it is unjust is immoral however according to heart so long as it satisfy the uh criteria of the rule of recognition rule of recognition says that uh was it made by Parliament the parliament followed the appropriate uh know procedure for making law and that also brings to mind the recent Supreme Court decision in the O Buu against attorney general uh in which Parliament struck down the citizenship uh Amendment act which sought to include uh some offices as being capable of uh being held by those who hold du citizens including the Supreme Court and uh no like no as not being capable of being held by those who hold the DU citizens including Supreme Court then the Supreme Court said that well yes Parliament has the power to make the law but if you look at that uh law they made it has the effect of amending a certain provision of the Constitution and if you look at chapter 25 of the Constitution it has provided the various framework for amending the Constitution uh depending upon uh whether it is entrenched or not entrenched and having regards to this amendment act uh Parliament did not actually follow the procedure for making the law and for that matter the law of St down as being unconstitutional so that is another example of what heart is telling us uh regarding the fact that yes you can have a law which uh appears uh immoral or just but still law so long as it meets the rule of recognition so heart separation uh thesis allows legal system to be valuated independently of ethical consideration nevertheless uh heart acknowledges that many legal system incorporate moral principles especially concerning fundamental human rights so if take chapter five of our constition for example if you examine chapter five of our constitution the fundamental Human Rights and Freedoms you notice that uh to a large extent they reflect uh uh morality and even even the chapter say the directive principles reflect a lot of the justice and all that so that is fine but uh that in itself does not mean that if the law does not have uh that moral uh appeal it will lose its status as law so that's what the heart is telling us so on that note heart is acknowledging that yes morality influences the law that notwithstanding legal validity is a matter of social acceptance rather than moral correctness so if socially officials and citizens accept it then that is it regardless of whether it is morally correct as it were and that explains why in some you know countries in the US for example as we speak now uh they put abortion as in some about 10 states I to correct the last time I checked the news about 10 states within the us as part of the general election that they having they are will to vote on whether abortion should be uh permitted or should not be permitted under their respective State following the i in the doson case which was decided by the US Supreme Court that the issue of uh abortion should be decided by the various uh States rather than uh the federal uh uh government so if you look at this heart separation thesis you notice that it's actually a good uh representation of legal positivism because legal posit legal positivism you know attempts to draw a distinction between legal and moral obligation now later on there's a scholar called fer maybe as part of the this we will do to go the house Fuller debate uh after the second we certain developments occurred and Fuller were right trying to radicle those who subscribe to Legal positivism including heart that the law is valid even if it doesn't have a moral content then heart will later on reflect on all those uh criticism and come back to make a certain uh concession that uh yes uh is necessary to have a certain minimum content of natural law uh because uh human beings we have certain limitation or weaknesses um that if we are not to be a suicide uh club and we need to survive as a society then we need to have certain minimum content such as there Pro prohibition against violence and thefts and all that now heart also touched on the open texure of Law and judicial discretion so he introduced the concept of open uh texture of law to address the indeterminate nature of legal language the legal language is indeterminate indeterminate in the sense that it doesn't have exactitude it has inexactness so by open testure he was referring to the inherent vagueness and flexibility in legal language which prevents law from covering every possible scenario or application I give you typical example when we you use uh the word right right or even the word possession possession has inherent vness in the sense that uh it can mean so many things so if you use like the word possession in the law what exactly are you referring to and the indeterminancy of legal language requires judges to exercise judicial discretion in cases where application of a rule is ambiguous if a rule can be applied in more than one way then a discretion will have to be exercised by the Jud and how to give example if you tell like the 10 reasonable okay which you often see in various legal tests as well as if you're doing like lot of thought like reasonable care or Criminal Reasonable Doubt in all we you see the word reasonable there so the reasonable for example we seeing the reasonable care does it mean the same as the reasonable we seeing the Reasonable Doubt certainly we have ambiguity we have indeterminacy we have vess fluidity which we are encountering so such terms in heart thinking leave room for interpretation because what is reasonable may vary depending upon the context and that is why we later won be told that where are like are chameleon H or where sometime beh like the chameleon you know the chameleon it assume the color of the environment some W are like that and even in law the depending upon the context in which they they being use the meaning may change so heart argued that this flexibility is essential because it allows the law to adapt to Noel situations that original drafters would not foresee when it comes to making laws uh lawmakers cannot provide for all scenarios canot provide for all scenarios just like arle 97 one G and H of 1982 contion that we talk about when the constituent assembly the frame of the Constitution when they put those provision there what did they mean did they also mean that if people were serving in Parliament and in the Parliament that they are serving they haven't actually physically cross CET they are still doing the the usual thing they are doing but then outside Parliament they've gone to F paper who says that they are no longer going to contest for reelection on the tiet of the parties which elected them to be in the current Parliament should that be understood as covered by what al7 Clause one G and H saying so that is the kind of thing heart is inviting us to ponder because the original drafter could not have imagin all the scenarios so there's definitely a need for judicial uh you know discretion and interpretation now the open texture aspect of law necessitate that judges have the authority to interpret laws based on context and purpose which introduces a degree of vot of subjectivity and his acknowledgement of judicial discretion uh serve as a counter to the criticism that positivism is rigid and fails to account for the interpretive role of Judges so later on when we are encountering Scholars like ran Jin his Lost Empire and his right answer thesis ran Jin will be castigating a certain version of a legal positivism including heart and say that uh if you insist on straight fality to the law uh then uh you are not taking care of the interpretive role of Judges which is inevitable as far as the legal system is concerned but then heart says that well that has been taken account of by his recognition of judicial discretion so by recognizing open SE heart demonstrates that legal positivism is compatible with realities of judicial decision making and the evolving uh need nature of law so just before we leave heart we need to acknowledge that uh when it comes to Legal Theory as we have stated no legal theory is perfect and in fact human beings we are not perfect so everywhere we have but we have a criticism so heart legal positiv has also face uh various criticism including uh leading Scholars like uh L fer and Rona Jin uh fer uh in criticizing heart argued that law inherently contains a moral Dimension and that a legal system cannot function without a commitment to certain procedural principles such as consistency fairness and transparency I hope you remember what we said about fulla when we learning natural law uh his soall procedural approach to natural law when he said that yes for law to serve its uh purpose which is the purposeful Enterprise of subjecting humans uh conduct uh to regulation then it must have certain elements consistency fairness transparency so uh fer is saying that law must fulfill these principles to be genuinely authoritative and if you look at his work the morality of law he talked about the inner morality of law uh and the inner morality of law he argued that procedural Justice is necessary for a legal system to valid and this is a a contradiction or it contradicts has view as we have seen because Fuller uh will see legal and moral obligation has been Inseparable foras heart has told us that there's the concept of morality and anal of legal obligation are quite destinct Jing on the other hand uh will criticize heart positivism by arguing that legal principles are as important as legal rot so it's not all about rot but you also know need principles now he introduced the idea of principles by which he meant that they embody uh values like fairness and Justice and that they play a fundamental role in judicial decision making and later on when we are learning about R jins uh theory of you know adjudication his law Empire and all that he talk about the fact that how in uh hard cases that is those cases uh which are not governed by any particular uh know readily available legal rule they can still be resolved by the judge by falling on the underlying or the underpinning values of the legal system which by his training uh he's very familiar with now Jin contended uh that um has rule based framework overlooked the importance of U principles which he saw as essential in interpreting and applying law in a just manner of course later on har will come back and also uh rebat or refute uh their uh criticism and how to maintain that yes principles can guide legal interpretation but they are not necessary for uh a system to be classified as law and how to maintain that legal system could function without incorporating moral principles but as we saw in his minimum content of uh know morality how to eventually acknowledge that many system incor values of what of fairness and and Justice so uh We've uh spend a lot of time on heart so we will uh actually uh draw the C down so that we have a a break and we come back to uh company law so that at our next class we use about uh 40 minutes to discuss you know hand sking and we start taking the presentations which you have been assigned but if you have like questions I'll be happy to take them uh yes Father I'm thank you my Lord please I would like to know since um um in discussing about Jeremy benam you talked about he looking at the command Theory and then here is the case where heart is departing or shifting from the external command Theory and then he's propounding a secondary rules which acquire their legitimacy through especially making which makes him mention he he doesn't make mention of any sovereignty or an external rule so how does he validates the secondary rule I'm talking of of this legitimacy because of the same which applies to the statement of recognition here that if a rule of recognition is outside the legal system then it May lack legal Authority yet if it is inside the legal system it would also require validation by another rule of recognition so would this not lead to an infinite regress or a visous cycle in this Theory so you are uh being influenced by the thinking of Hans Kelson which we'll be discussing later on by his hierarchy of legal Norms where each legal Norm derived validity from the succeeding no but you know what heart is trying to tell us is that he is not disputing the relevance of command Theory but his problem is that if all that we had was the OM theory of law as asir by jery bam later on John ntin then we will hit a deadlock we will get to a stage where we cannot explain so many other aspects of law so many other aspects of the legal system and that is what he sought to do yes when it comes to criminal law and all that perfectly he agrees that um the command Theory uh provides satisfactory uh account but from your learning of the law the past 3 four years you will notice that criminal law is just a fraction of the law and there are so many other areas of the law which is not criminal law so how do you explain uh the law of uh secession no equity and Trust the law of Wills how do you explain all that a contract thought land law in intellectual property they are not uh they don't follow the pattern or the framework of yeah uh criminal uh law and that is where he thinks that that we need other way or of explaining the legal system as a whole and then he would say that yes in every legal system we have rules who tells us what we should do or what we we don't have to do and even in undeveloped legal system he uses the expression primitive Society we even see it over there and you call that the primary rules uh you call like the dos and the Dos but then he makes a point that uh the dos and the don'ts cannot help us to understand law completely or legal system completely because it's not everything about law what are necessarily about our direct Behavior but sometimes we also have laws which help us to understand the laws which regulate our direct behavior and that is why he will bring the idea of like the the secondary uh rules and uh the secondary rules he talks about like the rules of the among other things the rules of recognition and the rules of recognition help us to know uh the legal uh Norms that form part of the legal system and that do not form part which officials and citizens actually uh recognize and that is why he is saying that is not uh know so much about only the external uh point of view but more importantly about like the internal point of view and that was why I was trying to use examples from our contion to illustrate that now let's say the current situation we have in Ghana provides the perfect scenario for our reflection yes we gave examples that the government needs as of parliament to do so to run the business of government including loans you know including uh living taxes and even budgetary you know approval allocations appropriation of funds and all all these things Parliament needs to pass laws before they can be done now we have a situation where Parliament said okay uh We've uh know agend uh indefinitely we have not indicated when we are coming back can the government ignore Parliament and and and go about doing government business and then uh you order the accountant to pay certain monies out of Consolidated funds contingency funds and the various funds when there is no reference to a particular provision of an act of parliament which have been passed to that effect now if the those officials are for example uh complying with the government orders when the government has actually not on to comply with the legal requirements in that case uh we cannot call those uh those routes who says that Parliament must make certain rout before you can do certain things actually having the force of law because those the officials and citizens don't consider themselves Bound by it so that is the point heart is trying to make but as it were uh we haven't gotten to that stage yet because even we can see we can see how the uh the the ruling government party is trying to take steps to force Parliament to come back as it were so that it can get uh government business running meaning that uh uh by and large the officials and the citizens recognize uh the various uh know legal Provisions that we have quoted as something binding and that is reinforcing the heart point of the internal point of view with respect to the rule of recognition thank you very much my Lord thank you any other question before we have our break yes uh God FR God friend good morning my Lord morning and thanks for the lecture thank you um um please I want to find out about the fact that Society changes I have to confess that I've missed some portion of the lecture but I want to find out when we talk about a society changes are there parameters we can evaluate to come to a solid conclusion that yes societ has changed for example if you want to say Ghana has changed are parameters we can look at to come to a solid conclusion that yes Ghana has changed therefore there is a need for us to make laws or there's a need for us to interpret the Constitution to reflect the change that has occurred and the second the second question to I don't know if I can go on to okay so let me react to your first question I think your first question is a matter of Sociology rather than uh law uh yeah so as whether the society has change or not of course it's also relative it depends upon what you're talking about because Society is vast there are so many dimensions of it so if we are specific then uh that is fine but without even letting you uh give me any specific example if you look at our society if it come to even uh uh information access to information information availability and all that media Freedom press and all that Society has changed now every Gan is a journalist in his or his own right isn't it you can just get any social media and you are preaching or publishing to the society and people are following so that is an example of a change and not only that as I said there are so many dimensions of change which are discernable in society so it depends upon what you are talking about but otherwise if you wanted be more technical then you need a sociological investigation I wanted us to uh finish uh legal positive so Hand curing I want us to add hand curing before we go so I am giving you just a two minutes break and then we'll come we continue handc we just need about just a