Transcript of Hart - Concept of Law - Ch 5 (Primary and Secondary Rules)

we all live in this valley and we have like flocks of i don't know sheep or something right we're shepherds [Music] so we are finally ready to move on to hla heart's own theory of law previously we were reading the chapters of hart's book that attack austin's theory they attack another theory of law but now we're at chapter five and in chapter five we get the first sort of half of the presentation of heart's own view the second half of it is gonna come in chapter six and if we're going to understand heart's theory the first thing we need to understand is the distinction that he makes between what he calls primary and secondary rules so here's the difference primary rules are regular rules that apply to the behavior of regular citizens so for example there's some rule right of a of a game right there's a rule of a children's game and the rule is that um you can only kick the ball right you can't touch with the ball with your hands and you can't um i don't know do other things you can only kick it that's the only way that you're allowed to move the ball on the on the field that's a rule that applies to the players the kids that are playing but then if this game becomes more popular and there are many more people playing it who don't know each other very well and can't cooperate with each other as well in the sort of natural informal way that children can cooperate with other children that they know then you might have to have all sorts of rules about the rules there's a rule here that says that you can only kick the ball but then there's going to be a rule that says the commissioner can change the rules and then of course there's going to be rules about who becomes the commissioner and how they become the commissioner right of the league that is the league is going to have referees and it's going to have commissioners and it's going to have all this other stuff these rules are rules about rules they're rules about how to change these rules and all sorts of stuff like that they're rules about who gets to make those rules who gets to decide whether these rules have been violated right that's the referee or whatever or the umpire the secondary rules are the rules about rules and then of course there's going to be rules about rules about rules but all those rules all the way up they all count as secondary right so there's just two categories for heart there's the first order rules about how to play the game and then there's all of the additional second order third order first order fourth order fifth order rules about rules about rules and they all count as secondary that's the distinction between primary and secondary rules notice very importantly hart two chapters ago i think in chapter three he made this distinction between duty imposing rules and power conferring rules this was a distinction that hart made as part of his criticism of austin's view the criticism was that legal systems have power conferring rules but that austin's theory can't capture those rules explain how they could exist that sort of thing anyway this is these are different distinctions typically most of the primary rules will be duty imposing most of the rules will say what what people can or cannot do and then and then the secondary rules will be a combination of both although maybe primarily the power conferring rules will appear as secondary rules but these are different distinctions this distinction has to do with whether the rule tells people what they may or may not do what they must or must not do versus whether the rules give people kinds of authority or normative power right and really maybe it's authority to change the duties of others anyway that's a distinction that's different from whether the rules are about other rules or whether they're just ordinary rules about directly about behavior so here is the big claim that hart is making in this chapter the claim is this in order for some system of rules to be a legal system it must have both primary and secondary rules a legal system can't be a legal system if it just has primary rules you need both this is a necessary but not sufficient condition for the existence of a legal system if you didn't understand that don't worry about it the point is just that you need both types of rules although there might be other things that you need in order to count as a legal system that's the big claim is that you need both and the way that hart illustrates this claim the way that he illustrates in particular the usefulness of secondary rules is first by imagining a system of rules where there are only primary rules and then this system is going to run into all sorts of defects it's going to run into all sorts of problems and heart is going to claim that in each case of a defect there's a remedy for that defect that comes in the form of a secondary rule and so these secondary rules heart thinks naturally develop as a solution to these problems or as a remedy to these defects okay before we get into the details of the defects let's just understand a little bit better what a system of rules with only primary rules is like we've already seen one example and that's just sort of a simple child's game right children's ma children make up a game they play the game with one another they don't have referees and umpires and commissioners and and committees that decide how to change the rules they don't have tv contracts they don't have any of that stuff they just have the ordinary rules that govern their interaction another example an example that that hart mentions is etiquette etiquette you know rules about whether you take your hat off or which fork to use and that sort of thing which clothes to wear to which kinds of events how to greet someone right rules of etiquette are always it seems systems merely of primary rules there's no commissioner of etiquette that gets to change the rules on the spot or anything like that think about rules of gendered rules of dress at one point women were not permitted by etiquette to wear pants in western societies some western societies right that was a rule but there was no rule about how to change this rule and there was no rule saying that this is a rule right specifying which rules count as rules of etiquette there were just rules of dress rules of attire gendered social rules that that people recognized enough people acknowledged these rules accepted them in the right kind of way and so these were the rules and you couldn't change this rule quickly it took a very long time to change the rule for whether women were allowed to wear pants out in the world in order to change that rule you had to change many many minds whereas if you have for example a secondary rule a rule that set that allows um a little council of people or even an individual to like bang their gavel and change the rule well then you can change the rule in an instant okay i'm sort of getting ahead of myself um that's going to be one of the advantages of introducing secondary rules let's just jump right in to the three defects the first defect is something that heart calls uncertainty this is what heart says to explain this defect or this problem that systems of merely primary rules are going to face here's what hart says hence if doubts arise as to what the rules are or as to the precise scope of some given rule there will be no procedure for setting for settling this doubt either by reference to an authoritative text or to an official whose declarations on this point are authoritative this is a problem that applies to a system of merely primary rules so let's say right that we are a group of people and we live in a valley there's our valley okay and um in the valley there's grass i'll make the grass a different color right there's grass right on one side of the river and on the other side of the river and we all live in this valley and we have like flocks of i don't know sheep or something right we're shepherds that's the river this is the river in the middle okay and there's grass on either side we have a system of rules um that are in place among us and we all accept these rules there's a few hundred of us living in this valley that you that on certain weeks you uh shepherd your sheep in one on one side of the river and in other weeks you shepherd your sheep on the other side of the river okay fine and this keeps keeps us from using up all the grass it allows the grass to to grow back before we release the sheep again and this way we don't starve and die we have some rules like this this is a practice and if someone violates one of these rules we criticize them maybe we even punish them but we don't have a town council we don't have a king or a queen we don't have any judges or rules about how to enforce these rules or anything like that rules about how to change these rules so we don't have any secondary rules we just have the regular rules about shepherding your sheep on the grass or whatever and then there there arises a dispute because say there's another uh there's another valley and at this other valley there's the same situation we now you know someone starts marching over into this other valley or there's a there's a rock slide and the rock slide reveals uh you know a passageway to this other valley and at this other valley there's the same deal there's bits of grass on either side of a of a river okay and and there's a dispute as to whether or not the same rule applies to this to this new valley that is do you have to only graze your sheep on one side or the other on those certain weeks or whatever what's the rule right is is the rule that you're that you're only allowed to graze your sheep on one side or the other or can you graze your sheep anywhere there because the rule doesn't apply over in this new place if we just have primary rules there's no way to settle this dispute some people say the rule is like this it applies at every valley right and other people say no it doesn't apply in every valley it just applied in the original valley well what's the rule there's no systematic way for resolving this dispute right just like if there's a dispute as to what a rule of etiquette is there's no systematic way of resolving that dispute it's different if there are secondary rules by the way and this is going to be hart's point if there's a secondary rule that says you know what counts as a rule or who gets to decide what counts as a rule then we have some way of figuring out what happens what the deal is what the rules are as they apply to this new second valley this is a defect this is a problem we have no way of settling this dispute and with no way of settling this dispute well people attack each other they settle it uh with the sword or with their fists or whatever that's the first defect so there's uncertainty and specifically note it's uncertainty about what the law is or really what the rules are right because there's no law at this point because heart thinks that when you just have primary rules and you have these kinds of defects you don't even really have a legal system okay but what the law is or what the rules are right we don't even we can't we it's uncertain what the law is that's the first defect now let's talk about the second defect the second defect heart is going to call um uh staticness heart doesn't actually say the word staticness he just says that a system of merely primary rules is static so we're going to use staticness though as our label for this second defect that applies to systems of rules that contain only primary rules here is what hart says the only mode of change in the rules known to such a society that is a society with merely primary rules the only mode of change in the rules known to such a society will be the slow process of growth whereby courses of conduct once thought optimal become first habitual or useful and then obligatory and the converse process of decay when deviations once severely dealt with are first tolerated and then pass unnoticed he's talking about how rules change if you merely have primary rules then the rules can only change by getting everyone to agree on a new set of rules right and so the rules will therefore change very very slowly so here let's go through this little this one sentence the only mode of change in the rules known to such a society will be and then we're going to get how rules change in systems with merely primary rules the slow process of growth whereby courses of conduct once thought optimal become first habitual or usual and then obligatory for example how did the rule that we have in our society our little you know primitive society with a primitive system of rules of grazing your sheep only on one side of the river or whatever on certain weeks um how did that rule show up in the first place well first there was just a course of conduct that was thought optimal right it wasn't required but it just seemed better you know if you switched the sides of the river that you were grazing your sheep on first that kind of behavior was thought to be the better kind of behavior and then enough people in the in the community uh you know a good majority of them started to think that this was the best way to behave it wasn't required but it was the best way and then after that eventually enough people think this way it becomes habitual or usual that is it becomes common practice before they just thought it was the best way to do it now it's the way that basically everyone is doing it all the time this takes place over the course of weeks or months or years or generations and then eventually we the group of people we in the valley we start thinking of this pattern of behavior this course of conduct this pattern of grazing your sheep only on one side of the river on this week and on the other side at a different week we start thinking of that course of conduct as obligatory and that's what it is for it to be obligatory when you have a system merely of primary rules enough people think it's obligatory hart's view by the way of the existence of rules is going to turn out to be something like that it's slow you create new rules but you create them very very slowly if you just have a system of primary rules and the same goes for getting rid of old rules right so think of our other example of a system of just primary rules the um gendered uh dress right this is gendered dress a rule that says that women can't wear pants right how do you get rid of a rule like that well if there's justice if there's just primary rules which there are in etiquette right then there's a there's a converse process of decay for getting rid of the rules deviations once severely dealt with are first tolerated and then pass unnoticed right so if a woman were to walk out into the public sphere at some time in certain places um wearing pants she would be severely dealt with that is she would be ostracized or maybe you know actually sanctioned maybe imprisoned or something like that right but certainly would be criticized openly then you know more people start doing it this takes years and years and years of work or years and years and years of just of just slow change and then eventually that behavior is frowned upon by many but tolerated that is people think to themselves when they see this behavior that's not the right way to behave she should be wearing a dress or a skirt or something like that people think these things but they don't say anything or they say very little they don't really do anything about it they don't go and go and assault this woman or arrest her or anything like that so it becomes this behavior which once was severely dealt with is then tolerated and eventually it passes unnoticed like that's where we are now when a woman wears pants no one even notices it's not even a thing oh she's wearing pants as opposed to a dress or a skirt pants are a normal thing now they are an acceptable form of attire given the gender rules of of dress that we have in our in western civilization today or whatever this all happens very slowly when you only have primary rules but this is a kind of defect if you think about it in a certain sense say that the grass got a disease and much of the grass in the valley started dying and we needed to act quickly we quickly needed to make it the case that we changed the rules about when and how much you could graze your sheep on which portions of the grass in the valley because if we didn't dial back the calories we were giving our sheep from the grass then they would consume all the living grass and all the grass would die and then the sheep would die and we would die so we need to quickly change the rules but if we only have primary rules you can't change the rule quickly because well it's just ordinary rules that exist because enough people accept them in the right kind of way we even if we wanted to we couldn't change the rules of gendered clothing right quickly and even if they wanted to these villagers they couldn't quickly change the rule there would be people who would still be using the old rule right it's very hard to get all these people on board whereas if you've got a system of secondary rules by the way where you've got a rule for how to change the rules right it says the town council has to pass a rule with x number of votes then it might be hard to convince the town council but it's at least possible to change the rule instantly we get it staticness you know the word static means unchanging and this defect isn't really the fact that the rules don't change it's really the fact that the laws or rules can only change very slowly they can't change quickly and they also can't change deliberately a town council can change or a king um uh or a congress can change the rules in a very precise way exactly as they intended whereas if you're trying to change the rules of gender dress or of how to where to where to graze your sheep when you only have primary rules and you're in the system of rules that govern your little uh valley society right the rules have to move slowly by a whole group of people and maybe they don't change in exactly the right way that was intended by the person who set this change in motion so that's that's the defect of staticness that you get when you only have a system of primary rules now we can move on to the third and final defect and this third defect is called in efficiency here's what hart says to explain this defect disputes as to whether an admitted rule has or has not been violated will always occur and will in any but the smallest societies continue interminably if there is no agency specifically empowered to ascertain finally and authoritatively the fact of violation uh what does that mean so say that we agree about what the rules are right and say we don't need to change them they're they're fixed for the moment at least and we know what the rules are let's say we agree right that the rule you know back in the original valley here says that you can't um you know graze your sheep on this side here on the first week of the month then someone claims to have seen someone else at night grazing their sheep on that side of the river but that but the person accused says they it wasn't them they weren't they were somewhere else that night they were at home and their sheep were all at home or whatever well what happened what's the fact of the matter has the rule been broken or not there's a dispute that arises someone accuses someone else and someone denies it and then well this is going to continue interminably if we only have primary rules because we don't have a system in place a system that can only exist when there are secondary rules that that put in place police and judges and juries and you know the gathering of evidence and the holding of a trial or whatever we don't have secondary rules that put all that stuff in place we just have the first order primary rules that say where you can and can't graze your sheep so this there's no way to settle this dispute as to whether or not this person was really there breaking the rule whether the rule was really broken even if we can agree what the rule is in the first place there's inefficiency in you know determining if rules were violated what we don't have is some way of settling these disputes as to whether someone broke the rules so we've got our three defects and we already know what the point of all this is the point is that heart thinks that there are specific kinds of secondary rules that are going to naturally arise among groups of people in order to solve these three problems or to remedy these three defects okay so the so the remedy for each one is a type of secondary rule let's just quickly go through each uncertainty we don't know what the law is we don't know for example in this example what the rule is as applies to this new valley that we've now entered right well there's there's got to be some secondary rule that we can come up with that says you know what the what the rule is going to be so either we've written down our rules and we have a rule that says whatever gets written down on this piece of paper by this official procedure counts as the rule right and so maybe the official procedure is this is the rule about how you how you get to count as a rule is you know you got to have 60 percent of the population show up and they've all got to agree and raise their hand in a certain way and then someone writes it down and then they all read it and raise their hand again or whatever right there's some procedure in place that decides what the rule is or maybe when there's a dispute like this there's a judge that's empowered to decide what the law is in this case the case of the new valley or something like that right and there's just a rule that says who gets to be the judge in what powers a power conferring rule that says what powers the judge has that's the kind of secondary rule that would solve this problem or remedy this defect and heart's name for this kind of secondary rule is a rule of recognition this is going to be for heart the most important type of secondary rule and it's going to be discussed also in chapter 6 which we're going to talk about you know next time or the time after next time or whatever it's called the rule of recognition because it recognizes it's a rule that recognizes what other rules count as rules in the system what rules count as legally valid let's move on to staticness right well we have a problem where we can't change the rules quickly and we can't change them deliberatively so we need another rule that says how to change rules so maybe there's some rule that says well congress can pass new laws or amend current laws if they've got this number of votes or whatever so that's a power conferring rule giving congress that power right and that's a secondary rule right there's some rule about how to change the rules or maybe it's just a simple rule like the king can change them whatever the king wants he just has to wear his crown and and stand on one foot that's how he changes rules and then whatever he says that's a new rule or something like that and hart calls secondary rules of this kind rules of change they're just rules about how to change rules fine and of course the rules of change will also in some cases depending on how they're specified allow the community under certain procedures to change even secondary rules so you could even change the rule of change would allow you in many cases to change the rule of change finally inefficiency that is how do we determine what the facts of the case are whether the person was really there on that night it was really them how many witnesses do we need we go to the video footage all that sort of stuff how do we tell if a rule has been broken heart calls the secondary rules that we put in place to solve this problem he calls them rules of adjudication these are going to be rules that say you you get a jury together and you have a prosecutor and you have um you know the defendant the the defendant is entitled to um representation in the form of counsel lawyers or whatever all the rules like that about how we get to decide what kinds of evidence are needed who the jury is the one that gets to decide the facts of the case all that sort of stuff those are all rules of adjudication and they're all secondary rules that remedy this defect those are all the main points that i wanted to make about the parts of chapter five that we read for today the main thing to pick up on is that heart seems obviously right like this group of people that only has primary rules and they live in the valley or whatever and they can't change their rules they can't they can't exactly settle disputes about what the rules even are and they can't decide whether the rules in any given case have been violated or not right this group of people they don't have a legal system yet because they don't have secondary rules once they get a whole bunch of secondary rules they get rules that say who are going to be judges and there's going to be juries and there's going to be police and there's going to be a congress or a king or something like that and there's going to be a constitution maybe once they get all of that stuff you add all that in and now it becomes much more plausible that they have a legal system something that really deserves the title law there might be other conditions that they have to meet but having secondary rules seems as hart thinks seems to be you know a necessary condition you