Part 1 (A Fresh Start): In the previous chapters, a simple model of law as the sovereign’s coercive orders was shown to have failed in reproducing some of the salient features of a legal system, since some features of municipal law in a modern state were either distorted or altogether unrepresented. This theory failed in four (4) ways. First, it was clear that criminal statutes none the less differs from orders backed by threatsgiven by one person to others, since the former commonly applies to those who enact it and not merely to others. Second, it was shown that there are other varieties of laws such as those power-conferring laws, both public and private. Third, there are legal rules which differs from orders in their mode of origin. Lastly, the analysis of law in terms of the sovereign failed to account for the continuity of legislative authority like that of the modern legal system. There were other conceptions or ancillary devices that were introduced to show the simplicity of the model. One device is the notion of a tacit order, which is said to not be applicable to the complexities of modern legal systems. Another is the treatment of power-conferring rules as mere fragments of rules imposing duties, or merely treating all rules as directed only to officials. This device was designed to distinguish the legislators acting in their official capacityas one person and acting in their personal capacityas another. This resulted to a rule that defines what must be done to legislate, for only when the roles are distinguished can such rule exist.
Given these, Hart says that the past chapters are therefore the record of a failure and there is a need for a fresh start. This does not necessarily mean that it was a waste of time or effort to understand the concepts. Rather, he says that because of knowing the failure, we can now grasp what a better account of what law could possibly be and what it requires.
Hart proceeds by mentioning the two rules (primary and secondary) established in the previous chapters, namely duty imposingand power conferringrules, where the former concerns actions involving physical movement or changes and the latter concerns the creation or variation of duties or obligations. Moving forward, in this and the proceeding chapters, the analysis of the combination of these rules would show why Austin’s claim of coercive orders as the key to the science of jurisprudencemay be wrong. What will be attempted to be shown would be to simplify the perplexing notions surrounding what Lawis by uniting the elements that makes it such a complex topic.
Part 2 (The Idea of Obligations): Using the gunman situation where A orders B to hand over his money, Amust be the sovereign habitually obeyed, meaning Legal Obligationsare to be found writ large. In this situation, the obligation lies with B when he obeys the order, therefore he was obligedto hand over his money. There is a difference though when it is said that someone was obligedto something, compared to the assertion that he had an obligationto do it. The former is often a statement about the motives with which an action is done, such as in the case where Bturns over his money with the idea that if he does not do so, harm would befall him. On the other hand, the statement that someone had an obligationto do something is a different type, and there are many signs of this difference. For one, the motive behind turning over may signify that he was obliged to do it, but it does not necessarily mean he had an obligation to do it. This shows in the latter case that there is independence from the actual doingof an action from the obligation; the obligation exists even if the action is done or not done. This gives rise to the concept of chanceor likelihoodthat a person having the obligation will suffer a punishment or evilat the hands of others in the event of disobedience. This then treats statements of obligation not as psychological statements but as predictions of chances of incurring punishments.
This theory is not without any objections. The fundamental objection is that the predictive interpretation obscures the fact that deviations from them are not merely grounds for a prediction that hostile reactions will follow or that a court will apply sanctions to those who break them but are also a reason or justification for such reaction and for applying the sanctions. Another simplerobjection states that if it were true that an obligation meant that a person will likely suffer in the event of disobedience, it would be a contradiction to say that he indeed had an obligation. An example is for enlisting for military service (assumed to be an obligation), where a person escapes military jurisdiction, therefore actually not having a chance of being caught or punished. Two statements then are important, namely that a person has an obligationand that he is likely to suffer for disobedience.
To understand the general idea of obligations, we must turn to social situations which includes the existence of social rules. Why? First, the existence of such rule is the normal background or proper context for such statement, and second, the distinctive function of such statement is to apply such a general rule to a particular person by calling attention to the fact that his case falls under it. The statement that some is under an obligationdoes then indeed imply the existence of a rule, but it does not necessarily mean that the existence of a rule means it is conceived of in terms of obligations.
Rules are created to impose obligations when there is demand for conformity brought to bear upon those who deviate or plan to deviate; the creation of which may depend heavily on the operation of feelings of shame, remorse, and guilt. When based on said emotions, we can classify the rules created as part of moral obligations. On the other hand, when physical sanctions are prominent, we can classify such rules as primitive or rudimentary rules. Although different, what is important is that the insistence on importance or seriousness of social pressure behind the rules is the primary factor determining whether they are thought of as giving rise to obligations.
Obligations and duties are thought of as characteristically involving sacrifice or renunciation, as rules require honesty or truth, and that it is recognized that the conduct required by these rules may actually be in conflict with what the person who owes the duty may wish to do. The concept or figure of a bondbinding the person obligated is often associated with rules. In this figure, the social pressure comes from the image of a chain, where no person has no choice but to do his obligations. Another notion of the chain would be to look at the other end, where a person is holding it who may have the option to require the fulfilment of the obligation or not to insist on its performance. With these two images in mind, the first represents that of criminal law and the second that of civil law.
Indeed, the internal aspects of rules is something to which we must refer back to fully understand the predictivetheory that was introduced earlier on. The contrast in terms of the internaland the externalaspects of rules may serve to mark what gives the distinction for the understanding of the existence of rules (Law) and the normative structure of society. One can narrate from and take part in the external point of viewof people who abide by the rule, such as when a person takes account of people playing chess merely from the perspective of an observer. From this external point of view, one may observe those who deviate and can predict a hostile reaction from other players. On the other hand, this view is limited, as the observer does not actually take part in the playing of the game, and essentially, he is not subjected to the rules, thus not experiencing the players’ experiences. Taking this perspective in society, the external point of view limits itself to the observable regularities of behaviour, which does not take into account the ways rules function as rules in the lives of those who normally are the majority of the society. For them, the violation of a rule is not merely a basis for the prediction that a hostile reaction will follow but a reasonfor hostility.
One of the challenges for legal theorists is to justify the complexities of these viewpoints, where one voluntarily subjects itself to the rules, and one who rejects the rules and attends to them only from the external point of view as a sign of possible punishment. Perhaps all the criticisms of the predictive theory of obligation may be best summarized as the accusation that this is what it does to the internal aspect of obligatory rules.
Part 3 (The Element of Laws): Hart starts this part by saying that the primary rules of obligations (customs) are those which depict in detail the life of a society where the only means of social control is that general attitude of the group towards its own standard modes of behaviour. Meaning, they are not dependent on courts, legislature, and officials. If a society is to live based on these primary rules, there must be conditions that must be maintained. First, there must be some form of restrictions on the free use of violence, theft, and deception, which humans tend to repress. Second, those who subject themselves to the rules must not be a minority compared to those who rejects them, or else, there won’t be enough pressure to actually follow the rules.
Perhaps the most important consideration, it is proven that this kind of structure can only be implement in a small community closely knit by ties of kinship, common sentiment, and belief. Another defect is the static character of rules, where the only mode of change will be the slow process of growth, since there is no authoritative text or person to actually dictate what these rules are. There will be no means of deliberately adapting the rules to changing circumstances either by eliminating old rules or introducing new ones. Each individual, then, would simply have fixed obligations or duties to do or abstain from doing certain things. Lastly, another defect is the inefficiency of the diffuse social pressure by which the rules are maintained. Disputes over whether or not a rule has been violated will always occur and will continue interminably if there is no agency to ascertain finality. Continuing from this defect, this also shows that the administration of punishments does not depend on a special agency but are left to the individuals affected or to the group at large.
The remedy for each of these three main defects in this simplest form of social structure consists in supplementing primary rulesof obligations with secondary rules which are rules of a different kind. These remedies will be discussed, but before going into them, the following general points should be noted. These remedies are to be considered on a different level from the primary rules, for they are all about such rules; in the sense that while primary rules are concerned with the actions that individuals must or must not do, these secondary rules are all concerned with the primary rules themselves, as they specify the ways in which the primary rules may be conclusively ascertained, introduced, eliminated, varied, and the fact of their violation conclusively determined.
The firstand simplest form of remedy for the uncertaintyof the regime of primary rulesis called a rule of recognition, which specifies some features possession of which by a suggested rule is taken as a conclusive affirmative indication that it is a rule of the group to be supported by the social pressure it exerts. It may be no more than that an authoritative list or text of the rules is to be found in a written document or carved on some public monument. The writing is not the crucial step. Rather, what is crucial is the acknowledgment of reference to the writing as authoritative. In a more complex society, provisions for superiority may also exist, as by the common subordination of custom or precedent to stature, the latter being a superior sourceof law. The secondremedy is called therules of change, which empowers an individual or body of persons to introduce new primary rules for the conduct of the life of the group and to eliminate old rules. Such power conferred to these bodies may be unrestricted or limited in various ways, and the rules may define in more or less rigid terms the procedure to be followed in legislation. Lastly, the third supplement is called rules of adjudication, which consists of secondary rules empowering individuals to make authoritative determinations of the question whether a primary rule has been broken. Besides identifying the individuals who are to adjudicate, such rules will also define the procedure to be followed. It should be noted that the rule conferring jurisdiction will also be a rule of recognition, identifying the primary rules through the judgments of the courts and these judgments will become a sourceof law.
Looking at the structure that was made by interspersing the concepts of the primary rules of obligationsand secondary rules of recognition, change, and adjudication, it can be easily seen that this is the structure of the modern legal system. Aside from this, we now are presented with a tool for the analysis of what has puzzled both the jurist and the political theorists. Under the simple regime of primary rules, the internal point of view is manifested in its simplest form, in the use of those rules as the basis of criticism, and as the justification of demands for conformity, social pressure, and punishment. Hart says that reference to this most elementary manifestation of the internal point of view is required for the analysis of the basic concepts of obligation and duty.The addition of the secondary rulesextends the internal point of view, and with this extension comes a whole set of new concepts and they demand a reference to the internal point of view for their analysis (notions of legislation, jurisdiction, validity, etc.).
Hart then closes this chapter by stating that the next chapters will show how the ideas of the validity of law and sources of law may be rephrased and clarified in terms of rules of recognition. Hart ends with a warning that thought the combination of primary and secondary rules merits the central place assigned to it, this cannot be itself illuminate every problem; it is not the whole picture and there is a need to accommodate some elements of a different character.
Straight from the Hart 