V. Law as the Union of Primary and Secondary Rules
V. Law as the Union of Primary and Secondary Rules
- H. L. A. HartH. L. A. Hartlate Professor of Jurisprudence, Principal of Brasenose College, and Fellow of University College, University of Oxford
Abstract
Celebrated for their conceptual clarity, titles in the Clarendon Law Series offer concise, accessible overviews of major fields of law and legal thought. This chapter begins by identifying two types of rules. The first, which may be considered the basic or primary type, requires human beings to do or abstain from certain actions, whether they wish to or not. The second type of rules are in a sense parasitic upon or secondary to the first; for they provide that human beings may by doing or saying certain things introduce new rules of the primary type, extinguish or modify old ones, or in various ways determine their incidence or control their operations. The chapter then argues that in the combination of these two types of rule there lies what Austin wrongly claimed to have found in the notion of coercive orders, namely, ‘the key to the science of jurisprudence’. It attempts to show that most of the features of law which have proved most perplexing and have both provoked and eluded the search for definition can best be rendered clear, if these two types of rule and the interplay between them are understood. This union of elements is accorded a central place because of their explanatory power in elucidating the concepts that constitute the framework of legal thought.
