Hart’s Positivity

It has been argued that society’s laws do not turn on the values and mores of the society, according to Hart’s positivist viewpoint.

This is not a tenable argument, however. The most basic viewpoint of the positivist is that those laws justly passed are valid laws, and must be obeyed. Positivism does not allow for the disobeyance of laws that might be found immoral, unjust, unethical, or what have you (as with MLK’s viewpoint). Laws justly passed are the law – and must be obeyed. What positivism does not say is that the social norms, attitudes, mores, ethics,  morals, et cetera, cannot be a fulcrum upon which the passage of law balances. The positivist viewpoint focuses on the manor in which laws are passed; if the agreed upon – the legitimate – method for carrying laws into passage was followed, the law is just. The only way, in the positivist viewpoint, to unmake that law is to follow the process that created the law to begin with. Therefore, the social norms of the time can and do affect the creation of law in the positivist viewpoint, as long as that is allowable in the legal system in question; simply put, once those norms are codified into law, they may no longer rest on the will of public morality.

Arguing Against Hart’s Framework

Heretofore in my writings on the subject, I have presupposed that Hart’s interpretation of a legal framework is an accurate one, to wit: that the existence of a legal system is derived from the intermingling of primary and secondary rules.

There are, however, logical arguments to be made that would seem to refute this presumption.

In an article printed in 1972, Professor D. Gerber argued for a scenario in which a collective of individuals – pointedly not a society, rather a community – with no defined system develops in the course of interactions between individuals a social rule. Suppose this rule becomes controlling on the population in some organic, unofficial capacity – such as a concept of revenge, perhaps. This presents a problem for Hart’s model: on the one hand, the development of a rule implies, according to Hart, the existence of a legal system. This is illogical, however, because we have determined as a precondition to this hypothetical that no such system exists. On the other hand, Hart might deny the legitimacy of the rule on its face, which implies that there is an extra-systemic set of rules by which this new rule must be judged; an assertion that Hart’s Positivist views must surely eschew, as accepting this view is a basic tenet of Natural Law.

If, then, Hart’s framework cannot be said to hold general applicability without grossly distorting itself, how can it be said to hold any academic force? In that case, perhaps secondary rules do not regulate primary rules (or the spaces in between as I’ve previously postulated), because perhaps the entire framework is logically flawed. Perhaps, instead, the framework of Hart’s theory of law is hoist by its own petard?

The Conferring of Power by Secondary Rules

Hart describes his secondary rules as conferring power – the power to change the law, the power to adjudicate on that law. On its face, these claims are sensible. Where a society, such as our own, confers through its secondary rules the ability to change those laws or to make judgments based upon those laws to individuals or groups of individuals, it is true that those rules then confer power on to these individuals.

However, the argument is made by scholars such as K.K. Lee that these rules do not by rote do so. The example Lee uses is a society wherein the sovereign writes the rules of law, writes into those rules of law a way for him to change those rules of law, and a way for him to adjudicate upon those rules of law. In that scenario, how can it be said, without distorting the story, that power has been conferred upon anyone? The holder of power has retained his own power.

The Relationships of Secondary Rules

I wrote briefly yesterday on what I believe is the proper definition of Hart’s concept of primary and secondary rules. To recap: primary rules are those that govern conduct, and secondary rules are those that govern primary rules, in a sense. 

Take notice of how I phrased that recap: “…govern primary rules, in a sense.”

If the framework for the legal structure is, in fact, synthesized by a weaving of these two differing sets of rules, the logical deduction is that the two must interact in some way; they must be as interrelated as they are interconnected.

When faced with the question of whether or not secondary rules are in control of primary rules, the answer is a rational yes. On its face, it would seem that secondary rules exert some from of control over primary rules. But is there not more to it?

To say that they exert control leaves us without an explanation as to exactly how that control is exerted. So let us recap the three ways, mentioned yesterday, in which secondary rules act:

  1. By determining what the law is;
  2. By determining how primary rules (and the law accordingly) may be changed; and
  3. By providing a framework for the settling of legal disputes.

When one dissects each of these three actions by secondary rules, one sees a pattern of action; let’s take it step by step.

  1. In determining what the law is, secondary rules make interpretations of the effects of one primary rule on another. Like prescription drugs, laws must not at to inhibit one another, or the aggregate body.
  2. By determining how the primary rules – and thus the law – can be changed, secondary rules act like an X-acto knife – carving out, with precision, slots into each rule to make them fit together.
  3. By providing a framework for the settling of legal disputes, secondary rules exert the force and effect of primary rules onto one another, and finally onto the individual.

The overarching theme here seems to be that secondary rules govern and regulate primary rules solely by governing how those rules relate and interact with one another. The do not necessarily govern the rules themselves – the rules themselves are as they are. Rather, they control the spaces between.

Did I just blow your mind?


More on Primary & Secondary Rules

It has been a while since I have posted here – things are getting crazy!

In the intervening time, I think I have come to some understanding as to what Hart was talking about in terms of Primary and Secondary Rules – so let’s give it a spin:

It would appear that Hart’s idea of legal framework is an interwoven kaleidoscope of primary and secondary rules; the intermingling of which create the vast network of law that governs society.

The primary rules, as I have come to understand them, are those rules that govern the actions of citizens. In this, my previous guess was somewhat accurate, in that these primary rules are inclusive of social, academic, and philosophical norms. Put more simply, these are our “do this or don’t do this” rules.

The secondary rules that Hart speaks of seem to be those that mould and shape the framework of the legal structure; they create methods by which primary rules can be changed, or eradicated; they create the methods by which legal disputes are resolved; and they establish some level of precision as to what the law is.

More on this tomorrow.

Primary & Secondary Rules

H.L.A. Hart makes a distinction between primary and secondary rules. I am unsure as to what to make of this. Right or wrong, this is what I have come up with:

Primary rules are the essential foundational element of secondary rules. In a sense, they are the social, academic, and philosophical norms that inform the foundation of secondary rules. Put another way, secondary rules are those norms in an institutionalized form.

Another way I thought of it was to to consider the primary rules to be the necessary conditions to establish the secondary rules. Conversely, the secondary rules are sufficient to prove the existence of the primary rules.

I could be completely off base here – any thoughts?

“The Insistent Analogy to Slavery”

Just a heads up – this particular post might arouse some vitriolic feelings in a reader. Before continuing, please understand this is merely a discussion of a recent article I read. I am not espousing any particular view on abortion, nor am I the least bit interested in getting into a debate on the morality of it. I have my views, your have yours – just leave it there. 

I recently read an article by Michael Stokes Paulsen called “The Insistent Analogy to Slavery.” While a very interesting read in many respects, the article was perhaps difficult to read, as it seemed to me that the author made no attempt at objectivity. Quite the opposite, he states from the outset that his views on the issue for discussion have been long held and oft written about (by him). The view he espouses is the notion that the moral framework and arguments in favor of pro-choice are the same as those pro-slavery arguments made in the antebellum south. Furthermore, the article calls into question the so-called ‘shaky constitutional ground’ upon which Roe v. Wade, and Planned Parenthood v. Casey stand.

Naturally, after browsing through the article’s Abstract, I couldn’t not read it. It seemed to me that it would be a perfect supplement to the slavery discussions we have had of late.

The author places primacy upon the “moral status” of the party being harmed. In the simplest of terms, the author makes the claim that those who are pro-choice are of the mindset that the fetus to be terminated is less than human, in much the same way that the pro-slavery argument presupposed – according to the author – that persons of color were less than human. Conversely, the author makes the point that the opposite is true of anti-abortion and anti-slavery arguments.

This is the portion of the argument that interested me most – in fact the rest of the article was a disappointingly biased tirade. But this notion of the sub-human argument put forth here demands some discussion, on the slavery point of view, and not the abortion point of view. We can see through an honest reading of our own history that slaves were not considered human in the eyes of the law; rather they were classified as chattels. However, as discussed earlier, there were certain oddities in the slave codes that seemed to recognize, on at least some fundamental level, that this classification of humans as property was an untenable denigration – and not necessarily (certainly less so over time) of some divine origin, as the article suggest.

The very fact that the slave codes were written in such a way as to make illegal the teaching of slaves to read, or the provisions forbidding trade with slaves, or all manner of provisions that made menacing actions by non-whites of either slave or free status punishable by death, was testament to the fact that those writing these laws recognized the humanity of these individuals. Note, I said recognized not respected; the two are wholly distinct in nature, and while one is a necessary condition for the other, in no way is one a sufficient condition for the other.

How do these laws recognize the humanity of these individuals? The simple act of creating laws that suppress the likelihood of slave revolt, on a scale unheard of since Spartacus, is testament to the fear that was felt in relation to this possibility. It was known then, as we assume now, that humans, forced to endure too much, and having the capacity to organize, will do so and will do so by force when necessary.

Perhaps more on this tomorrow, unless I find something more interesting.