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:
- By determining what the law is;
- By determining how primary rules (and the law accordingly) may be changed; and
- 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.
- 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.
- 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.
- 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?