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.


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