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?