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2 Otago L. Rev. 417 (1969-1972)
Hart's Primary and Secondary Rules

handle is hein.journals/otago2 and id is 439 raw text is: HART'S PRIMARY AND SECONDARY RULES

S. F. D. Guest*
Since The Concept of Law' was published several discussions of Hart's
main theses have appeared in both legal and philosophical periodicals.
Amongst these Hart's statement that law is best understood as a union
of primary and secondary rules2 has come consistently up for criticism.
The aim of this article is to show that this has taken two main forms,
the first of which can be answered, the second of which can be shown to
be not so much an attack on Hart's specific arguments as a criticism
of positivism in general.
(i)
The first form the criticisms have taken is that of an attack on the
primary/secondary distinction itself. Firstly, writers have argued that the
distinction is not an exclusive one and ignores several important aspects
of law. Secondly, it has been argued that even if the distinction were
free from these defects it nevertheless rests upon a confusion of logical
and historical priority.
Cohen' says that the term 'power-conferring' as applied to the second-
ary rules blurs the distinction between a power and a capacity, and that
the 'private power-conferring' rules do not confer power except in a
distorted sense of 'power'. A person does not have a 'power' to marry
or make a will in the same sense as a legislature has the power to make
laws, for the law does not ordinarily refer to a person's power to make
a will or marry, but rather to his capacity to do so. 'Hence to assert
that there are powers of making wills or contracts,' Cohen says, 'is to
spread an appearance of unity over the whole range of what Hart classi-
fies as secondary rules while little unity really exists .... ,4
Cohen considers several possible defences to his objection. From
Hart's external point of view' capacities are powers in that both are
given like effect by the law6 and this could confer an appearance of
unity upon the secondary rules. The defence is unsatisfactory however
for Hart is specific that the secondary rules must necessarily be looked
at from the internal point of view.7 Another possible support for Hart
is that the distortion of the word 'power' here is harmless since it
demonstrates that a person with private powers is in fact like a private
B.A. (Hons.) (Otago).
1 The Concept of Law by H. L. A. Hart (1961) (Clarendon Press: Oxford
University Press), (hereinafter Hart).
2 Ibid., 237.
3 Critical Notice on The Concept of Law. L. J. Cohen (1962) 71 Mind, 395,
(hereinafter Cohen).
4 Ibid., 397.
5 For an explanation of the difference between Hart's internal and external
points of view, see Hart, 86-88.
6 Non-compliance with the relevant legal rule in each case could result in a
nullity.
7 Hart, 112-113.

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