Harts Primary and Secondary Rules - Research Paper Example

Law and society Hart’s primary and secondary rules: Herbert Lionel Adolphus Hart was a prominent philosopher who had written several books on law and jurisprudence. His influential writings are relevant especially with regard to the Anglo-American legal system in place today. Hart’s view differs from another great legal philosopher, John Austin. Austin view on law give the impression that it is more like a command given by a sovereign that has to be obeyed without question. Hart says that this view is similar to a gunman in a bank giving orders to hand over money. Law is not always meant to be coercive and in many instances provides guidelines and powers for various types of human activity. Hart states that a good legal system should be governed by primary and secondary rules. A legal system can be considered to be complete only if both these sets of rules exist. Hart distinguishes between primitive and developed legal systems in this regard. A developed system will have both primary and secondary rules while a primitive one will only have primary rules. A primitive legal system will not be well organized and will have elements of uncertainty and inefficiency. It will also be static in nature. Primary rules directly provide the ways in which citizens are expected to act within the confines of the law. In a modern legal context, they can be the statutes and laws that form the basis of a judicial system of a country. For example, criminal law in the United Kingdom is a primary law because it specifically states what a person should not do. It also specifies the punishment that can result in case a prohibited act is performed. But primary rules found in primitive legal systems are subject to the three limitations mentioned above. The purpose of secondary rules is to rectify or correct these limitations. Secondary rules are meant to reinforce the primary rules. In other words, secondary rules see to it that primary rules are implemented in a proper manner. They could include statutes regarding, contract law, powers of legislation, the judiciary (lawyers and judges), law enforcement agencies, and other regulatory organizations. Secondary rules should include rules of recognition, rules of change and rules of adjudication in order to be effective. The recognition aspect provides a statutory body to the rules. According to Hart, primitive legal systems are uncertain and rules may be vague. The rule of recognition removes this uncertainty. It specifically states and recognizes the rules and statutes to be followed by people in a society. Again primitive legal systems are static and changes in the society and environment does not affect the rules. Hart states that rules should never be static. The rules of change show how primary rules can be changed in accordance with changing needs of the society. The element of arbitrariness is removed and specific guidelines are in place regarding changes in rules. Changes in law may be required due to changes in the circumstances in a country. For example, UK Visa and immigration laws now require all applicants to provide their fingerprints. The rule has been introduced due to increased terrorist activity in the UK and other parts of the world. This biometric requirement helps to identify suspects and also helps to protect a person from being arrested due to mistaken identity. Unless the government has a mechanism to change rules according to needs, people can take advantage of the situation. They could possibly indulge in illegal acts without being detected or punished. The rule of adjudication provides powers to individuals and bodies to assess whether a rule has been violated. The judiciary in England has the power to do so. In some instances, certain national laws may override local laws. This rule also provides guidelines on which statute will override another one. Another instance could be when the House of Lords overrules a decision made by a lower court. According to Hart, a well-laid out set of primary rules which is supported by secondary rules is essential for a legal system to be considered relevant and modern. Rousseau’s conception of the “general will”: Jean-Jacques Rousseau has written extensively of the concept of social contracts in society and states that this is achieved through ‘general will’. For a society function and grow, it is necessary that people submit themselves to the general will of the society. He states that people in a society enjoys two types of freedoms, namely natural (personal) and social ones. The former is the freedom or will of the individuals in the society. It varies from person to person depending factors like wants and needs. These form the basic natural instincts of man. The will that comes out of this freedom will also be based on instincts and actions will be selfish in nature. Man does not work for the good of the society (and others) under natural will and freedom. This was the case before organized societies were born and people led a primitive life. The concept of general will was not relevant at that time. They were self-sufficient and hence not attuned to helping others. But the situation changed after organized societies began to evolve and they began to have their own needs. The needs of the individuals and the needs of the society need not always be harmonious. It was seen that the protection and growth of the society was more important than protection of individuals. If individuals in a society acted for the needs, wants, and benefit of the society, he or she will be protected. Thus social freedom is achieved when a person agreed to go along with the general will. For example, the concept of private ownership of property (house land etc) began to be an accepted practice and the need for protection of property began to arise. Only a society and its administration could assure this. So it was thought best to forego some level of individual freedom in order to obtain the more important social freedom. So, general will is a set of factors that benefits the society as a whole. Individual or natural freedom and will takes a backseat which is beneficial to both the society and the individual. Moreover, general will and social contract is governed by reason whereas personal will is governed by instinct. It is beneficial to for individuals, in the long run, to act based on reason rather than on instinct. On the whole the benefits and freedom from submitting to general will is better than what is obtained from individual will and freedom. It should be noted that general will does not mean it is the will of the majority. It is based on factors like equality, honesty, good governance and wisdom of the rulers which is beneficial to the society as a whole. Rousseau’s concept of general will considers equality as an important factor. There is no one person who is superior or more powerful than the other. In this context, he differentiates between justice and power. It is justice and not power that should become the foundation of general will and social contract. If power was the deciding factor, the concept of equality would be lost. The more powerful person will always be at an advantage. Moreover, the powerful individual will always be on the right side of law even if he or she acts in a wrong manner. It is not enough that rulers of a society have the power to compel people to act in a particular way (based on general will). The best way will be to have a symbiotic relationship between the society and the individual. Even though power is vested in a central authority, the body or person cannot make decisions without consulting with the people. A proposal with its pros and cons and alternatives if any will be made, and a final decision be made only after proper consultation and approval as mentioned above. The concept of general will and social contract will bring about a high level of interdependence among the citizens of a society. This will ensure that no one will try to act in a way that is selfish and also harmful for the society. Any new member or citizen will go along with the requirements of the general will. It will provide him protection and social freedom and hence would be willing to forego certain levels of personal freedom. . John Locke’s view on property rights: John Locke is considered by many as one of the most influential thinkers of the modern world. He has written extensively on many social aspects that include natural laws, politics, governance, freedom, revolution and the right to property. While most of his views are considered to be practical and relevant to modern society, his views on property rights have come under a lot of criticism. (Even though land is the focus of attention in this section, Locke did not limit his definition of property to land alone). His basic philosophy viewed all human beings as independent. No other human being could infringe upon this right to another’s life and life’s possessions. So a person is not entitled to interfere into the affairs of another. People on the whole are reasonable and they use this faculty in their daily lives. If everyone is reasonable, then no conflict will occur. A person can interfere in the actions of others if that person indulges in unreasonable or irrational acts. This view is extended into Locke’s view on property rights. He firmly believes that an individual is entitled to ownership rights which have been acquired through exercise. Every person in a society is equal and has equal rights and this includes the rights to work on land and make it productive. In the days when people led a nomadic life, the concept of ownership of property did not matter. But when cultivation began and people began to settle down permanently, the land on which they worked became subject to ownership rights. Locke argues that if any person has added value to the land then he or she is entitled to its ownership. The basic premise behind this argument is that since every one has a right to act according to his will (rationally), the act of working on land is an extension of that right. There is nothing irrational in that act and hence it is valid in an equal society. So land that was common to everyone now becomes the private property of the individual who has worked on it. . But Locke has put forth other conditions with regard to this right to property. One is that it should be done before it spoils or perishes and the other is that man should ensure enough and good land for others to work upon. He also states that no man should take for himself anything in excess what he can use. In other words, a person should see to it that there is enough land which is good as his own so that others can also claim ownership through work. Taking into consideration what has been said above, retaining ownership is important and the government of a country should ensure protection from any form of local and foreign attacks that which entails threat to ownership. Locke’s views have been criticized on several grounds. One is that it is contradictory since some people may own land while others cannot. The concept of equality in society as focused by Locke is lost in this instance. A person who initially works on land will be in a position to acquire more land thereby creating unequal ownership of property. Another area of contradiction is the concept of workers who labour for the owner of the land. As per Locke’s views, any labour done entails ownership rights, but not in the case of workers. Locke uses the words, ‘the turfs my servant has cut’ as equivalent to work done personally by the owner. Workers do the work, but the rights are with the owner. It appears that Locke sees workers as an extension of the right to free will and action (both rational) as mentioned earlier. The worker is simply an extension of the right to action. According to Wood, in his book, ‘The origin of capitalism: a longer view’, the landowner is the one who increases the value of land through his initiative. It does not matter whether the actual work is done by someone else. Hence the landowner is entitled to property and ownership of the land. Locke also has been criticized as being an ardent supporter of capitalism and the wealthy through his views on property rights. It would appear that he is in support of the maxim, ‘the rich gets richer and the poor gets poorer’. So the concept of equality is lost due to inequality in ownership of property. Locke is also accused of supporting colonialism by many authors (for example, Barbara Arneil) because of his views on property rights. He had defended the right of England in protecting her colonies in the United States of America. According to Locke’s views, this right to property extends beyond national boundaries. If a group of people work on foreign soil, they get the right to property even though it is in possession of the native population. It is true that American Indians and Australian aboriginals were in possession of large tracts of land on which no value addition was done. When English settlers began to work on this unused land, they brought in value addition and hence became owners to this land as per Locke’s philosophy. But the ethical aspect of conquering and owning land belonging to the native population of a country is a factor that is not considered by Locke. In other words, the right of the local inhabitants to hunt and live on their land is not a factor in this instance. This is a breach of his core philosophy of the right to (rational) free will and action. Macpherson also states that the concept of ‘enough and good land’ is not practical. Many types of property (like land) are limited and cannot be renewed or increased. The ownership of land will effectively reduce availability in the long run. After a period of time, people who want to work on it may find that land (good or bad) is no longer available. Locke’s argument that no man should take property more than what can be used (by him) also is also contradictory. If man has the right to property every time he works on it, then he will eventually have more property that he needs or can use. It will also create inequality which is against Locke’s philosophy. The Mabo v Queensland ruling was an instance when Locke’s view on property ownership was both recognized and ignored in a way. The ruling stated that the lands originally inhabited by Murray Islanders belonged to them and not the state. As per section 5 of the Land Act 1962, any land for which express title was not given belonged to the state. Locke’s view was recognized because the right to land on which no work was done does not give property rights. It also viewed section 5 as an infringement of the rights of the islanders. The right to own property by immigrants in order to work on it will give them rights of ownership (according to Locke). The lands in Murray Island could have been taken away by the government for development purposes in the future. Hence the land belongs to the government as per Locke’s view. But the courts did not uphold this view and ordered that the rights to land be restored back to the islanders. Even though Locke’s philosophy has had its share of criticism and is sometimes contradictory, his contributions in the social and political fields have been influential. It can be seen from literature that his works are discussed even today (as in the case of Moba v Queensland). The philosopher Leibnitz had criticized Locke’s philosophy in his work ‘Nouveaux Essais’. But even so, only very few of Locke’s viewpoints had been critical and Leibnitz had agreed with the philosopher on most points. This shows the influence Locke has on the modern world even today. But even so, an implementation of Locke’s philosophy today will not guarantee equality in the society. It would be in favour of individual enterprise which will ultimately result in a highly capitalistic and unequal society. Ideology and law: In most cases, the ideology followed by the government is often reflected in its laws and statutes of that country. According to the Stanford Encyclopaedia of Philosophy, political ideologies like liberalism, capitalism, communism and fascism has had its influence of laws and statutes. A capitalist approach is expected to reflect a liberal ideology which allows a free market society, freedom of expression, and other benefits which may not seen in say Fascist ideologies. It will be highly repressive so that the dictator’s views, beliefs and fears become the ideology. None of the benefits enjoyed by citizens of liberal economies will be seen in such a society. Courts will be strict in applying statutes and citizens are often denied fundamental human rights. A communist ideology promises a world where worker rights are protected through its laws, which also serves to prevent private enterprise from operating in the market. The basic premise in governance is that citizens should accept the supremacy of the state, and they will be provided fundamental rights and protection (depending on the ideology) in return. But this influence need not be seen in implementation and practice of law even though citizens expect it. Penner states that ideology and its influence on law may not reflect reality. It sometimes turns out that this concept of equality is in effect a ‘false understanding’ of law and equal justice may not happen every time. Penner goes on to state an example of Marxist view regarding law and ideology in capitalistic countries. They often state that capitalistic ideology, (even though it influences law) is often used as a tool by the ruling class to oppress the downtrodden (workers). All these indicate that ideology does have an influence on law and statutes in any country. The author also distinguishes between concept and belief regarding law and ideology. The concept of law may be that it is fair and just, which is an extension of the ideology of a modern society. But the belief about law may not be the same as concept if legal decisions do not reflect this ideology. If people feel that court decisions favour the rich, then belief in the system will be lost even though the concept remains unchanged. The conflict or incompatibility between ideology and law is illustrated in the case of the Black Act (1723). This controversial Act was contained several offenses which could be awarded with a death penalty even for minor offenses like killing or stealing deer. Thompson, in his book ‘Whigs and Hunters’, states that the primary aim of this act was to control people and land (consisting mainly of Jacobites). The ideology of freedom that forest resources could be used sustainably had been in existence for a long time. People used to exercise this freedom, but act effectively put a stop to this. The ideology of Margaret Thatcher had a profound influence on labour laws in the United Kingdom. Here again curtailment of worker rights in favour of a free market economy in the name of competitiveness has resulted in lack of compatibility between ideology and law. Sandra Fredman (in her journal article titled ‘The new rights: Labour laws and ideologies in the Thatcher years’) states that critics have universally spoken about repression of worker rights with regard to formation of unions and collective bargaining. The trade union movement in the country was seen to be bad and hence had to be repressed. This is indicative of the fact that laws and statutes in a capitalistic economy favours one section of the society (namely the capitalists) and ignores the rights of the workers and employees. What should be noted here is that it is the effort and hard work of these employees which had contributed to their business success in the first place. Zizek is of the opinion that this lack of compatibility is due to the inability to distinguish between state power and state apparatus. He argues that both are distinct in the sense that state power is often used in capitalistic societies to control the apparatus so that laws can be interpreted to the advantage of the bourgeois rather than the workers. In other words, the state in capitalist societies is seen as repressive and favours only one section of the society, namely the businessmen and landowners. He states several instances of revolutions by the oppressed class where state apparatus continued to function in spite of the collapse of state power. The French and Russian revolution did not result in total collapse of the state, but resulted in a relatively smooth transition of ideologies to the state apparatus. Zizek states that it is essential for the working class to control state apparatus to ensure that the basic fundamental rights of all citizens of a state are protected. This is only possible in a socialistic environment and ideology which should in turn influence laws and statutes. There are four basic assumptions that need to be implemented for this to happen. The state in traditional societies is repressive and its laws and ideologies are incompatible (in practice). State power and state apparatus are two distinct entities. The collapse of one them need not necessarily result in the collapse of the other. The struggle between different classes within a society is due to the capability of state power to control state apparatus by the capitalists. In order to correct the situation, it is essential that the proletariat (working class) be able to control state apparatus. In other words, state apparatus is bound to follow the directions of those in power irrespective of ideologies. They will do their part to enforce law and is not generally concerned with the compatibility between ideology and law. This view is endorsed by Halpin in his article in the Journal of Political Ideologies. Lawyers and judges along with statutes and laws form the foundation of a legal environment in any organized society. Halpin states that lawyers tend to ignore ideology and focus on the intricacies of law and statutes. Some lawyers have a disdain for ideology while others accept it in their personal lives. But when it comes to the legal profession, both these groups ignore it. They simply focus on the text and see how it can be used to benefit their clients. The legal profession is subject to the powers of the political ideology of the ruling forces. They can be manipulated or used to enforce law irrespective of the ideology of equality as entrenched in the minds of ordinary citizens of a state or nation. It also proves that ideology can influence law, but its actual interpretation and implementation will depend on state power rather than on ideology. This observation and state of affairs is not something new. Monarchy is an example of the use and misuse of state power in the name of ideology. The monarch had absolute authority and the laws formulated were dependent on the ideologies that were in turn dependent on the monarch’s wishes. Of course, religion and social practices did play a part in this. Even young nations like the United States, considered to be the first constitutional democracy, did not practice its ideology in law. The rights of blacks and women were curtailed even though the concept of equality was one of the tenets of the country’s constitution. According to Karl Marx, such incompatibility between ideology and law is inevitable in a capitalist society. It is purely an extension of slavery and feudalism. There is no real freedom in such societies even though a person is free to own land, engage in business, or to work under someone. Pushkanis, referring to Lenin states that class struggle is an ever-present factor here and only an ideological revolution will result in power for the proletariat. This could be through violent or peaceful means. Only then will the concept of equality through harmony between ideology and implementation of law will take place. In all other instances, ideology will influence law makers, but the ruling class will use it to their advantage without taking into consideration the concept of equality before law. Read More