State the elements of Hart’s primary and secondary rules. (6 marks)
LAW531: Jurisprudence I – April 2005
According to Hart’s theory of law, the law can be analysed through the lens of rules. These rules are imperative or prescriptive. Unlike commands – which call for a unique performance, rules have a general application and demand repeated activity.
Primary rules are those which regulate the behaviour of humankind in the society they live in. These rules establish either rights or obligations on the members of that society. Among these rules are criminal law, the law of torts, as well as environmental laws prohibiting reckless disposal of waste and chemicals. In essence, primary rules are rules of conduct: what must you do or not do; and what happens to you for failing to adhere to them.
Secondary rules stipulate how, and by whom, the primary rules are formed, recognised, modified, or extinguished. Constitutional law establishes how laws in Malaysia are enacted, the role of the judiciary in settling disputes, as well as the authority of the Executive in administering those laws. Among persons within the community, contract law establishes how agreements are governed between them. Likewise, laws of association stipulate how bylaws, guidelines, and policies govern an organisation and its members, as well as its conduct with other members of the society. Fundamentally, secondary rules include all rules except those that fall within the primary rules category.
Where primary rules govern conduct, secondary rules do not. Secondary rules prescribe how people can realise their collective aspirations – including formulating primary rules.
