The second reason in its definition gives an idea that in a legal system there are not only legal rules, but also non-legal rules, for example morality, habitual practices, ethics and values, etc. “Where there is a law, human behavior is done in a non-optional or mandatory law.” Therefore, the notion of obligation is at the heart of the rule. The concept of law arose from Hart`s early lectures as a professor of jurisprudence at Oxford after Arthur Goodhart`s retirement in 1952. [7] [8] Among Hart`s early lectures on law, which are developed in the book, is his 1953 essay entitled “Definition and Theory in Jurisprudence.” [9] Hart`s discussion of Austin`s legal positivism, the separation of law and morality, and the open texture of legal rules can be seen in his presentation of the Oliver Wendell Holmes Lecture at Harvard Law School in April 1957 entitled “Positivism and the Separation of Law and Morals.” [10] The book developed a differentiated view of legal positivism. Primary rules are those that tell people to do or not to do things. The primary rules are the “mandatory taxation rules”. They impose certain specific obligations on citizens of the state to act in a certain way, or they may be subject to certain legal sanctions. Hart calls primary rules “basic” rules. They tell the citizen what can and cannot be done in accordance with the law. You define tasks. These rules have to do with physical issues.
In the Indian Constitution, Annex VII provides a list, namely the state, central and concurrent lists, which gives the respective bodies the power to legislate. There is a link between these primary and secondary rules. There is a specific relationship between these rules, which rather systematically encompasses a legal system and a legal system. The rules of case law should remedy the ineffectiveness of their diffuse social pressures. The rules of case law allow individuals to make authoritative decisions as to whether a primary rule has been breached on a particular occasion. [21] The rules of jurisprudence govern the choice and procedure of the judiciary. Mixed with who decides, however, is what laws they decide. [22] According to this logic, decision rules, such as change rules, must also be supplemented by recognition rules of one kind or another. Thus, “the rule that confers jurisdiction will also be a rule of recognition that establishes the primary rules through the judgments of the courts, and these judgments will become a `source` of law.” [23] Hart believed that the law is the union of primary rules (rules of conduct) and secondary rules (enabling rules). [12] Secondary rules are those that allow people to introduce or modify new rules of the first type through certain things.
They give individuals (individuals or public institutions) the power to introduce or modify the first type of rule. Secondary regulations are not rules that impose tariffs. These are what Hart calls power-giving rules. Secondary rules confer the power to create sovereignty; They also confer the power to change, modify or apply primary (and secondary) rules. [14] Secondary rules combat the three main problems of legal systems that primary rules cannot solve: (1) the uncertainty of the law, (2) the effectiveness of the law, and (3) the static quality of the law. Each type of secondary rule deals with a separate topic from these three topics, but all are interdependent. [15] Hart separates secondary rules into three types: recognition rules, change rules, and decision rules. [16] Austin believed that any legal system should have a ruler who creates the law (origin), while remaining intact by it (scope), like the shooter of the banking scene, who is the only source of orders and not subject to the orders of others.
Hart argues that this is an inaccurate description of the law, noting that laws can have multiple sources and that legislators are very often subject to the laws they create. Hart tells us that, contrary to Austin`s “theory of command,” laws are much broader than coercive orders. Often, laws allow citizens to take authoritative acts, such as drafting wills or contracts with legal effect. Secondary rules are rules that confirm “powers”, such as contract, marriage, will, delegated legislation – legislative authority. “The legal system is a system of rules of a social nature because, on the one hand, they regulate the behavior of a member of society and, on the other hand, they deviate from human social practices. In Bohman (1610), Coke J. stated that “if it is determined that the law passed by Parliament violates certain moral principles, such a law could be null and void.” Hart identifies three of these important differences: content, origin, and scope. In terms of content, not all laws are mandatory or mandatory.
Some are facilitators and allow us to create contracts and other legal relationships. There are two perspectives on this subject: the external aspect, which is the independently observable fact that people tend to obey the rule with regularity, and the inner aspect, which is an individual`s feeling of being forced in some sense to follow the rule, also known as a critical attitude of reflection. From this inner sense, the law receives its normative quality. The obedience of the population to a rule is called efficiency. No law can be described as effective if it is not followed by the majority of the population. Although an average citizen in a modern state with a developed legal system may feel the internal aspect and be forced to obey the laws, it is more important for the leaders of society/people to have the internal aspect, as it is up to them to follow the constitutional provisions that, if they wish, could ignore without accountability. Nevertheless, staff members must use the internal aspect and accept the standards as a guideline for their conduct as well as for the conduct of other staff. In The Concept of Law, Professor H.L.A. Hart carefully analyzes the concept of social rule. It distinguishes rule-based behavior from habitual behavior and distinguishes legal rules from norms and orders supported by threats. He also subtly compares legal rules with moral rules. An essential element of social rules can be developed by comparing rule-based behavior with habitual behavior.
For the “external” observer, these types of behavior are indistinguishable, because for him each one appears to be regular and uniform. This principle is the most important and important principle of the secondary rules. It is this rule that recognizes the other rules. The rule of recognition is the criterion of the existence and validity of the rule of the legal system.