Chapter 2: Laws, Commands, and Orders

Hart

1. VARIETIES OF IMPERATIVES

THE clearest and the most thorough attempt to analyse the concept of law in terms of the apparently simple elements of commands and habits, was that made by Austin in the Province of jurisprudence Determined. In this and the next two chapters we shall state and criticize a position which is, in substance, the same as Austin’s doctrine but probably diverges from it at certain points. For our principal concern is not with Austin but with the credentials of a certain type of theory which has perennial attractions whatever its defects may be. So we have not hesitated where Austin’s meaning is doubtful or where his views seem inconsistent to ignore this and to state a clear and consistent position. Moreover, where Austin merely gives hints as to ways in which criticisms might be met, we have developed these (in part along the lines followed by later theorists such as Kelsen) in order to secure that the doctrine we shall consider and criticize is stated in its strongest form.

In many different situations in social life one person may express a wish that another person should do or abstain from doing something. When this wish is expressed not merely as a piece of interesting information or deliberate self-revelation but with the intention that the person addressed should conform to the wish expressed, it is customary in English and many other languages, though not necessary, to use a special linguistic form called the imperative mood, ‘Go home!’ ‘Come here!’ ‘Stop!’ ‘Do not kill him!’ The social situations in which we thus address others in imperative form are extremely diverse; yet they include some recurrent main types, the importance of which is marked by certain familiar classifications. ‘Pass the salt, please’, is usually a mere request, since normally it is addressed by the speaker to one who is able to render him a service, and there is no suggestion either of any great urgency or any hint of what may follow on failure to comply. ‘Do not kill me’, would normally be uttered as a plea where the speaker is at the mercy of the person addressed or in a predicament from which the latter has the power to release him. ‘Don’t move’, on the other hand, may be a warning if the speaker knows of some impending danger to the person addressed (a snake in the grass) which his keeping still may avert.

The varieties of social situation in which use is characteristically, though not invariably, made of imperative forms of language are not only numerous but shade into each other; and terms like ‘plea’, ‘request’, or ‘warning’, serve only to make a few rough discriminations. The most important of these situations is one to which the word ‘imperative’ seems specially appropriate. It is that illustrated by the case of the gunman who says to the bank clerk, ‘Hand over the money or I will shoot.’ Its distinctive feature which leads us to speak of the gunman ordering not merely asking, still less pleading with the clerk to hand over the money, is that, to secure compliance with his expressed wishes, the speaker threatens to do something which a normal man would regard as harmful or unpleasant, and renders keeping the money a substantially less eligible course of conduct for the clerk. If the gunman succeeds, we would describe him as having coerced the clerk, and the clerk as in that sense being in the gunman’s power. Many nice linguistic questions may arise over such cases: we might properly say that the gunman ordered the clerk to hand over the money and the clerk obeyed, but it would be somewhat misleading to say that the gunman gave an order to the clerk to hand it over, since this rather military-sounding phrase suggests some right or authority to give orders not present in our case. It would, however, be quite natural to say that the gunman gave an order to his henchman to guard the door.

We need not here concern ourselves with these subtleties. Although a suggestion of authority and deference to authority may often attach to the words ‘order’ and ‘obedience’, we shall use the expressions ‘orders backed by threats’ and ‘coercive orders’ to refer to orders which, like the gunman’s, are supported only by threats, and we shall use the words ‘obedience’ and ‘obey’ to include compliance with such orders. It is, however, important to notice, if only because of the great influence on jurists of Austin’s definition of the notion of a command, that

the simple situation, where threats of harm and nothing else is used to force obedience, is not the situation where we naturally speak of ‘commands’. This word, which is not very common outside military contexts, carries with it very strong implications that there is a relatively stable hierarchical organization of men, such as an army or a body of disciples in which the commander occupies a position of pre-eminence. Typically it is the general (not the sergeant) who is the commander and gives commands, though other forms of special pre-eminence are spoken of in these terms, as when Christ in the New Testament is said to command his disciples. More important-for this is a crucial distinction between different forms of ‘imperative’-is the point that it need not be the case, where a command is given, that there should be a latent threat of harm in the event of disobedience. To command is characteristically to exercise authority over men, not power to inflict harm, and though it may be combined with threats of harm a command is primarily an appeal not to fear but to respect for authority.

It is obvious that the idea of a command with its very strong connection with authority is much closer to that of law than our gunman’s order backed by threats, though the latter is an instance of what Austin, ignoring the distinctions noticed in the last paragraph, misleadingly calls a command. A command is, however, too close to law for our purpose; for the element of authority involved in law has always been one of the obstacles in the path of any easy explanation of what law is. We cannot therefore profitably use, in the elucidation of law, the notion of a command which also involves it. Indeed it is a virtue of Austin’s analysis, whatever its defects, that the elements of the gunman situation are, unlike the element of authority, not themselves obscure or in need of much explanation; and hence we shall follow Austin in an attempt to build up from it the idea of law. We shall not, however, hope, as Austin did, for success, but rather to learn from our failure.

2. LAW AS COERCIVE ORDERS

Even in a complex large society, like that of a modern state, there are occasions when an official, face to face with an individual, orders him to do something. A policeman orders a particular motorist to stop or a particular beggar to move on.

But these simple situations are not, and could not be, the standard way in which law functions, if only because no society could support the number of officials necessary to secure that every member of the society was officially and separately informed of every act which he was required to do. Instead such particularized forms of control are either exceptional or are ancillary accompaniments or reinforcements of general forms of directions which do not name, and are not addressed to, particular individuals, and do not indicate a particular act to be done. Hence the standard form even of a criminal statute (which of all the varieties of law has the closest resemblance to an order backed by threats) is general in two ways; it indicates a general type of conduct and applies to a general class of persons who are expected to see that it applies to them and to comply with it. Official individuated face-to-face directions here have a secondary place: if the primary general directions are not obeyed by a particular individual, officials may draw his attention to them and demand compliance, as a tax inspector does, or the disobedience may be officially identified and recorded and the threatened punishment imposed by a court.

Legal control is therefore primarily, though not exclusively, control by which are in this double seg. This is the first feature which we must add to the simple model of the gunman if it is to reproduce for us the characteristics of law. The range of persons affected and the manner in which the range is indicated may vary with different legal systems and even different laws. In a modern state it is normally understood that, in the absence of special indications widening or narrowing the class, its general laws extend to all persons within its territorial boundaries. In canon law there is a similar understanding that normally all the members of the church are within the range of its law except when a narrower class is indicated. In all cases the range of application of a law is a question of interpretation of the particular law aided by such general understandings. It is here worth noticing that though jurists, Austin among them, sometimes speak of laws being addressed(1) to classes of persons this is misleading in suggesting a parallel to the face-to-face situation which really does not exist and is not intended by those who use this expression. Ordering people to do

1 ‘Addressed to the community at large’, Austin, op. Cit., p. 22.

things is a form of communication and does entail actually ‘addressing’ them, i.e. attracting their attention or taking steps to attract it, but making laws for people does not. Thus the gunman by one and the same utterance, ‘Hand over those notes’, expresses his wish that the clerk should do something and actually addresses the clerk, i.e. he does what is normally sufficient to bring this expression to the clerk’s attention. If he did not do the latter but merely said the same words in an empty room, he would not have addressed the clerk at all and would not have ordered him to do anything: we might describe the situation as one where the gunman merely said the words, ‘Hand over those notes’. In this respect making laws differs from ordering people to do things, and we must allow for this difference in using this simple idea as a model for law. It may indeed be desirable that laws should as soon as may be after they are made, be brought to the attention of those to whom they apply. The legislator’s purpose in making laws would be defeated unless this were generally done, and legal systems often provide, by special rules concerning promulgation, that this shall be done. But laws may be complete as laws before this is done, and even if it is not done at all. In the absence of special rules to the contrary, laws are validly made even if those affected are left to find out for themselves what laws have been made and who are affected thereby. What is usually intended by those who speak of laws being ‘addressed’ to certain persons, is that these are the persons to whom the particular law applies, i.e. whom it requires to behave in certain ways. If we use the word ‘addressed’ here we may both fail to notice an important difference between the making of a law and giving a face-to-face order, and we may confuse the two distinct questions: ‘To whom does the law apply?’ and ‘To whom has it been published?’

Besides the introduction of the feature of generality a more fundamental change must be made in the gunman situation if we are to have a plausible model of the situation where there is law. It is true there is a sense in which the gunman has an ascendancy or superiority over the bank clerk; it lies in his temporary ability to make a threat, which might well be sufficient to make the bank clerk do the particular thing he is told to do. There is no other form of relationship of superiority and inferiority between the two men except this short-lived

coercive one. But for the gunman’s purposes this may be enough; for the simple face-to-face order ‘Hand over those notes or I’ll shoot’ dies with the occasion. The gunman does not issue to the bank clerk (though he may to his gang of followers) standing orders to be followed time after time by classes of persons. Yet laws pre-eminently have this ‘standing’ or persistent characteristic. Hence if we are to use the notion of orders backed by threats as explaining what laws are, we must endeavour to reproduce this enduring character which laws have.

We must therefore suppose that there is a general belief on the part of those to whom the general orders apply that disobedience is likely to be followed by the execution of the threat not only on the first promulgation of the order, but continuously until the order is withdrawn or cancelled. This continuing belief in the consequences of disobedience may be said to keep the original orders alive or ‘standing’, though as we shall see later there is difficulty in analysing the persistent quality of laws in these simple terms. Of course the concurrence of many factors which could not be reproduced in the gunman situation may, in fact, be required if such a general belief in the continuing likelihood of the execution of the threat is to exist: it may be that the power to carry out threats attached to such standing orders affecting large numbers of persons could only in fact exist, and would only be thought to exist, if it was known that some considerable number of the population were prepared both themselves to obey voluntarily, i.e. independently of fear of the threat, and to co-operate in the execution of the threats on those who disobeyed.

Whatever the basis of this general belief in the likelihood of the execution of the threats, we must distinguish from it a further necessary feature which we must add to the gunman situation if it is to approximate to the settled situation in which there is law. We must suppose that, whatever the motive, most of the orders are more often obeyed than disobeyed by most of those affected. We shall call this here, following Austin, ‘a general habit of obedience’ and note, with him, that like many other aspects of law it is an essentially vague or imprecise notion. The question how many people must obey how many such general orders, and for how long, if there is to be law, no more admits of definite answers than the question how few

hairs must a man have to be bald. Yet in this fact of general obedience lies a crucial distinction between laws and the original simple case of the gunman’s order. Mere temporary ascendancy of one person over another is naturally thought of as the polar opposite of law, with its relatively enduring and settled character, and, indeed, in most legal systems to exercise such short-term coercive power as the gunman has would constitute a criminal offence. It remains indeed to be seen whether this simple, though admittedly vague, notion of general habitual obedience to general orders backed by threats is really enough to reproduce the settled character and continuity which legal systems possess.

The concept of general orders backed by threats given by one generally obeyed, which we have constructed by successive additions to the simple situation of the gunman case, plainly approximates closer to a penal statute enacted by the legislature of a modern state than to any other variety of law. For there are types of law which seem prima facie very unlike such penal statutes, and we shall have later to consider the claim that these other varieties of law also, in spite of appearances to the contrary, are really just complicated or disguised versions of this same form. But if we are to reproduce the features of even a penal statute in our constructed model of general orders generally obeyed, something more must be said about the person who gives the orders. The legal system of a modern state is characterized by a certain kind of supremacy within its territory and independence of other systems which we have not yet reproduced in our simple model. These two notions are not as simple as they may appear, but what, on a common-sense view (which may not prove adequate) is essential to them, may be expressed as follows. English law, French law, and the law of any modern country regulates the conduct of populations inhabiting territories with fairlwell-defined geographical limits. Within the territory of each country there may be many different persons or bodieof giving general orders backed by threats and receiving habitual obedience. But we should distinguish some of these persons or bodies (e.g. the LCC or a minister exercising what we term powers of delegated legislation) as subordinate lawmakers in contrast to the Queen in Parliament who is supreme. We can express this

relationship in the simple terminology of habits by saying that whereas the Queen in Parliament in making laws obeys no one habitually, the subordinate lawmakers keep within limits statutorily prescribed and so may be said in making law to be agents of the Queen in Parliament. If they did not do so we should not have one system of law in England but a plurality of systems; whereas in fact just because the Queen in Parliament is supreme in relation to all within the territory in this sense and the other bodies are not, we have in England a single system in which we can distinguish a hierarchy of supreme and subordinate elements.

The same negative characterization of the Queen in Parliament, as not habitually obeying the orders of others, roughly defines the notion of independence which we use in speaking of the separate legal systems of different countries. The supreme legislature of the Soviet Union is not in the habit of obeying the Queen in Parliament, and whatever the latter enacted about Soviet affairs (though it would constitute part of the law of England) would not form part of the law of the USSR. It would do so only if the Queen in Parliament were habitually obeyed by the legislature of the USSR.

On this simple account of the matter, which we shall later have to examine critically, there must, wherever there is a legal system, be some persons or body of persons issuing general orders backed by threats which are generally obeyed, and it must be generally believed that these threats are likely to be implemented in the event of disobedience. This person or body must be internally supreme and externally independent. If, following Austin, we call such a supreme and independent person or body of persons the sovereign, the laws of any country will be the general orders backed by threats which are issued either by the sovereign or subordinates in obedience to the sovereign.

Chapter 3: The Variety of Law

IF we compare the varieties of different kinds of law to be found in a modern system such as English Law with the simple model of coercive orders constructed in the last chapter, a crowd of objections leap to mind. Surely not all laws order people to do or not to do things. Is it not misleading so to classify laws which confer powers on private individuals to make wills, contracts, or marriages, and laws which give powers to officials, e.g. to a judge to try cases, to a minister to make rules, or a county council to make by-laws? Surely not all laws are enacted nor are they all the expression of someone’s desire like the general orders of our model. This seems untrue of custom which has a genuine though modest place in most legal systems. Surely laws, even when they are statutes deliberately made, need not be orders given only to others. Do not statutes often bind the legislators themselves? Finally, must enacted laws to be laws really express any legislator’s actual desires, intentions, or wishes? Would an enactment duly passed not be law if (as must be the case with many a section of an English Finance Act) those who voted for it did not know what it meant?

These are some of the most important of many possible objections. Plainly some modification of the original simple model will be necessary to deal with them and, when they have all been accommodated, we may find that the notion of general orders backed by threats has been transformed out of recognition.

The objections we have mentioned fall into three main groups. Some of them concern the content of laws, others their mode of origin, and others again their range of application. All legal systems, at any rate,seem to contain laws which in respect of one or more of these three matters diverge from the model of general orders which we have set up. In the rest of this chapter we shall consider separately these three types of objection. We shall leave to the next chapter a more fundamental criticism that apart from these objections on the score of content, mode

of origin, and range of application, the whole conception of a supreme and independent sovereign habitually obeyed, on which the model rests, is misleading, since there is little in any actual legal system which corresponds to it.

I. THE CONTENT OF LAWS

The criminal law is something which we either obey or disobey and what its rules require is spoken of as a ‘duty’. If we disobey we are said to ‘break’ the law and what we have done is legally ‘wrong’, a ‘breach of duty’, or an ‘offence’. The social function which a criminal statute performs is that of setting up and defining certain kinds of conduct as something to be avoided or done by those to whom it applies, irrespective of their wishes. The punishment or ‘sanction’ which is attached by the law to breaches or violations of the criminal law is (whatever other purpose punishment may serve) intended to provide one motive for abstaining from these activities. In all these respects there is at least a strong analogy between the criminal law and its sanctions and the general orders backed by threats of our model. There is some analogy (notwithstanding many important differences) between such general orders and the law of torts, the primary aim of which is to provide individuals with compensation for harm suffered as the result of the conduct of others. Here too the rules which determine what types of conduct constitute actionable wrongs are spoken of as imposing on persons, irrespective of their wishes, ‘duties’ (or more rarely ‘obligations’) to abstain from such conduct. This conduct is itself termed a ‘breach of duty’ and the compensation or other legal remedies a ‘sanction’. But there are important classes of law where this analogy with orders backed by threats altogether fails, since they perform a quite different social function. Legal rules defining the ways in which valid contracts or wills or marriages are made do not require persons to act in certain ways whether they wish to or not. Such laws do not impose duties or obligations. Instead, they provide individuals with facilities for realizing their wishes, by conferring legal powers upon them to create, by certain specified procedures and subject to certain conditions, structures of rights and duties within the coercive framework of the law.

The power thus conferred on individuals to mould their legal relations with others by contracts, wills, marriages, &c., is one of the great contributions of law to social life; and it is a feature of law obscured by representing all law as a matter of orders backed by threats. The radical difference in function between laws that confer such powers and the criminal statute is reflected in much of our normal ways of speaking about this class of laws. We may or may not ‘comply’ in making our will with the provision of s. 9 of the Wills Act, 1837, as to the number of witnesses. If we do not comply the document we have made will not be a ‘valid’ will creating rights and duties; it will be a ‘nullity’ without legal ‘force’ or ‘effect’. But, though it is a nullity our failure to comply with the statutory provision is not a ‘breach’ or a ‘violation’ of any obligation or duty nor an ‘offence’ and it would be confusing to think of it in such terms.

If we look into the various legal rules that confer legal powers on private individuals we find that these themselves fall into distinguishable kinds. Thus behind the power to make wills or contracts are rules relating to capacity or minimum personal qualification (such as being adult or sane) which those exercising the power must possess. Other rules detail the manner and form in which the power is to be exercised, and settle whether wills or contracts may be made orally or in w, and if in writing the form of execution and attestation. Other rules delimit the variety, or maximum or minimum , ofthe structure of rights and duties which individuals may create by such acts-in-the-law. Examples of such rules are those of public policy in relation to contract, or the rules against accumulations in wills or settlements.

We shall consider later the attempts made by jurists to assimilate those laws which provide facilities or powers and say, ‘If you wish to do this, this is the way to do it’ to the criminal laws which, like orders backed by threats, say, ‘Do this whether you wish to or not.’ Here, however, we shall consider a further class of laws which also confer legal powers but, in contrast to those just discussed, the powers are of a public or official rather than a private nature. Examples of these are to be found in all the three departments, judicial, legislative, and administrative, into which government is customarily though vaguely divided.

Consider first those laws which lie behind the operation of a law court. In the case of a court some rules specify the subject-matter and content of the judge’s jurisdiction or, as we say, give him ‘power to try’ certain types of case. Other rules specify the manner of appointment, the qualifications for, and tenure of judicial office. Others again will lay down canons of correct judicial behaviour and determine the procedure to be followed in the court. Examples of such rules, forming something like a judicial code, are to be found in the County Courts Act, I959, the Court of Criminal Appeal Act, I907, or Title 28 of the United States Code. It is salutary to observe the variety of provisions made in these statutes for the constitution and normal operation of a law court. Few of these seem at first sight to be orders given to the judge to do or abstain from doing anything; for though of course there is no reason why the law should not also by special rules prohibit a judge under penalty from exceeding his jurisdiction or trying a case in which he has a financial interest, these rules imposing such legal duties would be additional to those conferring judicial powers on him and defining his jurisdiction. For the concern of rules conferring such powers is not to deter judges from but to define the conditions and limits under which the court’s decisions shall be valid.

It is instructive to examine in a little detail a typical provision specifying the extent of a court’s jurisdiction. We may take as a very simple example the section of the County Courts Act, 1959, as amended, which confers jurisdiction on the county courts to try actions for the recovery of land. Its language which is very remote from that of ‘orders’, is as follows:

A county court shall have jurisdiction to hear and determine any action for the recovery of land where the net annual value for rating of the land in question does not exceed one hundred pounds.(1)

If a county court judge exceeds his jurisdiction by trying a case for the recovery of land with an annual value greater than £ 1oo and makes an order concerning such land, neither he nor the parties to the action commit an offence. Yet the position is not quite like that which arises when a private person does something which is a ‘nullity’ for lack of compliance with

1 Section 48 (I).

some condition essential for the valid exercise of some legal power. If a would-be testator omits to sign or obtain two witnesses to his will, what he writes has no legal status or effect. A court’s order is not, however, treated in this way even if it is plainly one outside the jurisdiction of the court to make. It is obviously in the interests of public order that a court’s decision should have legal authority until a superior court certifies its invalidity, even if it is one which the court should not legally have given. Hence, until it is set aside on appeal as an order given in excess of jurisdiction, it stands as a legally effective order between the parties which will be enforced. But it has a legal defect: it is liable to be set aside or ‘quashed’ on appeal because of the lack of jurisdiction. It is to be noted that there is an important difference between what is ordinarily spoken of in England as a ‘reversal’ by a superior court of an inferior court’s order and the ‘quashing’ of an order for lack of jurisdiction. If an order is reversed, it is because what the lower court has said either about the law applicable to the case or the facts, is considered wrong. But an order of the lower court which is quashed for lack of jurisdiction may be impeccable in both these respects. It is not what the judge in the lower court has said or ordered that is wrong, but his saying or ordering of it. He has purported to do something which he is not legally empowered to do though other courts may be so empowered. But for the complication that, in the interests of public order a decision given in excess of jurisdiction stands till quashed by a superior court, conformity or failure to conform to rules of jurisdiction is like conformity and failure to conform to rules defining the conditions for the valid exercise of legal powers by private individuals. The relationship between the conforming action and the rule is ill-conveyed by the words ‘obey’ and ‘disobey’, which are more apposite in the case of the criminal law where the rules are analogous to orders.

A statute conferring legislative power on a subordinate legislative authority similarly exemplifies a type of legal rule that cannot, except at the cost of distortion, be assimilated to a general order. Here too, as in the exercise of private powers, conformity with the conditions specified by the rules conferring the legislative powers is a step which is like a ‘move’ in a game such as chess; it has consequences definable in terms of the

rules, which the system enables persons to achieve. Legislation is an exercise of legal powers ‘operative’ or effective in creating legal rights and duties. Failure to conform to the conditions of the enabling rule makes what is done ineffective and so a nullity for this purpose.

The rules which lie behind the exercise of legislative powers are themselves even more various than those which lie behind the jurisdiction of a court, for provision must be made by them for many different aspects of legislation. Thus some rules specify the subject-matter over which the legislative power may be exercised; others the qualifications or identity of the members of the legislative body; others the manner and form of legislation and the procedure to be followed by the legislature. These are only a few of the relevant matters; a glance at any enactment such as the Municipal Corporations Act, 1882, conferring and defining the powers of an inferior legislature or rule-making body will reveal many more. The consequence of failure to conform to such rules may not always be the same, but there will always be some rules, failure to conform to which renders a purported exercise of legislative power a nullity or, like the decision of an inferior court, liable to be declared invalid. Sometimes a certificate that the required procedures have been followed may by law be made conclusive as to matters of internal procedure, and sometimes persons not qualified under the rules, who participate in legislative proceedings, may be liable to a penalty under special criminal rules making this an offence. But, though partly hidden by these complications, there is a radical difference between rules conferring and defining the manner of exercise of legislative powers and the rules of criminal law, which at least resemble orders backed by threats.

In some cases it would be grotesque to assimilate these two broad types of rule. If a measure before a legislative body obtains the required majority of votes and is thus duly passed, the voters in favour of the measure have not ‘obeyed’ the law requiring a majority decision nor have those who voted against it either obeyed or disobey edit: the same is of course true if the measure fails to obtain the required majority and so no law is passed. The radical difference in function between such as these prevthe use here of the terminology appropriate to conduct in its relation to rules of the criminal law.

A full detailed taxonomy of the varieties of law comprised in a modern legal system, free from the prejudice that all must be reducible to a single simple type, still remains to be accomplished. In distinguishing certain laws under the very rough head of laws that confer powers from those that impose duties and are analogous to orders backed by threats, we have made only a beginning. But perhaps enough has been done to show that some of the distinctive features of a legal system lie in the provision it makes, by rules of this type, for the exercise of private and public legal powers. If such rules of this distinctive kind did not exist we should lack some of the most familiar concepts of social life, since these logically presuppose the existence of such rules. just as there could be no crimes or offences and so no murders or thefts if there were no criminal laws of the mandatory kind which do resemble orders backed by threats, so there could be no buying, selling, gifts, wills, or marriages if there were no power-conferring rules; for these latter things, like the orders of courts and the enactments of law-making bodies, just consist in the valid exercise of legal powers.

Nevertheless the itch for uniformity in jurisprudence is strong: and since it is by no means disreputable, we must consider two alternative arguments in favour of it which have been sponsored by great jurists. These arguments are designed to show that the distinction between varieties of law which we have stressed is superficial, if not unreal, and that ‘ultimately’ the notion of orders backed by threats is adequate for the analysis of rules conferring powers as well as for the rules of criminal law. As with most theories which have persisted long in jurisprudence there is an element of truth in these arguments. There certainly are points of resemblance between the legal rules of the two sorts which we have distinguished. In both cases actions may be criticized or assessed by reference to the rules as legally the ‘right’ or ‘wrong’ thing to do. Both the power-conferring rules concerning the making of a will and the rule of criminal law prohibiting assault under penalty constitute standards by which particular actions may be thus critically appraised. So much is perhaps implied in speaking of them both as rules. Further it is important to realize that rules of the power-conferring sort, though different from rules which impose duties and so have some analogy to orders backed by

threats, are always related to such rules; for the powers which they confer are powers to make general rules of the latter sort or to impose duties on particular persons who would otherwise not be subject to them. This is most obviously the case when the power conferred is what would ordinarily be termed a power to legislate. But, as we shall see, it is also true in the case of other legal powers. It might be said, at the cost of some inaccuracy, that whereas rules like those of the criminal law impose duties, power-conferring rules are recipes for creating duties.

Nullity as a sanction

The first argument, designed to show the fundamental identity of the two sorts of rule and to exhibit both as coercive orders, fastens on the ‘nullity’ which ensues when some essential condition for the exercise of the power is not fulfilled. This, it is urged, is like the punishment attached to the criminal law, a threatened evil or sanction exacted by law for breach of the rule; though it is conceded that in certain cases this sanction may only amount to a slight inconvenience. It is in this light that we are invited to view the case of one who seeks to enforce by law, as contractually binding, a promise made to him, and finds, to his chagrin, that, since it is not under seal and he gave no consideration for the promise, the written promise is legally a nullity. Similarly we are to think of the rule providing that a will without two witnesses will be inoperative, as moving testators to compliance with s. 9 of the Wills Act, just as we are moved to obedience to the criminal law by the thought of imprisonment.

No one could deny that there are, in some cases, these associations between nullity and such psychological factors as disappointment of the hope that a transaction will be valid. None the less the extension of the idea of a sanction to include nullity is a source (and a sign) of confusion. Some minor objections to it are well known. Thus, in many cases, nullity may not be an ‘evil’ to the person who has failed to satisfy some condition required for legal validity. A judge may have no material interest in and may be indifferent to the validity of his order; a party who finds that the contract on which he is sued is not binding on him, because he was under age or did not sign the memorandum in writing required for certain contracts, might not recognize here a ‘threatened evil’ or ‘sanction’. But apart

from these trivialities, which might be accommodated with some ingenuity, nullity cannot, for more important reasons, be assimilated to a punishment attached to a rule as an inducement to abstain from the activities which the rule forbids. In the case of a rule of criminal law we can identify and distinguish two things: a certain type of conduct which the rule prohibits, and a sanction intended to discourage it. But how could we consider in this light such desirable social activities as men making each other promises which do not satisfy legal requirements as to form? This is not like the conduct discouraged by the criminal law, something which the legal rules stipulating legal forms for contracts are designed to suppress. The rules merely withhold legal recognition from them. Even more absurd is it to regard as a sanction the fact that a legislative measure, if it does not obtain the required majority, fails to attain the status of a law. To assimilate this fact to the sanctions of the criminal law would be like thinking of the scoring rules of a game as designed to eliminate all moves except the kicking of goals or the making of runs. This, if successful, would be the end of all games; yet only if we think of power-conferring rules as designed to make people behave in certain ways and as adding ‘nullity’ as a motive for obedience, can we assimilate such rules to orders backed by threats.

The confusion inherent in thinking of nullity as similar to the threatened evil or sanctions of the criminal law may be brought out in another form. In the case of the rules of the criminal law, it is logically possible and might be desirable that there should be such rules even though no punishment or other evil were threatened. It may of course be argued that in that case they would not be legal rules; none the less, we can distinguish clearly the rule prohibiting certain behaviour from the provision for penalties to be exacted if the rule is broken, and suppose the first to exist without the latter. We can, in a sense, subtract the sanction and still leave an intelligible standard of behaviour which it was designed to maintain. But we cannot logically make such a distinction between the rule requiring compliance with certain conditions, e.g. attestation for a valid will, and the so-called sanction of ‘nullity’. In this case, if failure to comply with this essential condition did not entail nullity, the rule itself could not be intelligibly said to exist without sanctions even as a non-legal rule. The provision for

nullity is part of this type of rule itself in a way which punishment attached to a rule imposing duties is not. If failure to get the ball between the posts did not mean the ‘nullity’ of not scoring, the scoring rules could not be said to exist.

The argument which we have here criticized is an attempt to show the fundamental identity of power-conferring rules wicoercive orders by widening the meaning of a sanction or threatened evil, so as to include the nullity of a legal transaction when it is vitiated by non-compliance with such rules. The second argument which we shall contakes a different, indeed an opposite, line. Instead of attempting to show that these rules are a species of coercive orders, it denies them the status of ‘law’. To exclude them it narrows the meaning of the word ‘law’. The general form of this argument, which appears in a more or less extreme form in different jurists, is to assert that what are loosely or in popular modes of expression referred to as complete rules of law, are really incomplete fragments of coercive rules which are the only ‘genuine’ rules of law.

Power-conferring rules as fragments of laws

In its extreme form this argument would deny that even the rules of the criminal law, in the words in which they are often stated, are genuine laws. It is in this form that the argument is adopted by Kelsen: ‘Law is the primary norm which stipulates the sanction’.(1) There is no law prohibiting murder: there is only a law directing officials to apply certain sanctions in certain circumstances to those who do murder. On this view, what is ordinarily thought of as the content of law, designed to guide the conduct of ordinary citizens, is merely the antecedent or ‘if-clause’ in a rule which is directed not to them but to officials, and orders them to apply certain sanctions if certain conditions are satisfied. All genuine laws, on this view, are conditional orders to officials to apply sanctions. They are all of the form, ‘If anything of a kind X is done or omitted or happens, then apply sanction of a kind Y.’

By greater and greater elaboration of the antecedent or if-clauses, legal rules of every type, including the rules conferring and defining the manner of exercise of private or public powers, can he restated in this conditional form. Thus, the provisions

1 General Theory of Law and State, p. 63. See above, P. 2.

of the Wills Act requiring two witnesses would appear as a common part of many different directions to courts to apply sanctions to an executor who, in breach of the provisions of the will, refuses to pay legacies: ‘if and only if there is a will duly witnessed containing these provisions and if… then sanctions must be applied to him.’ Similarly, a rule specifying the extent of a court’s jurisdiction would appear as a common part of the conditions to be satisfied before it applies any sanctions. So too, the rules conferring legislative powers and defining the manner and form of legislation (including the provisions of a constitution concerning the supreme legislature) can also be restated and exhibited as specifying certain common conditions on the fulfillment of which (among others) the courts are to apply the sanctions mentioned in the statutes. Thus, the theory bids us disentangle the substance from the obscuring forms; then we shall see that constitutional forms such as ‘what the Queen in Parliament enacts is law’, or the provisions of the American constitution as to the law-making power of Congress, merely specify the general conditions under which courts are to apply sanctions. These forms are essentially ‘if-clauses’, not complete rules: ‘V the Queen in Parliament has so enacted. . .’ or ‘if Congress within the limits specified in the Constitution has so enacted. . .’ are forms of conditions common to a vast number of directions to courts to apply sanctions or punish certain types of conduct.

This is a formidable and interesting theory, purporting to disclose the true, uniform nature of law latent beneath a variety of common forms and expressions which obscure it. Before we consider its defects it is to be observed that, in this extreme form, the theory involves a shift from the original conception of law as consisting of orders backed by threats of sanctions which are to be exacted when the orders are disobeyed. Instead, the central conception now is that of orders to officials to apply sanctions. On this view it is not necessary that a sanction be prescribed for the breach of every law; it is only necessary that every ‘genuine’ law shall direct the application of some sanction. So it may well be the case that an official who disregards such directions will not be punishable; and of course this is in fact often the case in many legal systems.

This general theory may, as we have said, take one of two

forms, one less extreme than the other. In the less extreme form the original conception of law (which many find intuitively more acceptable) as orders backed by threats directed to ordinary citizens, among others, is preserved at least for those rules that, on a common-sense view, refer primarily to the conduct of ordinary citizens, and not merely to officials. The rules of the criminal law, on this more moderate view, are laws as they stand, and need no recasting as fragments of other complete rules; for they are already orders backed by threats. Recasting is, however, needed in other cases. Rules which confer legal powers on private individuals are, for this as for the more extreme theory, mere fragments of the real complete laws-the orders backed by threats. These last are to be discovered by asking: what persons does the law order to do things, subject to a penalty if they do not comply? When this is known the provisions of such rules as those of the Wills Act, i837, in relation to witnesses, and other rules conferring on individuals powers and defining the conditions for valid exercise of them, may be recast as specifying some of the conditions under which ultimately such a legal duty arises. They will then appear as part of the antecedent or ‘if-clause’ of conditional orders backed by threats or rules imposing duties. ‘If and only if a will has been signed by the testator and witnessed by two witnesses in the specified manner and if… then the executor (or other legal representative) shall give effect to the provisions of the will.’ Rules relating to the formation of contract will similarly appear as mere fragments of rules ordering persons, if certain things are the case or have been said or done (if the party is of full age, has covenanted under seal or been promised consideration) to do the things which by the contract are to be done.

A recasting of rules conferring legislative powers (including the provisions of a constitution as to the supreme legislature), so as to represent them as fragments of the ‘real’ rules, may be carried through along the lines similar to those explained on page 36 in the case of the more extreme version of this theory. The only difference is that on the more moderate view the power-conferring rules are represented by the antecedents or if-clauses of rules ordering ordinary citizens, under threat of sanctions, to do things and not merely (as in the more extreme theory) as the if-clauses of directions to officials to apply sanctions.

Both versions of this theory attempt to reduce apparently distinct varieties of legal rule to a single form alleged to convey the quintessence of law. Both, in different ways, make the sanction a centrally important element, and both will fail if it is shown that law without sanctions is perfectly conceivable. This general objection must be, however, left till later. The specific criticism of both forms of the theory which we shall develop here is that they purchase the pleasing uniformity of pattern to which they reduce all laws at too high a price: that of distorting the different social functions which different types of legal rule perform. This is true of both forms of the theory, but is most evident in the recasting of the criminal law demanded by the theory in its more extreme form.

Distortion as the price of uniformly

The distortion effected by this recasting is worth considering for it illuminates many different aspects of law. There are many techniques by which society may be controlled, but the characteristic technique of the criminal law is to designate by rules certain types of behaviour as standard for the guidance either of the members of society as a whole or of special classes within it: they are expected without the aid or intervention of officials to understand the rules and to see that the rules apply to them and to conform to them. On when the law ibroken, and this primary function of the law fails, are officials concerned to identify the fact of breach and impose the threatened sanctions. What is distinctive of this technique, as compared with individuated face-to-face orders which an official, like a policeman on traffic duty, might give to a motorist, is that the members of society are left to discover the rules and conform their behaviour to them; in this sense they ‘apply’ the rules themselves to themselves, though they are provided with a motive for conformity in the sanction added to the rule. Plainly we shall conceal the characteristic way in which such rules function if we concentrate on, or make primary, the rules requiring the courts to impose the sanctions in the event of disobedience; for these latter rules make provision for the breakdown or failure of the primary purpose of the system. They may indeed be indispensable but they are ancillary.

The idea that the substantive rules of the criminal law have

as their function (and, in a broad sense, their meaning) the guidance not merely of officials operating a system of penalties, but of ordinary citizens in the activities of non-official life, cannot be eliminated without jettisoning cardinal distinctions and obscuring the specific character of law as a means of social control. A punishment for a crime, such as a fine, is not the same as a tax on a course of conduct, though both involve directions to officials to inflict the same money loss. What differentiates these ideas is that the first involves, as the second does not, an offence or breach of duty in the form of a violation of a rule set up to guide the conduct of ordinary citizens. It is true that this generally clear distinction may in certain circumstances be blurred. Taxes may be imposed not for revenue purposes but to discourage the activities taxed, though the law gives no express indications that these are to be abandoned as it does when it ‘makes them criminal’. Conversely the fines payable for some criminal offence may, because of the depreciation of money, become so small that they are cheerfully paid. They are then perhaps felt to be ‘mere taxes’, and ‘offences’ are frequent, precisely because in these circumstances the sense is lost that the rule is, like the bulk of the criminal law, meant to be taken seriously as a standard of behaviour.

It is sometimes urged in favour of theories like the one under consideration that, by recasting the law in a form of a direction to apply sanctions, an advance in clarity is made, since this form makes plain all that the ‘bad man’ wants to know about the law. This may be true but it seems an inadequate defence for the theory. Why should not law be equally if not more concerned with the ‘puzzled man’ or ‘ignorant man’ who is willing to do what is required, if only he can be told what it is? Or with the ‘man who wishes to arrange his affairs’ if only he can be told how to do it? It is of course very important, if we are to understand the law, to see how the courts administer it when they come to apply its sanctions. But this should not lead us to think that all there is to understand is what happens in courts. The principal functions of the law as a means of social control are not to be seen in private litigation or prosecutions, which represent vital but still ancillary provisions for the failures of the system. It is to be seen in the diverse ways in which the law is used to control, to guide, and to plan life out of court.

We may compare the inversion of ancillary and principal, which this extreme form of the theory makes, to the following suggestion for recasting the rules of a game. A theorist, considering the rules of cricket or baseball, might claim that he had discovered a uniformity hidden by the terminology of the rules and by the conventional claim that some were primarily addressed to players, some primarily to officials (umpire and scorer), some to both. ‘All rules’, the theorist might claim, Care really rules directing officials to do certain things under certain conditions.’ The rules that certain motions after hitting the ball constitute a ‘run’, or that being caught makes a man gout’, are really just complex directions to officials; in the one case to the scorer to write down ‘a run’ in the scoring-book and in the other to the umpire to order the man ‘off the field’. The natural protest is that the uniformity imposed on the rules by this transformation of them conceals the ways in which the rules operate, and the manner in which the players use them in guiding purposive activities, and so obscures their function in the co-operative, though competitive, social enterprise which is the game.

The less extreme form of the theory would leave the criminal law and all other laws which impose duties untouched, since these already conform to the simple model of coercive orders. But it would reduce all rules conferring and defining the manner of exercise of legal powers to this single form. It is open here to the same criticism as the extreme form of the theory. If we look at all law simply from the point of view of the persons on whom its duties are imposed, and reduce all other aspects of it to the status of more or less elaborate conditions in which duties fall on them, we treat as something merely subordinate, elements which are at least as characteristic of law and as valuable to society as duty. Rules conferring private powers must, if they are to be understood, be looked at from the point of view of those who exercise them. They appear then as an additional element introduced by the law into social life over and above that of coercive control. This is so because possession of these legal powers makes of the private citizen, who, if there were no such rules, would be a mere duty-bearer, a private legislator. He is made competent to determine the course of the law within the sphere of his contracts, trusts, wills, and other structures of rights and duties which he is enabled to

build. Why should rules which are used in this special way, and confer this huge and distinctive amenity, not be recognized as distinct from rules which impose duties, the incidence of which is indeed in part determined by the exercise of such powers? Such power-conferring rules are thought of, spoken of, and used in social life differently from rules which impose duties, and they are valued for different reasons. What other tests for difference in character could there be?

The reduction of rules conferring and defining legislative and judicial powers to statements of the conditions under which duties arise has, in the public sphere, a similar obscuring vice. Those who exercise these powers to make authoritative enactments and orders use these rules in a form of purposive activity utterly different from performance of duty or submission to coercive control. To represent such rules as mere aspects or fragments of the rules of duty is, even more than in the private sphere, to obscure the distinctive characteristics of law and of the activities possible within its framework. For the introduction into society of rules enabling legislators to change and add to the rules of duty, and judges to determine when the rules of duty have been broken, is a step forward as important to society as the invention of the wheel. Not only was it an important step; but it is one which, as we shall argue in Chapter IV, may fairly be considered as the step from the pre-legal into the legal world.

2. THE RANGE OF APPLICATION

Plainly a penal statute, of all the varieties of law, approximates most closely to the simple model of coercive orders. Yet even these laws have certain characteristics, examined in this section, to which the model is apt to blind us, and we shall not understand them till we shake off its influence. The order backed by threats is essentially the expression of a wish that others should do or abstain from doing certain things. It is, of course, possible that legislation might take this exclusively other-regarding form. An absolute monarch wielding legislative power may, in certain systems, always be considexempt from the of the laws he makes; and even in a democratic system laws may be made which do not apply to

those who made them, but only to special classes indicated in the law. But the range of application of a law is always a question of its interpretation. It may or may not be found on interpretation to exclude those who made it, and, of course, many a law is now made which imposes legal obligations on the makers of the law. Legislation, as distinct from just ordering others to do things under threats, may perfectly well have such a self-binding force. There is nothing essentially other regarding about it. This is a legal phenomenon which is puzzling only so long as we think, under the influence of the model, of the laws as always laid down by a man or men above the law for others subjected to it.

This vertical or ‘top-to-bottom’ image of law-making, so attractive in its simplicity, is something which can only be reconciled with the realities by the device of distinguishing between the legislator in his official capacity as one person and in his private capacity as another. Acting in the first capacity he then makes law which imposes obligations on other persons, including himself in his ‘private capacity’. There is nothing objectionable in these forms of expression, but the notion of different capacities, as we shall see in Chapter IV, is intelligible only in terms of power-conferring rules of law which cannot be reduced to coercive orders. Meanwhile it is to be observed that this complicated device is really quite unnecessary; we can explain the self-binding quality of legislative enactment without it. For we have to hand, both in daily life and in the law, something which will enable us to understand it far better. This is the operation of a promise which in many ways is a far better model than that of coercive orders for understanding many, though not all, features of law.

To promise is to say something which creates an obligation for the promisor: in order that words should have this kind of effect, rules must exist providing that if words are used by appropriate persons on appropriate occasions (i.e. by sane persons understanding their position and free from various sorts of pressure) those who use these words shall be bound to do the things designated by them. So, when we promise, we make use of specified procedures to change our own moral situation by imposing obligations on ourselves and conferring rights on others; in lawyers’ parlance we exercise ‘a power’ conferred by

rules to do this. It would be indeed possible, but not helpful, to distinguish two persons ‘within’ the promisor: one acting in the capacity of creator of obligations and the other in the capacity of person bound: and to think of one as ordering the other to do something.

Equally we can dispense with this device for understanding the self-binding force of legislation. For the making of a law, like the making of a promise, presupposes the existence of certain rules which govern the process: words said or written by the persons qualified by these rules, and following the procedure specified by them, create obligations for all within the ambit designated explicitly or implicitly by the words. These may include those who take part in the legislative process.

Of course, though there is this analogy which explains the self-binding character of legislation, there are many differences between the making of promises and the making of laws. The rules governing the latter are very much more complex and the bilateral character of a promise is not present. There is usually no person in the special position of the promisee to whom the promise is made and who has a special, if not the only, claim to its performance. In these respects certain other forms of self-imposition of obligation known to English law, such as that whereby a person declares himself trustee of property for other persons, offer a closer analogy to the self-binding aspect of legislation. Yet, in general, making of law by enactment is something we shall understand best by considering such private ways of creating particular legal obligations.

What is most needed as a corrective to the model of coercive orders or rules, is a fresh conception of legislation as the introduction or modification of general standards of behaviour to be followed by the society generally. The legislator is not necessarily like the giver of orders to another: someone by definition outside the reach of what he does. Like the giver of a promise he exercises powers conferred by rules: very often he may, as the promisor must, fall within their ambit.

3. MODES OF ORIGIN

So far we have confined our discussion of the varieties of law to statutes which, in spite of the differences we have emphasized, have one salient point of analogy with coercive

orders. The enactment of a law, like the giving of an order, is a deliberate datable act. Those who take part in legislation consciously operate a procedure for making law, just as the man who gives an order consciously uses a form of words to secure recognition of, and compliance with, his intentions. Accordingly, theories which use the model of coercive orders in the analysis of law make the claim that all law can be seen, if we strip away the disguises, to have this point of resemblance to legislation and to owe its status as law to a deliberate law-creating act. The type of law which most obviously conflicts with this claim is custom; but the discussion whether custom is ‘really’ law has often been confused by the failure to disentangle two distinct issues. The first is whether ‘custom as such’ is law or not. The meaning and good sense of the denial that custom, as such, is law lie in the simple truth that, in any society, there are many customs which form no part of its law. Failure to take off a hat to a lady is not a breach of any rule of law; it has no legal status save that of being permitted by law. This shows that custom is law only if it is one of a class of customs which is ‘recognized’ as law by a particular legal system. The second issue concerns the meaning of ‘legal recognition’. What is it for a custom to be legally recognized? Does it, as the model of coercive orders requires, consist in the fact that someone, perhaps ‘the sovereign’ or his agent, has ordered the custom to be obeyed, so that its status as law is due to something which, in this respect, resembles the act of legislation?

Custom is not in the modern world a very important ‘source’ of law. It is usually a subordinate one, in the sense that the legislature may by statute deprive a customary rule of legal status; and in many systems the tests which courts apply, in determining whether a custom is fit for legal recognition, incorporate such fluid notions as that of ‘reasonableness’ which provide at least some foundation for the view that in accepting or rejecting a custom courts are exercising a virtually uncontrolled discretion. Even so, to attribute the legal status of a custom to the fact that a court or the legislature or the sovereign has so ‘ordered’ is to adopt a theory which can only be carried through if a meaning is given to ‘order’ so extended as to rob the theory of its point.

In order to present this doctrine of legal recognition we must

recall the part played by the sovereign in the conception of law as coercive orders. According to this theory, law is the order of either the sovereign or of his subordinate whom he may choose to give orders on his behalf In the first case law is made by the order of the sovereign in the most literal sense of ‘order’. In the second case the order given by the subordinate will only rank as law if it is, in its own turn, given in pursuance of some order issued by the sovereign. The submust have some authority delegated by the sovereign to issue orders on his behalf. Sometimes this may be conferred by an express direction to a minister to ‘make orders’ on a certain subject-matter. If the theory stopped here, plainly it could not account for the facts; so it is extended and claims that sometimes the sovereign may express his will in direct fashion. His omay be ‘tacit’; he may, without giving an express order, signify his intentions that his subjects should do certain things, by not interfering when his subordinates both give orders to his subjects and punish them for disobedience.

A military example may make the idea of a ‘tacit order’ as clear as it is possible to make it. A sergeant who himself regularly obeys his superiors, orders his men to do certain fatigues and punishes them when they disobey. The general, learning of this, allows things to go on, though if he had ordered the sergeant to stop the fatigues he would have been obeyed. In these circumstances the general may be considered tacitly to have expressed his will that the men should do the fatigues. His non-interference, when he could have interfered, is a silent substitute for the words he might have used in ordering the fatigues.

It is in this light that we are asked to view customary rules which have the status of law in a legal system. Till the courts apply them in particular cases such rules are mere customs, in no sense law. When the courts use them, and make orders in accordance with them which are enforced, then for the first time these rules receive legal recognition. The sovereign who might have interfered has tacitly ordered his subjects to obey the judges’ orders ‘fashioned’ on pre-existing custom.

This account of the legal status of custom is open to two different criticisms. The first is that it is not necessarily the case that until they are used in litigation customary rules have no status as law. The assertion that this is necessarily the case is

either medogmatic or fails to distinguish what is necessary from what may be the case in certain systems. Why, if statutes made in certain defined ways are law before they are applied by the courts in particular cases, should not customs of certain defined kinds also be so? Why should it not be true that, just as the courts recognize as binding the general principle that what the legislature enacts is law, they also recognize as binding another general principle: that customs of certain defined sorts are law? What absurdity is there in the contention that, when particular cases arise, courts apply custom, as they apply statute, as something which is already law and because it is law? It is, of course, possible that a legal system should provide that no customary rule should have the status of law until the courts, in their uncontrolled discretion, declared that it should. But this would be just one possibility, which cannot exclude the possibility of systems in which the courts have no such discretion. How can it establish the general contention that a customary rule cannot have the status of law till applied in court?

The answers made to these objections sometimes reduce to no more than the reassertion of the dogma that nothing can be law unless and until it has been ordered by someone to be so. The suggested parallel between the relationships of courts to statute and to custom is then rejected on the ground that, before it is applied by a court, a statute has already been ‘ordered’ but a custom has not. Less dogmatic arguments are inadequate because they make too much of the particular arrangements of particular systems. The fact that in English law a custom may be rejected by the courts if it fails to pass the test of ‘reasonableness’ is sometimes said to show that it is not law till applied by the courts. This again could at the most only prove something about custom in English law. Even this cannot be established, unless it is true, as some claim, that it is meaningless to distinguish a system in which courts are only bound to apply certain customary rules if they are reasonable from a system in which they have an uncontrolled discretion.

The second criticism of the theory that custom, when it is law, owes its legal status to the sovereign’s tacit order is more fundamental. Even if it is conceded that it is not law till enforced by the court in the particular case, is it possible to treat the failure of the sovereign to interfere as a tacit expression of

the wish that the rules should be obeyed? Even in the very simple military example on page 46 it is not a necessary inference from the fact that the general did not interfere with the sergeant’s orders that he wished them to be obeyed. He may merely have wished to placate a valued subordinate and hoped that the men would find some way of evading the fatigues. No doubt we might in some cases draw the inference that he wished the fatigues to be done, but if we did this, a material part of our evidence would be the fact that the general knew that the orders had been given, had time to consider them, and decided to do nothing. The main objection to the use of the idea of tacit expressions of the sovereign’s will to explain the legal status of custom is that, in any modern state, it is rarely possible to ascribe such knowledge, consideration and decision not to interfere to the ‘sovereign’, whether we identify the sovereign with the supreme legislature or the electorate. It is, of course, true that in most legal systems custom is a source of law subordinate to statute. This means that the legislature could take away their legal status; but failure to do this may not be a sign of the legislator’s wishes. Only very rarely is the attention of a legislature, and still more rarely that of the electorate, turned to the customary rules applied by courts. Their non-interference can therefore not be compared to the general’s non-interference with his sergeant; even if, in his case, we are prepared to infer from it a wish that his subordinate’s orders be obeyed.

In what then does the legal recognition of custom consist? To what does a customary rule owe its legal status, if it is not to the order of the court which applied it to a particular case or to the tacit order of the supreme law-making power? How can it, like statute, be law before the court applies it? These questions can only be fully answered when we have scrutinized in detail, as we shall in the next chapter, the doctrine that, where there is law, there must be some sovereign person or persons whose general orders, explicit or tacit, alone are law. Meanwhile we may summarize the conclusions of this chapter as follows:

The theory of law as coercive orders meets at the outset with the objection that there are varieties of law found in all systems which, in three principal respects, do not fit this description. First, even a penal statute, which comes nearest to it, has often

a range of application different from that of orders given to others; for such a law may impose duties on those who make it as well as on others. Secondly, other statutes are unlike orders in that they do not require persons to do things, but may confer powers on them; they do not impose duties but offer facilities for the free creation of legal rights and duties within the coercive framework of the law. Thirdly, though the enactment of a statute is in some ways analogous to the giving of an order, some rules of law originate in custom and do not owe their legal status to any such conscious law-creating act.

To defend the theory against these objections a variety of expedients have been adopted. The originally simple idea of a threat of evil or ‘sanction’ has been stretched to include the nullity of a legal transaction; the notion of a legal rule has been narrowed so as to exclude rules which confer powers, as being mere fragments of law; within the single natural person of the legislator whose enactments are self-binding two persons have been discovered; the notion of an order has been extended from a verbal to a ‘tacit’ expression of will, consisting in non-interference with orders given by subordinates. Notwithstanding the ingenuity of these devices, the model of orders backed by threats obscures more of law than it reveals; the effort to reduce to this single simple form the variety of laws ends by imposing upon them a spurious uniformity. Indeed, to look for uniformity here may be a mistake, for, as we shall argue in Chapter V, a distinguish, if not the disti, characteristic of law lies in its fusion of different types of rule.

Chapter 5: Law As The Union of Primary and Secondary Rules

1. A Fresh Start

In the last three chapters we have seen that, at various crucial points, the simple model of law as the sovereign’s coercive orders failed to reproduce some of the salient features of a legal system. To demonstrate this, we did not find it necessary to invoke (as earlier critics have done) international law or primitive law which some may regard as disputable or borderline examples of law; instead we pointed to certain familiar features of municipal law in a modern state, and showed that these were either distorted or altogether unrepresented in this over-simple theory.

The main ways in which the theory failed are instructive enough to merit a second summary. First, it became clear that though of all the varieties of law, a criminal statute, forbidding or enjoining certain actions under penalty, most resembles orders backed by threats given by one person to others, such a statute none the less differs from such orders in the important respect that it commonly applies to those who enact it and not merely to others. Secondly, there are other varieties of law, notably those conferring legal powers to adjudicate or legislate (public powers) or to create or vary legal relations (private powers) which cannot, without absurdity, be construed as orders backed by threats. Thirdly, there are legal rules which differ from orders in their mode of origin, because they are not brought into being by anything analogous to explicit prescription. Finally, the analysis of law in terms of the sovereign, habitually obeyed and necessarily exempt from all legal limitation, failed to account for the continuity of legislative authority characteristic of a modern legal system, and the sovereign person or persons could not be identified with either the electorate or the legislature of a modern state.

It will be recalled that in thus criticizing the conception of law as the sovereign’s coercive orders we considered also a number of ancillary devices which were brought in at the cost of corrupting the primitive simplicity of the theory to rescue it from its difficulties. But these too failed. One device, the notion of a tacit order, seemed to have no application to the complex actualities of a modern legal system, but only to very much simpler situations like that of a general who deliberately refrains from interfering with orders given by his subordinates. Other devices, such as that of treating power-conferring rules as mere fragments of rules imposing duties, or treating all rules as directed only to officials, distort the ways in which these are spoken of, thought of, and actually used in social life. This had no better claim to our assent than the theory that all the rules of a game are ‘really’ directions to the umpire and the scorer. The device, designed to reconcile the self-binding character of legislation with the theory that a statute is an order given to others, was to distinguish the legislators acting in their official capacity, as one person ordering others who include themselves in their private capacities. This device, impeccable in itself, involved supplementing the theory with something it does not contain: this is the notion of a rule defining what must be done to legislate; for it is only in conforming with such a rule that legislators have an official capacity and a separate personality to be contrasted with themselves as private individuals.

The last three chapters are therefore the record of a failure and there is plainly need for a fresh start. Yet the failure is an instructive one, worth the detailed consideration we have given it, because at each point where the theory failed to fit the facts it was possible to see at least in outline why it was bound to fail and what is required for a better account. The root cause of failure is that the elements out of which the theory was constructed, viz. the ideas of orders, obedience, habits, and threats, do not include, and cannot by their combination yield, the idea of a rule, without which we cannot hope to elucidate even the most elementary forms of law. It is true that the idea of a rule is by no means a simple one: we have already seen in Chapter III the need, if we are to do justice to the complexity of a legal system, to discriminate

between two different though related types. Under rules of the one type, which may well be considered the basic or primary type, human beings are required to do or abstain from certain actions, whether they wish to or not. Rules of the other type are in a sense parasitic upon or secondary to the first; for they provide that human beings may by doing or saying certain things introduce new rules of the primary type, extinguish or modify old ones, or in various ways determine their incidence or control their operations. Rules of the first type impose duties; rules of the second type confer powers, public or private. Rules of the first type concern actions involving physical movement or changes; rules of the second type provide for operations which lead not merely to physical movement or change, but to the creation or variation of duties or obligations.

We have already given some preliminary analysis of what is involved in the assertion that rules of these two types exist among a given social group, and in this chapter we shall not only carry this analysis a little farther but we shall make the general claim that in the combination of these two types of rule there lies what Austin wrongly claimed to have found in the notion of coercive orders, namely, ‘the key to the science of jurisprudence’. We shall not indeed claim that wherever the word ‘law’ is ‘properly’ used this combination of primary and secondary rules is to be found; for it is clear that the diverse range of cases of which the word ‘law’ is used are not linked by any such simple uniformity, but by less direct relations–often of analogy of either form or content-to a central case. What we shall attempt to show, in this and the succeeding chapters, is that most of the features of law which have proved most perplexing and have both provoked and eluded the search for definition can best be rendered clear, if these two types of rule and the interplay between them are understood. We accord this union of elements a central place because of their explanatory power in elucidating the concepts that constitute the framework of legal thought. The justification for the use of the word ‘law’ for a range of apparently heterogeneous cases is a secondary matter which can be undertaken when the central elements have been grasped.

2. THE IDEA OF OBLIGATION

It will be recalled that the theory of law as coercive orders, notwithstanding its errors, started from the perfectly correct appreciation of the fact that where there is law, there human conduct is made in some sense non-optional or obligatory. In choosing this starting-point the theory was well inspired, and in building up a new account of law in terms of the interplay of primary and secondary rules we too shall start from the same idea. It is, however, here, at this crucial first step, that we have perhaps most to learn from the theory’s errors.

Let us recall the gunman situation. A orders B to hand over his money and threatens to shoot him if he does not comply. According to the theory of coercive orders this situation illustrates the notion of obligation or duty in general. Legal obligation is to be fin this situation writ large; A must be the sovereign habitually obeyed and the orders must be general, prescribing courses of conduct not single actions. The plausibility of the claim that the gunman situation displays the meaning of obligation lies in the fact that it is certainly one in which we would say that B, if he obeyed, was ‘obliged’ to hand over his money. It is, however, equally certain that we should misdescribe the situation if we said, on these facts, that B ‘had an obligation’ or a ‘duty’ to hand overthe money. So from the start it is clear that we need something else for an understanding of the idea of obligation. There is a difference, yet to be explained, between the assertion that someone was obliged to do something and the assertion that he had an obligation to do it. The first is often a statement about the beliefs and motives with which an action is done: B was obliged to hand over his money may simply mean, as it does in the gunman case, that he believed that some harm or other unpleasant consequences would befall him if he did not hand it over and he handed it over to avoid those consequences. In such cases the prospect of what would happen to the agent if he disobeyed has rendered something he would otherwise have preferred to have done (keep the money) less eligible.

Two further elements slightly complicate the elucidation of the notion of being obliged to do something. It seems clear that we should not think of B as obliged to hand over the money if the threatened harm was, according to common

judgements, trivial in comparison with the disadvantage or serious consequences, either for B or for others, of complying with the orders, as it would be, for example, if A merely threatened to pinch B. Nor perhaps should we say that B was obliged, if there were no reasonable grounds for thinking that A could or would probably implement his threat of relatively serious harm. Yet, though such references to common judgements of comparative harm and reasonable estimates of likelihood, are implicit in this notion, the statement that a person was obliged to obey someone is, in the main, a psychological one referring to the beliefs and motives with which an action was done. But the statement that someone had an obligation to do something is of a very different type and there are many signs of this difference. Thus not only is it the case that the facts about B’s action and his beliefs and motives in the gunman case, though sufficient to warrant the statement that B was obliged to hand over his purse, are not sufficient to warrant the statement that he had an obligation to do this; it is also the case that facts of this sort, i.e. facts about beliefs and motives, are not necessary for the truth of a statement that a person had an obligation to do something. Thus the statement that a person had an obligation, e.g. to tell the truth or report for military service, remains true even if he believed (reasonably or unreasonably) that he would never be found out and had nothing to fear from disobedience. Moreover, whereas the statement that he had this obligation is quite independent of the question whether or not he in fact reported for service, the statement that someone was obliged to do something, normally carries the implication that he actually did it.

Some theorists, Austin among them, seeing perhaps the general irrelevance of the person’s beliefs, fears, and motives to the question whether he had an obligation to do something, have defined this notion not in terms of these subjective facts, but in terms of the chance or likelihood that the person having the obligation will suffer a punishment or ‘evil’ at the hands of others in the event of disobedience. This, in effect, treats statements of obligation not as psychological statements but as predictions or assessments of chances of incurring punishment or ‘evil’. To many later theorists this

has appeared as a revelation, bringing down to earth an elusive notion and restating it in the same clear, hard, empirical terms as are used in science. It has, indeed, been accepted sometimes as the only alternative to metaphysical conceptions of obligation or duty as invisible objects mysteriously existing ‘above’ or ‘behind’ the world of ordinary, observable facts. But there are many reasons for rejecting this interpretation of statements of obligation as predictions, and it is not, in fact, the only alternative to obscure metaphysics.

The fundamental objection is that the predictive interpretation obscures the fact that, where rules exist, deviations from them are not merely grounds for a prediction that hostile reactions will follow or that a court will apply sanctions to those who break them, but are also a reason or justification for such reaction and for applying the sanctions. We have already drawn attention in Chapter IV to this neglect of the internal aspect of rules and we shall elaborate it later in this chapter.

There is, however, a second, simpler, objection to the predictive interpretation of obligation. If it were true that the statement that a person had an obligation meant that he was likely to suffer in the event of disobedience, it would be a contradiction to say that he had an obligation, e.g. to report for military service but that, owing to the fact that he had escaped from the jurisdiction, or had successfully bribed the police or the court, there was not the slightest chance of his being caught or made to suffer. In fact, there is no contradiction in saying this, and such statements are often made and understood.

It is, of course, true that in a normal legal system, where sanctions are exacted for a high proportion of offences, an offender usually runs a risk of punishment; so, usually the statement that a person has an obligation and the statement that he is likely to suffer for disobedience will both be true together. Indeed, the connection between these two statements is somewhat stronger than this: at least in a municipal system it may well be true that, unless in general sanctions were likely to be exacted from offenders, there would be little or no point in making particular statements about a person’s obligations. In this sense, such statements may be said to presuppose

belief in the continued normal operation of the system of sanctions much as the statement ‘he is out’ in cricket presupposes, though it does not assert, that players, umpire, and scorer will probably take the usual steps. None the less, it is crucial for the understanding of the idea of obligation to see that in individual cases the statement that a person has an obligation under some rule and the prediction that he is likely to suffer for disobedience may diverge.

It is clear that obligation is not to be found in the gunman situation, though the simpler notion of being obliged to do something may well he defined in the elements present there. To understand the general idea of obligation as a necessary preliminary to understanding it in its legal form, we must turn to a different social situation which, unlike the gunman situation, includes the existence of social rules; for this situation contributes to the meaning of the statement that a person has an obligation in two ways. First, the existence of such rules, making certain types of behaviour a standard, is the normal, though unstated, background or proper context for such a statement; and, secondly, the distinctive function of such statement is to apply such a general rule to a particular person by calling attention to the fact that his case falls under it. We have already seen in Chapter IV that there is involved in the existence of any social rules a combination of regular conduct with a distinctive attitude to that conduct as a standard. We have also seen the main ways in which these differ from mere social habits, and how the varied normative vocabulary (‘ought’, ‘must’, ‘should’) is used to draw attention to the standard and to deviations from it, and to formulate the demands, criticisms, or acknowledgements which may be based on it. Of this class of normative words the words ‘obligation’ and ‘duty’ form an important sub-class, carrying with them certain implications not usually present in the others. Hence, though a grasp of the elements generally differentiating social rules from mere habits is certainly indispensable for understanding the notion of obligation or duty, it is not sufficient by itself.

The statement that someone has or is under an obligation does indeed imply the existence of a rule; yet it is not always the case that where rules existhe standard of behaviour

required by them is conceived of in terms of obligation. ‘He ought to have’ and ‘He had an obligation to’ are not always interchangeable expressions, even though they are alike in carrying an implicit reference to existing standards of conduct or are used in drawing conclusions in particular cases from a general rule. Rules of etiquette or correct speech are certainly rules: they are more than convergent habits or regularities of behaviour; they are taught and efforts are made to maintain them; they are used in criticizing our own and other people’s behaviour in the characteristic normative vocabulary. ‘You ought to take your hat off, ‘It is wrong to say “you was”‘. But to use in connection with rules of this kind the words ‘obligation’ or ‘duty’ would be misleading and not merely stylistically odd. It would misdescribe a social situation; for though the line separating rules of obligation from others is at points a vague one, yet the main rationale of the distinction is fairly clear.

Rules are conceived and spoken of as imposing obligations when the general demand for conformity is insistent and the social pressure brought to bear upon those who deviate or threaten to deviate is great. Such rules may be wholly customary in origin: there may be no centrally organized system of punishments for breach of the rules; the social pressure may take only the form of a general diffused hostile or critical reaction which may stop short of physical sanctions. It may be limited to verbal manifestations of disapproval or of appeals to the individuals’ respect for the rule violated; it may depend heavily on the operation of feelings of shame, remorse, and guilt. When the pressure is of this last-mentioned kind we may be inclined to classify the rules as part of the morality of the social group and the obligation under the rules as moral obligation. Conversely, when physical sanctions are prominent or usual among the forms of pressure, even though these are neither closely defined nor administered by officials but are left to the community at large, we shall be inclined to classify the rules as a primitive or rudimentary form of law. We may, of course, find both these types of serious social pressure behind what is, in an obvious sense, the same rule of conduct; sometimes this may occur with no indication that one of them is peculiarly appropriate as primary and the

other secondary, and then the question whether we are confronted with a rule of morality or rudimentary law may not be susceptible of an answer. But for the moment the possibility of drawing the line between law and morals need not detain us. What is important is that the insistence on importance or seriousness of social pressure behind the rules is the primary factor determining whether they are thought of as giving rise to obligations.

Two other characteristics of obligation go naturally together with this primary one. The rules supported by this serious pressure are thought important because they are believed to be necessary to the maintenance of social life or some highly prized feature of it. Characteristically, rules so obviously essential as those which restrict the free use of violence are thought of in terms of obligation. So too rules which require honesty or truth or require the keeping of promises, or specify what is to be done by one who performs a distinctive role or function in the social group are thought of in terms of either ‘obligation’ or perhaps more often ‘duty’. Secondly, it is generally recognized that the conduct required by these rules may, while benefiting others, conflict with what the person who owes the duty may wish to do. Hence obligations and duties are thought of as characteristically involving sacrifice or renunciation, and the standing possibility of conflict between obligation or duty and interest is, in all societies, among the truisms of both the lawyer and the moralist.

The figure of a bond binding the person obligated, which is buried in the word ‘obligation’, and the similar notion of a debt latent in the word ‘duty’ are explicable in terms of these three factors, which distinguish rules of obligation or duty from other rules. In this figure, which haunts much legal thought, the social pressure appears as a chain binding those who have obligations so that they are not free to do what they want. The other end of the chain is sometimes held by the group or their official representatives, who insist on performance or exact the penalty: sometimes it is entrusted by the group to a private individual who may choose whether or not to insist on performance or its equivalent in value to him. The first situation typifies the duties or obligations of criminal law and the second those of civil law where we think

of private individuals having rights correlative to the obligations.

Natural and perhaps illuminating though these figures or metaphors are, we must not allow them to trap us into a misleading conception of obligation as essentially consisting in some feeling of pressure or compulsion experienced by those who have obligations. The fact that rules of obligation are generally supported by serious social pressure does not entail that to have an obligation under the rules is to experience feelings of compulsion or pressure. Hence there is no contradiction in saying of some hardened swindler, and it may often be true, that he had an obligation to pay the rent but felt no pressure to pay when he made off without doing so. To feel obliged and to have an obligation are different though frequently concomitant things. To identify them would be one way of misinterpreting, in terms of psychological feelings, the important internal aspect of rules to which we drew attention in Chapter III.

Indeed, the internal aspect of rules is something to which we must again refer before we can dispose finally of the claims of the predictive theory. For an advocate of that theory may well ask why, if social pressure is so important a feature of rules of obligation, we are yet so concerned to stress the inadequacies of the predictive theory; for it gives this very feature a central place by defining obligation in terms of the likelihood that threatened punishment or hostile reaction will follow deviation from certain lines of conduct. The difference may seem slight between the analysis of a statement of obligation as a prediction, or assessment of the chances, of hostile reaction to deviation, and our own contention that though this statement presupposes a background in which deviations from rules are generally met by hostile reactions, yet its characteristic use is not to predict this but to say that a person’s case falls under such a rule. In fact, however, this difference is not a slight one. Indeed, until its importance is grasped, we cannot properly understand the whole distinctive style of human thought, speech, and action which is involved in the existence of rules and which constitutes the normative structure of society.

The following contrast again in terms of the ‘internal’ and

external’ aspect of rules may serve to mark what gives this distinction its great importance for the understanding not only of law but of the structure of any society. When a social group has certain rules of conduct, this fact afford an opportunity for many closely related yet different kinds of assertion; for it is possible to be concerned with the rules, either merely as an observer who does not himself accept them, or as a member of the group which accepts and uses them as guides to conduct. We may call these respectively the ‘external’ and the ‘internal points of view’. Statements made from the external point of view may themselves be of different kinds. For the observer may, without accepting the rules himself, assert that the group accepts the rules, and thus may from outside refer to the way in which they are concerned with them from the internal point of view. But whatever the rules are, whether they are those of games, like chess or cr, or moralor legal rules, we can if we choose occupy the position of an observer who does not even refer in this way to the internal point of view of the group. Such an observer is content merely to record the regularities of observable behaviour in which conformity with the rules partly consists and those further regularities, in the form of the hostile reaction, reproofs, or punishments, with which deviations from the rules are met. After a time the external observer may, on the basis of the regularities observed, correlate deviation with hostile reaction, and be able to predict with a fair measure of success, and to assess the chances that a deviation from the group’s normal behaviour will meet with hostile reaction or punishment. Such knowledge may not only reveal much about the group, but might enable him to live among them without unpleasant consequences which would attend one who attempted to do so without such knowledge.

If, however, the observer really keeps austerely to this extreme external point of view and does not give any account of the manner in which members of the group who accept the rules view their own regular behaviour, his description of their life cannot be in terms of rules at all, and so not in the terms of the rule-dependent notions of obligation or duty. Instead, it will be in terms of observable regularities of conduct, predictions, probabilities, and signs. For such an observer,

deviations by a member of the group from normal conduct will be a sign that hostile reaction is likely to follow, and nothing more. His view will be like the view of one who, having observed the working of a traffic signal in a busy street for some time, limits himself to saying that when the light turns red there is a high probability that the traffic will Stop. He treats the light merely as a natural sign that people will behave in certain ways, as clouds are a sign that rain will come. In so doing he will miss out a whole dimension of the social life of those whom he is watching, since for them the red light is not merely a sign that others will stop: they look upon it as a signal for them to stop, and so a reason for stopping in conformity to rules which make stopping when the light is red a standard of behaviour and an obligation. To mention this is to bring into the account the way in which the group regards its own behaviour. It is to refer to the internal aspect of rules seen from their internal point of view.

The external point of view may very nearly reproduce the way in which the rules function in the lives of certain members of the group, namely those who reject its rules and are only concerned with them when and because they judge that unpleasant consequences are likely to follow violation. Their point of view will need for its expression, ‘I was obliged to do it’, ‘I am likely to suffer for it if. . .’, ‘You will probably suffer for it if…… They will do that to you if. . .’. But they will not need forms of expression like ‘I had an obligation’ or ‘You have an obligation’ for these are required only by those who see their own and other persons’ conduct from the internal point of view. What the external point of view, which limits itself to the observable regularities of behaviour, cannot reproduce is the way in which the rules function as rules in the lives of those who normally are the majority of society. These are the officials, lawyers, or private persons who use them, in one situation after another, as guides to the conduct of social life, as the basis for claims, demands, admissions, criticism, or punishment, viz., in all the familiar transactions of life according to rules. For them the violation of a rule is not merely a basis for the prediction that a hostile reaction will follow but a reason for hostility.

At any given moment the life of any society which lives by

rules, legal or not, is likely to consist in a tension between those who, on the one hand, accept and voluntarily co-operate in maintaining the rules, and so see their own and other persons’ behaviour in terms of the rules, and those who, on the other hand, reject the rules and attend to them only from the external point of view as a sign of possible punishment. One of the difficulties facing any legal theory anxious to do justice to the complexity of the facts is to remember the presence of both these points of view and not to define one of them out of existence. Perhaps all our criticisms of the predictive theory of obligation may be best summarized as the accusation that this is what it does to the internal aspect of obligatory rules.

3. THE ELEMENTS OF LAW

It is, of course, possible to imagine a society without a legislature, courts, or officials of any kind. Indeed, there are many studies of primitive communities which not only claim that this possibility is realized but depict in detail the life of a society where the only means of social control is that general attitude of the group towards its own standard modes of behaviour in terms of which we have characterized rules of obligation. A social structure of this kind is often referred to as one of ‘custom’; but we shall not use this term, because it often implies that the customary rules are very old and supported with less social pressure than other rules. To avoid these implications we shall refer to such a social structure as one of primary rules of obligation. If a society is to live by such primary rules alone, there are certain conditions which, granted a few of the most obvious truisms about human nature and the world we live in, must clearly be satisfied. The first of these conditions is that the rules must contain in some form restrictions on the free use of violence, theft, and deception to which human beings are tempted but which they must, in general, repress, if they are to coexist in close proximity to each other. Such rules are in fact always found in the primitive societies of which we have knowledge, together with a variety of others imposing on individuals various positive duties to perform services or make contributions to the common life. Secondly, though such a society may exhibit the tension,

already described, between those who accept the rules and those who reject the rules except where fear of social pressure induces them to conform, it is plain that the latter cannot be more than a minority, if so loosely organized a society of persons, approximately equal in physical strength, is to endure: for otherwise those who reject the rules would have too little social pressure to fear. This too is confirmed by what we know of primitive communities where, though there are dissidents and malefactors, the majority live by the rules seen from the internal point of view.

More important for our present purpose is the following consideration. It is plain that only a small community closely knit by ties of kinship, common sentiment, and belief, and placed in a stable environment, could live successfully by such a regime of unofficial rules. In any other conditions such a simple form of social control must prove defective and will require supplementation in different ways. In the first place, the rules by which the group lives will not form a system, but will simply be a set of separate status, without any identifying or common mark, except of course that they are the rules which a particular group of human beings accepts. They will in this respect resemble our own rules of etiquette. Hence if doubts arise as to what the rules are or as to the precise scope of some given rule, there will be no procedure for settling this doubt, either by reference to an authoritative text or to an official whose declarations on this point are authoritative. For, plainly, such a procedure and the acknowledge of either authoritative text or persons involve the existence of rules of a type different from the rules of obligation or duty which ex hypothesis are all that the group has. This defect in the simple social structure of primary rules we may call its uncertainty.

A second defect is the static character of the rules. The mode of in the rules known to such a society will be the slow process of growth, whereby courses of conduct once thought optional become first habitual or usual, and then obligatory, and the converse process of decay, when deviations, once severely dealt with, are first tolerated and then pass unnoticed. There will be no means, in such a society, of deliberately adapting the rules to changing circumstances,

either by eliminating old rules or introducing new ones: for, again, the possibility of doing this presupposes the existence of rules of a different type from the primary rules of obligation by which alone the society lives. In an extreme case the rules may be static in a more drastic sense. This, though never perhaps fully realized in any actual community, is worth considering because the remedy for it is something very characteristic of law. In this extreme case, not only would there be no way of deliberately changing the general rules, but the obligations which arise under the rules in particular cases could not be varied or modified by the deliberate choice of any individual. Each individual would simply have fixed obligations or duties to do or abstain from doing certain things. It might indeed very often be the case that others would benefit from the performance of these obligations; yet if there are only primary rules of obligation they would have no power to release those bound from performance or to transfer to others the benefits which would accrue from performance. For such operations of release or transfer create changes in the initial positions of individuals under the primary rules of obligation, and for these operations to be possible there must be rules of a sort different from the primary rules.

The third defect of this simple form of social life is the inefficiency of the diffuse social pressure by which the rules are maintained. Disputes as to whether an admitted rule has or has not been violated will always occur and will, in any but the smallest societies, continue interminably, if there is no agency specially empowered to ascertain finally, and authoritatively, the fact of violation. Lack of such final and authoritative determinations is to be distinguished from another weakness associated with it. This is the fact that punishments for violations of the rules, and other forms of social pressure involving physical effort or the use of force, are not administered by a special agency but are left to the individuals affected or to the group at large. It is obvious that the waste of time involved in the group’s unorganized efforts to catch and punish offenders, and the smouldering vendettas which may result from self-help in the absence of an official monopoly of sanctions’, may be serious. The history of law does, however, strongly suggest that the lack of official agencies to determine

authoritatively the fact of violation of the rules is a much more serious defect; for many societies have remedies for this defect long before the other.

The remedy for each of these three main defects in this simplest form of social structure consists in supplementing the primary rules of obligation with secondary rules which are rules of a different kind. The introduction of the remedy for each defect might, in itself, be considered a step from the pre-legal into the legal world; since each remedy brings with it many elements that permeate law: certainly all three remedies together are enough to convert the regime of primary rules into what is indisputably a legal system. We shall consider in turn each of these remedies and show why law may most illuminatingly be characterized as a union of primary rules of obligation with such secondary rules. Before we do this, however, the following general points should be noted. Though the remedies consist in the introduction of rules which are certainly different from each other, as well as from the primary rules of obligation which they supplement, they have important features in common and are connected in various ways. Thus they may all be said to be on a different level from the primary rules, for they are all about such rules; in the sense that while primary rules are concerned with the actions that individuals must or must not do, these secondary rules are all concerned with the primary rules themselves. They specify the ways in which the primary rules may be conclusively ascertained, introduced, eliminated, varied, and the fact of their violation conclusively determined.

The simplest form of remedy for the uncertainty of the regime of primary rules is the introduction of what we shall call a ‘rule of recognition’. This will specify some feature or features possession of which by a suggested rule is taken as a conclusive affirmative indication that it is a rule of the group to be supported by the social pressure it exerts. The existence of such a rule of recognition may take any of a huge variety of forms, simple or complex. It may, as in the early law of many societies, be no more than that an authoritative list or text of the rules is to be found in a written document or carved on some public monument. No doubt as a matter of history this step from the pre-legal to the legal may be accomplished in

distinguishable stages, of which the first is the mere reduction to writing of hitherto unwritten rules. This is not itself the crucial step, though it is a very important one: what is crucial is the acknowledgement of reference to the writing or inscription as authoritative, i.e. as the proper way of disposing of doubts as to the existence of the rule. Where there is such an acknowledgement there is a very simple form of secondary rule: a rule for conclusive identification of the primary rules of obligation.

In a developed legal system the rules of recognition are of course more complex; instead of identifying rules exclusively by reference to a text or list they do so by reference to some general characteristic possessed by the primary rules. This may be the fact of their having been enacted by a specific body, or their long customary practice, or their relation to judicial decisions. Moreover, where more than one of such general characteristics are treated as identifying criteria, provision may be made for their possible conflict by their arrangement in an order of superiority, as by the common subordination of custom or precedent to statute, the latter being a ‘superior source’ of law. Such complexity may make the rules of recognition in a modern legal system seem very different from the simple acceptance of an authoritative text: yet even in this simplest form, such a rule brings with it many elements distinctive of law. By providing an authoritative mark it introduces, although in embryonic form, the idea of a legal system: for the rules are now not just a discrete unconnected set but are, in a simple way, unified. Further, in the simple operation of identifying a given rule as possessing the required feature of being an item on an authoritative list of rules we have the germ of the idea of legal validity.

The remedy for the static quality of the regime of primarules consists in the introduction of what we shall call ‘rules of change’. The simplest form of such a rule is that which empowers an individual or body of persons to introduce new primary rules for the conduct of the life of the group, or of some class within it, and to eliminate old rules. As we have already argued in Chapter IV it is in terms of such a rule, and not in terms of orders backed by threats, that the ideas of legislative enactment and repeal are to be understood. Such

rules of change may be very simple or very complex: the powers conferred may be unrestricted or limited in various ways: and the rules may, besides specifying the persons who are to legislate, define in more or less rigid terms the procedure to be followed in legislation. Plainly, there will be a very close connection between the rules of change and the rules of recognition: for where the former exists the latter will necessity incorpoa reference to legislation as an identifying feature of the rules, though it need not refer to all the details of procedure involved in legislation. Usually some official certificate or official copy will, under the rules of recognition, be taken as a sufficient proof of due enactment. Of course if there is a social structure so simple that the only ‘source of law’ is legislation, the rule of recognition will simply specify enactment as the unique identifying mark or criterion of validity of the rules. This will be the case for example in the imaginary kingdom of Rex 1 depicted in Chapter IV: there the rule of recognition would simply be that whatever Rex I enacts is law.

We have already described in some detail the rules which confer on individuals power to vary their initial positions under the primary rules. Without such private power-conferring rules society would lack some of the chief amenities which law confers upon it. For the operations which these rules make possible are the making of wills, contracts, transfers of property, and many other voluntarily created structures of rights and duties which typify life under law, though of course an elementary form of power-conferring rule also underlies the moral institution of a promise. The kinship of these rules with the rules of change involved in the notion of legislation is clear, and as recent theory such as Kelsen’s has shown, many of the features which puzzle us in the institutions of contract or property are clarified by thinking of the operations of making a contract or transferring property as the exercise of limited legislative powers by individuals.

The third supplement to the simple regime of primary rules, intended to remedy the inefficiency of its diffused social pressure, consists of secondary rules empowering individuals to make authoritative determinations of the question whether, on a particular occasion, a primary rule has been broken.

The minimal form of adjudication consists in such determinations, and we shall call the secondary rules which confer the power to make them ‘rules of adjudication’. Besides identifying the individuals who are to adjudicate, such rules will also define the procedure to be followed. Like the other secondary rules these are on a different level from the primary rules: though they may be reinforced by further rules imposing duties on judges to adjudicate, they do not impose duties but confer judicial powers and a special status on judicial declarations about the breach of obligations. Again these rules, like the other secondary rules, define a group of important legal concepts: in this case the concepts of judge or court, jurisdiction and judgement. Besides these resemblances to the other secondary rules, rules of adjudication have intimate connections with them. Indeed, a system which has rules of adjudication is necessarily also committed to a rule of recognition of an elementary and imperfect sort. This is so because, if courts are empowered to make authoritative determinations of the fact that a rule has been broken, these cannot avoid being taken as authoritative determinations of what the rules are. So the rule which confers jurisdiction will also be a rule of recognition, identifying the primary rules through the judgements of the courts and these judgements will become a ‘source’ of law. It is true that this form of rule of recognition, inseparable from the minimum form of jurisdiction, will be very imperfect. Unlike an authoritative text or a statute book, judgements may not be couched in general terms and their use as authoritative guides to the rules depends on a somewhat shaky inference from particular decisions, and the reliability of this must fluctuate both with the skill of the interpreter and the consistency of the judges.

It need hardly be said that in few legal systems are judicial powers confined to authoritative determinations of the fact of violation of the primary rules. Most systems have, after some delay, seen the advantages of further centralization of social pressure; and have partially prohibited the use of physical punishments or violent self help by private individuals. Instead they have supplemented the primary rules of obligation by further secondary rules, specifying or at least limiting the penalties for violation, and have conferred upon judges, where

they have ascertained the fact of violation, the exclusive power to direct the application of penalties by other officials. These secondary rules provide the centralized official ‘sanctions’ of the system.

If we stand back and consider the structure which has resulted from the combination of primary rules of obligation with the secondary rules of recognition, change and adjudication, it is plain that we have here not only the heart of a legal system, but a most powerful tool for the analysis of much that has puzzled both the jurist and the political theorist.

Not only are the specifically legal concepts with which the lawyer is professionally concerned, such as those of obligation and rights, validity and source of law, legislation and jurisdiction, and sanction, best elucidated in terms of this combination of elements. The concepts (which bestride both law and political theory) of the state, of authority, and of an official require a similar analysis if the obscurity which still lingers about them is to be dissipated. The reason why an analysis in these terms of primary and secondary rules has this explanatory power is not far to seek. Most of the obscurities and distortions surrounding legal and political concepts arise from the fact that these essentially involve reference to what we have called the internal point of view: the view of those who do not merely record and predict behaviour conforming to rules, but use the rules as standards for the appraisal of their own and others’ behaviour. This requires more detailed attention in the analysis of legal and political concepts than it has usually received. Under the simple regime of primary rules the internal point of view is manifested in its simplest form, in the use of those rules as the basis of criticism, and as the justification of demands for conformity, social pressure, and punishment.

Reference to this most elementary manifestation of the internal point of view is required for the analysis of the basic concepts of obligation and duty. With the addition to the system of secondary rules, the range of what is said and done from the internal point of view is much extended and diversified. With this extension comes a whole set of new concepts and they demand a reference to the internal point of view for their analysis. These include the notions of legislation, jurisdiction, validity, and, generally, of legal powers,

private and public. There is a constant pull towards an analysis of these in the terms of ordinary or ‘scientific’, fact-stating or predictive discourse. But this can only reproduce their external aspect: to do justice to their dis, internal aspect we need to see the different ways in which the law-making operations of the legislator, the adjudication of a court, the exercise of private or official powers, and other ‘acts-in-the-law’ are related to secondary rules.

In the next chapter we shall show how the ideas of the validity of law and sources of law, and the truths latent among the errors of the doctrines of sovereignty may be rephrased and clarified in terms of rules of recognition. But we shall conclude this chapter with a warning: though the combination of primary and secondary rules merits, because it explains many aspects of law, the central place assigned to it, this cannot by itself illuminate every problem. The union of primary and secondary rules is at the centre of a legal system; but it is not the whole, and as we move away from the centre we shall have to accommodate, in ways indicated in later chapters, elements of a different character.

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Andrei Marmor

Jacob Gould Schurman Professor of Philosophy and Law

Miscellaneous

Hart – Chapter 2: Laws, Commands, and Orders