More on H.L.A. Hart. Different kinds of legal rules. Secondary rules, including the “rule of of recognition”

1.

PLAN FOR TODAY’S LESSON
• More on H.L.A. Hart
• Different kinds of legal rules
• Secondary rules, including the “rule of of recognition”
• Short writing

2.

More on Hart
Hart is hard to read and understand.
Why, then, did we read a part of his book?
Why are we talking about him?
In part, because he helps us to understand
our ”Definition of Law,”
and the text in the exercise, “Lawyers and the Rule of Law.”

3.

“Definition of law”
“…the system
of rules
which a particular country or community recognizes
as regulating the actions of its members and
which it may enforce
by the imposition of penalties.”

4.

“Lawyers and the Rule of Law”
“…a lawyer should further
…legal institutions
the public’s understanding of
in a constitutional democracy
and confidence in
depend on
the rule of law and the justice
popular participation and
support
system because…
to maintain their authority.”

5.

Legal rules and the different kinds of legal rules
We talked about social rules.
Now we’ll turn to the different kinds of legal rules.
What Hart said about social rules
helps us understand legal rules.

6.

Legal rules and the different kinds of legal rules
A legal rule is a kind of social rule.
How is a legal rule different from other social rules?

7.

Legal rules and the different kinds of legal rules
If you break a legal rule
you may be punished by the state,
by “fines”(= money penalties)
or jail).

8.

Legal rules and the different kinds of legal rules
What else is important about legal rules?
There are different kinds of legal rules:

9.

Primary and secondary rules
As we started to discuss:
“primary” rules and “secondary” rules.
What’s the difference between them?...

10.

Primary and secondary rules
Primary rules take the form of commands,
and impose legal duties:
“Do…”
“Don’t…”

11.

Primary and secondary rules
Examples of primary rules:
“Do…pay your taxes”
“Don’t murder”

12.

Secondary rules
Secondary rules do not impose legal duties.

13.

Secondary rules
Examples of secondary rules include, rules for-Making a legal will
Making a legal contract
Making a legal marriage

14.

Secondary rules
These rules
give you the legal power
to do certain things if you want to,
AND
tell you how to do those things
if you want the legal system to becognize them
and enforce them if necessary.

15.

Secondary rules
You don’t have to make a will or a contract,
or get married.
But if you want to, secondary legal rules tell you
how to do these things
in a way
that the law will protect
(=that a court will enforce).

16.

Secondary rules
The secondary legal rules
for making wills or, contracts,
or forming corporations—
give private powers
(powers to individuals)

17.

Secondary rules
Other secondary legal rules
give public powers
(to the government).
Examples?...

18.

Example of a secondary rule granting power to the government:
Constitution of the Republic of Uzbekistan, Article 84
“The law shall come into effect
when it is adopted by the Legislative Chamber,
approved by the Senate,
signed by the President of the Republic of Uzbekistan
and issued in the official publications specified by law…

19.

Статья 84
Закон приобретает юридическую силу, когда он
принимается Законодательной палатой, одобряется
Сенатом, подписывается Президентом Республики
Узбекистан и публикуется в официальных изданиях в
установленном законом порядке.

20.

Secondary rules
This article gives the legal power to the Oliy Majlis to
make laws for the President’s signature,
and
tells them how (=what they have to do) to make laws.
(I assume the details are written elsewhere.)

21.

Secondary rules
Another example of secondary legal rules
granting public powers?...

22.

Example of a secondary rule granting power to the government:
Constitution of the Republic of Uzbekistan, Article 107
“The judicial system in the Republic of Uzbekistan shall consist of the
Constitutional Court of the Republic of Uzbekistan, the Supreme Court
of the Republic of Uzbekistan [and other courts]…”
Tells us who has—what institutions have—
the power to resolve disputes

23.

Example of a secondary rule granting power to the government:
Constitution of the Republic of Uzbekistan, Article 107
Статья 107.
• Судебная система в Республике Узбекистан состоит из
Конституционного суда Республики Узбекистан, Верховного
суда Республики Узбекистан…

24.

Example of a secondary rule granting power to the government:
Constitution of the Republic of Uzbekistan, Article 107
“The organization and procedure for the operation of courts shall be
specified by law…”
“Организация и порядок деятельности судов определяются
законом.”
Tells us that the details of how courts resolve disputes
are stated elsewhere in the law.

25.

Primary and secondary rules
Test your understanding:
“Defense of the Republic of Uzbekistan is the duty of every citizen of the Republic
of Uzbekistan. Citizens shall be obliged to perform military or alternative service in
the procedure prescribed by law.”
--Constitution of the Republic of Uzbekistan, Article 52.
Is this a primary or a secondary rule? Why?

26.

Primary and secondary rules
Test your understanding:
Статья 52.
• Защита Республики Узбекистан — долг каждого гражданина
Республики Узбекистан. Граждане обязаны нести военную или
альтернативную службу в порядке, установленном законом.
Is this a primary or a secondary rule? Why?

27.

Primary and secondary rules
Test your understanding:
• "Everyone shall be guaranteed
freedom of thought, speech and convictions…”
--Constitution of the Republic of Uzbekistan, Article 29.
Статья 29.
“Каждый имеет право на свободу мысли, слова и убеждений…”
Is this a primary or a secondary rule? Why?

28.

Primary and secondary rules
Test your understanding:
• "Everyone shall be guaranteed
freedom of thought, speech and convictions…”
--Constitution of the Republic of Uzbekistan, Article 29.
• Статья 29.
“Каждый имеет право на свободу мысли, слова и убеждений…”
Is this a primary or a secondary rule? Why?
(Is there also an implied duty included here?)

29.

Primary and secondary rules
“A child whose both parents, at its birth,
are in citizenship of the Republic of Uzbekistan,
shall be a citizen of the Republic of Uzbekistan…”
--Law of the Republic of Uzbekistan
on Citizenship of the Republic of Uzbekistan, Article 12
(unofficial translation, https://www.refworld.org/pdfid/597f0bff4.pdf)
• Primary or secondary rule? Why?

30.

Primary and secondary rules
“A child whose both parents, at its birth,
are in citizenship of the Republic of Uzbekistan,
shall be a citizen of the Republic of Uzbekistan…”
--Law of the Republic of Uzbekistan
on Citizenship of the Republic of Uzbekistan, Article 12
(unofficial translation, https://www.refworld.org/pdfid/597f0bff4.pdf)
• Primary or secondary rule? Why?
• (Is there also an implied duty—or something related to a duty--included here?)

31.

Primary and secondary rules
Test your understanding:
“Defense of the Republic of Uzbekistan is the duty of every citizen of the Republic
of Uzbekistan. Citizens shall be obliged to perform military or alternative service in
the procedure prescribed by law.”
--Constitution of the Republic of Uzbekistan, Article 52.
Is this a primary or a secondary rule? Why?

32.

Primary and secondary rules
“A child whose both parents, at its birth,
are in citizenship of the Republic of Uzbekistan,
shall be a citizen of the Republic of Uzbekistan…”
--Law of the Republic of Uzbekistan
on Citizenship of the Republic of Uzbekistan, Article 12
(unofficial translation, https://www.refworld.org/pdfid/597f0bff4.pdf)
• Primary or secondary rule? Why?

33.

Primary and secondary rules
“A child whose both parents, at its birth,
are in citizenship of the Republic of Uzbekistan,
shall be a citizen of the Republic of Uzbekistan…”
--Law of the Republic of Uzbekistan
on Citizenship of the Republic of Uzbekistan, Article 13
(unofficial translation, https://www.refworld.org/pdfid/597f0bff4.pdf)
• Primary or secondary rule? Why?
• (Is there also an implied duty—or something related to a duty--included here?)

34.

Primary and secondary rules
Why did I show you
these articles of the Constitution
and other laws?

35.

Primary and secondary rules
To show you
that a developed legal system
has different kinds of laws,
which have different functions
(some impose duties, some give powers, some do other things).

36.

Primary and secondary rules
Hart’s distinction between primary and secondary rules
give us a vocabulary for talking about
these different kinds of laws and functions.

37.

Primary and secondary rules
The distinction between primary and secondary rules
helps us understand
an important word in our “Definition of Law.”

38.

“…the system of rules…”
“…the system
of rules
which a particular country or community recognizes
as regulating the actions of its members and
which it may enforce
by the imposition of penalties.”

39.

Primary and secondary rules
To sum up primary and secondary rules:
Not all legal rules are primary rules (requiring or prohibiting action).
Some legal rules are secondary rules,
whose function is different from that of primary rules.
There are different kinds of secondary rules.

40.

Primary and secondary rules
Now we come to an important secondary rule.
Hart calls it, “the rule of recognition.”
It tells you what the laws are, in a legal system—
which rules are (recognized as) laws.
Here’s an example of something like a rule of recognition…

41.

Статья 5. Виды нормативно-правовых актов
Видами нормативно-правовых актов являются:
• Конституция Республики Узбекистан;
• законы Республики Узбекистан;
• постановления палат Олий Мажлиса Республики Узбекистан;
• указы и постановления Президента Республики Узбекистан;
• постановления Кабинета Министров Республики Узбекистан;
• приказы и постановления министерств, государственных
комитетов и ведомств;
• решения органов государственной власти на местах.

42.

Example of a “rule of recognition”:
“The Law of the Republic of Uzbekistan
“On Normative Legal Acts” (24 December 2012)
Article 5. Types of legal normative acts
The types of legal normative acts are:
• Constitution of the Republic of Uzbekistan;
• Laws of the Republic of Uzbekistan;
• Resolutions of the Chambers of Oliy Majlis of the Republic of Uzbekistan;
• Decrees and resolutions of the President of the Republic of Uzbekistan;
• Resolutions of the Cabinet of Ministers of the Republic of Uzbekistan;
• Orders and resolutions of ministries, state committees and departments;
• Resolutions of the authorities of local bodies.
(Thanks to Mr. Bakhodir Mirzaraimov for research and translation.)

43.

The “rule of recognition”
For a simpler form of organization than a state,
the “rule of recognition” might be just a list of rules.

44.

The “rule of recognition”
• To imagine this, think of a list of rules for–
• A club—the rules for the members of the club;
• Or, maybe, an organization of people who live in a particular
apartment building;
• Or, maybe, a mahallah.

45.

The “rule of recognition”
For a modern state,
instead of listing all the laws,
the list might name the institutions
with the authority to make law.
(As we just saw in Article 5:
the rules made by the listed institutions are laws.)

46.

Short writing
• Choose something that interested you in today’s lesson.
• What interested you about it?

47.

From John Stuart Mill, On Liberty (1859)
[H]uman beings should be free to form opinions, and to express their opinions without
reserve…[But] even opinions lose their immunity [=their protection from prosecution],
when the circumstances in which they are expressed are such as to constitute their
expression a positive instigation [=cause, provocation, incitement] to some mischievous
[here, = harmful] act. An opinion that corn-dealers [=merchants, sellers] are starvers of the
poor, or that private property is robbery, ought to be unmolested [=not bothered; left
alone] when simply circulated through [=published in] the press, but may justly incur
[=subject a person to] punishment when delivered orally to an excited mob assembled
before the house of a corn-dealer, or when handed about among the same mob in the
form of a placard [= a written sign stating a message, that people carry around]. Acts of
whatever kind, which, without justifiable cause, do harm to others, may be, and in the
more important cases absolutely require to be, controlled…when needful, by the active
interference of mankind. The liberty of the individual must be thus far limited; he must not
make himself a nuisance to other people.

48.

END OF LESSON