“Because I say so!” – the Logic and Theory of Rules

There is a fundamental difference between the kinds of legal rules that come up in torts & criminal law, on the one hand, and the sorts of legal rules that arise in contracts, on the other. Primary rules  are rules of conduct; they tell you what your are legally obligated to do (or refrain from) and what consequences attach to obedience or disobedience. Examples include the individual right to freedom of speech, or environmental laws that forbid discharge of toxic substances in rivers and streams. Technically, the class of secondary rules includes everything except primary rules. They are power-conferring  rules, including rules that allow testators to create a will, or constitutional rules that confer legislative powers to Congress (or Parliament).

What problems will there be in a society with only primary rules?

Primary rules in isolation grant rights or contain obligatory impositions that regulate members of a society. However, as simple axioms regarding individual and society modi operandi, primary rules alone do not create a proper legal system. In a “primitive” society devoid of a true legal system, there are no authoritative texts, courts or judges.

As Hart points out, there are three inherent problems found in a society with only primary rules. Uncertainty is the first of these deficiencies, as without a set of secondary rules it is difficult to point to a methodology to answer legal questions. Without a set procedure to settle legal claims, the scope of how to apply a legal rule is uncertain. Likewise, a society with only primary rules suffers from what Hart calls a “slow process of growth.” With no enforcement or means to alter rules as necessity arises, unalterable rules risk becoming inappropriate for society or situations over time.

Thirdly, with only primary rules, there will be a lack of legitimate bodies by which final and authoritative legal decisions are made. There would be neither enforcement nor proper channels to improve the legal system, which leads to a fundamental inefficiency. These three problems are solved by establishing a rule of recognition, realizing that rules must be changed or remade over time, and by forming a system of adjudication and punishment.

How do legal principles differ from legal rules, according to Dworkin?

Dworkin considers a legal principle a “standard that is to be observed, not because it will advance or secure an economic, political or social situation deemed desirable, but because it is a requirement of justice or fairness or some other dimension of morality” [source]. While legal principles are not the only means by which a decision is reached, they can certainly be a factor. They provide a cultural and societal context by which provides an appropriateness or dependability over time. Judges can look to legal principles and use them in their understanding of certain legal rules.

By contrast, a legal rule is one that when applied, no other rule can conflict with it, or apply in its place. These legal rules are either decisive or irrelevant: they are applied in a dichotomous fashion. They either “are,” or they “aren’t.” Rules are a standard of behavior derived from a legitimate authority, and within a legal hierarchy they tell you what to do. There is no balancing act. A rule is valid if it passes specific tests of the Rule of Recognition, whereas legal principles, which can provide particular reasons for decisions, are not in and of themselves conclusive.

Should principles be considered part of the law?

Yes, legal principles should be considered as something intrinsic to the legal system. Legal principles give a color – or as explained in lecture, a particular “weight” – to how individuals, each with idiosyncratic emotions and experiences, interpret the law. While some may argue that legal principles are not explicitly delineated in legal code and therefore not “part” of the law, our legal system undoubtedly extends beyond the black and white framework of constitutions and proceedings. Sentient humans created the collective institutions that define our legal system. Therefore, the context provided by incorporating legal principles into our understanding of the law ought to be considered a part of the legal system itself.

© NaturAdvocate, written December 2010

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