Legal Systems Structure: Hart's Primary and Secondary Rules

Legal Norms: Conduct, Organization, and System Structure

Within legal norms, a fundamental distinction must be made between standards of conduct and rules of organization.

The former prescribe what should be done, attributing specific practices the deontic modalities of "compulsory," "forbidden," or "permitted." Organizational norms, conversely, establish the bodies responsible for the production and application of standards.

Hart's Conception: Primary and Secondary Rules

H.L.A. Hart proposed that in a developed legal system, there are two basic types of rules, distinct but related: primary rules and secondary rules (a classification very different from Kelsen's).

• Primary rules prescribe that human beings do or omit certain actions, regardless of their personal will.

Secondary norms are second grade; they are rules which relate to the primary rules or are secondary to them. While primary rules concern what individuals should or should not do, secondary rules deal with the primary rules themselves. Hart states that secondary rules "specify the manner in which the primary rules may be conclusively verifiable, inserted, deleted, modified..."

According to Hart, secondary rules confer powers, whether public or private, and impose duties.

The Three Classes of Hart's Secondary Rules

Hart distinguishes three essential types of secondary rules:

1. The Rule of Recognition: Its function is to establish what legal standards belong to the system—i.e., which rules are part of the law of a particular social group.
2. Rules of Change (Exchange Rules): These empower individuals to create new primary rules and to amend or repeal existing ones. Rules of change are necessary to avoid the static nature of the rules, allowing for the elimination of old norms and the introduction of new ones.
3. Rules of Adjudication (Application Rules): These empower certain organs to determine with authority whether a primary rule has been violated on a particular occasion. They confer jurisdictional powers.

A very close connection exists between the Rule of Recognition and the Rules of Change.

Bobbio's Characterization of Secondary Rules

Norberto Bobbio characterized secondary rules as rules "relating to standards." He identified three main classes:

1. Norms for the Identification of the System

   These establish the criteria by which one can determine which rules belong to the system. These cover three distinct types of norms:

   • Rules on Sources: Indicate the facts or acts attributed the power to produce rules outside the system.
   • Rules on Validity: Govern the validity of laws in time and space.
   • Rules on Interpretation and Application: Help clarify the different possible meanings of standards.

2. Rules on Sanctions (Penalty)

   These correspond to Hart's rules of adjudication, carried out through the institutionalization of the penalty.

3. Rules on Legal Production

   These correspond to Hart's rules of change. They tend to impede the rigidity of the rules and concern the transformation of the legal system.