B.A. LL.B. (Five Years) Sem 5 Jurisprudence 2012 Jun Question Paper with Solutions

For full marks, cover: Hart's account of law as a system of rules (The Concept of Law, 1961) and why he set aside Austin's command theory (the gunman, power-conferring rules, continuity, self-binding laws, custom); rules distinguished from habits (the internal point of view; being obliged and having an obligation); primary rules and the three defects of a regime of primary rules only; the three secondary rules (recognition, change, adjudication), each as a remedy; the union of primary and secondary rules; the two minimum conditions for a legal system to exist; open texture and judicial discretion; the minimum content of natural law; the Indian Constitution read as a system of rules (articles 13, 141, 245 and 368; Kesavananda Bharati v. State of Kerala, 1973; Harla v. State of Rajasthan, 1951; Union of India v. Raghubir Singh, 1989); the criticisms (Dworkin, Fuller, the realists); a table; a conclusion.

4. Self-binding laws. Legislators are bound by the laws they make. A command is addressed to others.
5. Custom. Customary law is not commanded by anyone, yet it is law.

Rules and habits

A habit is mere regular behaviour, such as going to the cinema on Saturdays. A rule has an internal aspect. People who accept a rule treat it as a standard that they ought to follow. They criticise departures from it, and regard that criticism as justified. Hart called this the internal point of view. Law consists of rules in this sense, not just habits of obedience.

Primary rules and their defects

Primary rules impose duties: do not kill, do not steal, keep promises. Hart imagined a simple society governed by primary rules alone. It would suffer from three defects.

1. Uncertainty. There would be no agreed way to settle doubts about what the rules are.
2. Static character. There would be no deliberate way to make new rules or abolish old ones.
3. Inefficiency. There would be no official body to decide authoritatively whether a rule had been broken.

2. The officials accept the secondary rules, especially the rule of recognition, as common public standards, from the internal point of view.

Open texture and discretion

Rules are framed in general words, and every general word has a core of settled meaning and a fringe of doubt. Hart's example was a rule forbidding vehicles in a park: does it cover a bicycle or a toy car? In the fringe cases, judges must exercise discretion. So, Hart accepted, judges sometimes make law in hard cases.

The minimum content of natural law

Though a positivist, Hart accepted that any workable legal system must contain certain rules. Human beings are vulnerable and approximately equal. They have limited altruism, limited resources, and limited understanding and strength of will. So every legal system must protect persons and property and require promises to be kept.

Rules of adjudication. Articles 32 and 226 give the Supreme Court and the High Courts power to decide whether rights have been violated. The rules of precedent tell courts how their decisions bind. In Union of India v. Raghubir Singh, 1989 AIR 1933, a Constitution Bench held that a ruling of a Bench binds later Benches of equal or smaller strength. That is a secondary rule about how adjudication works.

Criticisms

1. Dworkin argued that law contains not only rules but principles, such as "no one may profit from his own wrong". Principles cannot be identified by a pedigree test like the rule of recognition.
2. Fuller argued that law has an inner morality of procedural requirements, which Hart's model leaves out.
3. The realists argued that rules often do not decide cases, and that law is better understood through what courts do.
4. Some critics say Hart described a legal system rather than defining law itself.

Conclusion. Hart described law as a system of rules: the union of primary rules imposing duties and secondary rules of recognition, change and adjudication. He set aside Austin's command theory using the gunman, power-conferring rules, continuity and custom. He also distinguished rules from habits by their internal aspect. A legal system exists when its rules are generally obeyed and officials accept its secondary rules. The Indian Constitution fits the model. Kesavananda refines the rule of recognition, Harla shows the conditions of valid change, and Raghubir Singh shows a rule of adjudication. Dworkin, Fuller and the realists qualify the theory, but it remains the leading account of what makes law a system.