Law & Society Past Paper with Model Answers 2020/2021
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Course
Law & Society (LAW09106)
Institution
Edinburgh Napier University (ENU)
Book
Jurisprudence Essentials
This document provides model answers to 3 questions taken from the 2020/2021 past paper for the Law & Society module. Author achieved a first class grade for the module.
Law & Society - Lecture 6 - Weber and Sociology of Law
Law & Society - Lecture 4 - Scandinavian and American Realists
Law & Society - Lecture 3 - Hart - Kelson
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Model Answers
Law and Society
Past Paper for the year 2020/2021
ANSWER THREE OUT OF SIX QUESTIONS
Question 2
Explain and evaluate Hart’s definition of law as a union of primary and
secondary rules. How adequate is the definition?
[100 marks]
Model Answer
Hart proposes the definition of a legal system to be “the union of primary and secondary
rules”. Primary rules are the general rules which regulate the behaviour of the public. As Hart
states, the primary rules proscribe “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 co-exist in
close proximity to each other”. Primitive societies could survive alone on these primary rules
as a system of laws imposing obligations on citizens. However, as a society develops and
becomes increasingly complex, particularly one which is subject to changes in the political
and social environment, there is a need to alter the primary rules, to adjudicate on breaches
of them, and to identify which rules are specifically obligation rules. Hart explains the
problems faced by complex societies in terms of three “defects”: the defect of uncertainty,
defect of static rules, and defect of inefficiency of diffuse of social pressure. The three
defects are subsequently satisfied by the creation of three sorts of secondary rules: rules of
change, rules of adjudication, and rules of recognition. Each classification of secondary rule is
addressed to a particular official to remedy the defect. Unlike primary rules, the first two
secondary rules do not impose any duties, however, the rule of recognition does impose
duties, largely on judges.
The “defect of static rules” occurs where a set of rules are enacted and must thereafter be
followed indefinitely. There remains the question as to whether laws should continue
, indefinitely, particularly when rules may require to be amended or repealed and indeed new
rules will be required in order for the society’s legal system not to cease to develop.
Therefore, Hart proposes the secondary “rule of change” to accommodate legislative or
judicial changes to both primary and secondary rules. This is executed by conferring power to
officials, legislators, and those powers can be unrestricted or limited, or they may specify the
persons to legislate or the procedures to be followed. Since the authority and values of the
law come from the people who form the society, it could be said that legislators are merely
reactive rather than pro-active when it comes to making the law for the society.
There are those individuals who do not always follow the law in a society, to which Hart calls
the “defect of inefficiency of diffuse social pressure”. It is necessary for certain rules to confer
competence onto individuals to pass judgement mainly in cases of breaches of primary rules.
Therefore, Hart proposes “rules of adjudication” whereby judges will enforce the law. This
power permits the judges to state whether a rule has been broken and exercise further power
to punish the wrongdoer or compel the wrongdoer to pay damages. Further rules are
required, for example, someone will be under a duty to imprison such a wrongdoer prior to
any sanction being granted by a judicial official. In addition to adjudication, it is recognised
that judges will generally be required to perform a rule of recognition since, logically, the
obligation must be recognised and declared valid before it can be enforced.
The “defect of uncertainty” arises since there is a persistent question as to which laws to
recognise in a society. The question of when a law is valid in a society is answered by Hart
proposing a secondary “rule of recognition”. Such a rule determines where and how we are to
recognise the validity of the rules of a legal system as existing, and what is its proper scope.
This right appears to be duty-imposing: it requires those who exercise public power to follow
certain rules. However, as identified by MacCormick, this gives rise to an element of
‘circularity’. There must be recognition of the validity of an enactement of rules by the
legislature in exercising its power conferred by the rule of change, but the rule of recognition
presupposes the existence of judges whose duties are provided by the rule of recognition,
and these judges are empowered by the rule of adjudication. But this rule of adjudication is
only valid if it satisfies criteria of the rule of recognition, and the rule of recognition
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