Professor H.L.A. Hart has criticised the Austin and conception of law by linking it with his own original concept of law viewed from the positivist standpoint.
He has rejected any systems of law based simply on coercive orders on the ground that this view is patterned on criminal law when to a large extent the modern legal system confers both public and private legal powers, for instance, in the case of the law relating to wills, contracts, marriage, etc.
Hart instead pleads for a dual system consisting of two types of rules, VI.., primary and secondary rules. The primary rules lay down standards of behaviour and are rules of obligation, that is, rules that imposed duties.
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The secondary rules, on the other hand, are ancillary to and concern the primary rules in various ways; for instance, they specify the ways in which the primary rules may be ascertained, introduced eliminated or varied, and the mode in which their violation may be conclusively determined.
These secondary rules are, therefore, mainly procedural and remedial and include, but go far beyond, the rules governing sanctions. For instance they extend to the rules of judicial procedure and evidence, as well as the rules governing the procedure by which new legislation may be introduced.
Hart takes the view that a society which is so legally undeveloped as to have no secondary rules but only primary rules of obligation, would not really possess a legal system at all but a mere ‘set’ of rules. For Hart, therefore, it is the union of primary and secondary rules which constitute the core of a legal system.” (Dennis loci: Introduction to Jurisprudence).
Hart then adverts lo the ‘internal aspect’ or ‘inner point of that human beings take towards the rules of a legal system. Law, according to him, depends not only on the external social pressures which are brought to bear on human beings to prevent them deviating from the rules, but also on the inner point of view that human beings take towards a rule conceived as imposing an obligation.
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For a legal system ‘lo exist’, there must be general obedience by the citizens to the primary rules of obligation but it would not be necessary for the citizens to possess ‘an internal point of view’.
In such a case, according to Hart, the importance of the internal point of view relates not to a body of citizens but lo the officials of the system. These officials must not merely ‘obey’ the secondary rules but must take an ‘inner view’ of these rules, and this is a necessary condition for the existence of a legal system.
Official compliance with the secondary rules must, there- lore, involve both a conscious acceptance of these rules as standards of official behaviour, and a conscious desire to comply with these standards.”