Legal system in the eyes of modern analytical jurisprudence

According to the analytical jurists, a legal system consists of a combination of rules. These rules have important functions like laying down the obligations and creating rights. There are other set of rules which recognise these rules, authorise the required change and empower legal officials to adjudicate.
Rules, creating rights and obligations, are known as primary rules and the other set of rules authorising recognition, change and adjudication are known as secondary rules. Why these rules gain importance because state is an assemblage of different institutions and these institutions are bound through a cohesive legal system. The legal system gains its authority from authorised sources and it becomes operative by imposing itself on the citizens.1
The system rejects any tacit co-operation between law-giver and citizen and the same is seen as simply acting on the citizen, morally or immorally justly or unjustly, as the case may be. This character of system makes it a union of rules of obligation, change and adjudication. The union of primary and secondary rules may be regarded as the essence of law,2 for a modern municipal legal system will combine both kinds of rules, and the secondary rule of recognition will unite all the rules of the system in that all genuine laws will satisfy the criteria of validity specified by the rule of recognition.
The secondary rule of recognition, which provides the criteria of legal validity by which the (valid) primary rules may be identified, and the same is a complex practice constituted by the actual acceptance of the rule of recognition by the legal officials.3 Compare the idea of a group habit, such as watching television late at night, with that of a social rule, such as driving on the right side of the street. Although both involve behaviour that converges or occurs "as a rule," they differ in three respects. First, when there is a social rule, deviations generally are regarded as faults open to criticism, and threatened deviations are met with pressure for conformity. Secondly, for a social rule to exist; criticism is not only in fact made but deviation generally is accepted as a good reason for the criticism. Thirdly, a social rule exhibits an internal aspect.4
Those who adopt the "internal point of view" of social rules regard the rules as reasons or justifications for behaviour and for the criticism of behaviour; social rules are therefore normative, whereas group habits are not. To assert that a rule of recognition is the rule of recognition of a legal system is to say that it is accepted by the legal officials of that system. The question whether a legal system exists is a question of fact. Whether citizens generally obey the primary rules, and whether the legal officials effectively accept the secondary rules as critical common standards of official behaviour are also matters of fact.5
Characteristics that distinguish social rules that impose obligations from those that do not are as follows: (1) rules imposing obligations are those for which the demand for conformity is insistent and the pressure against those who deviate or threaten to deviate is great; (2) these rules are thought to be important because they are believed necessary to the maintenance of social life; (3) the obligations and duties required by these rules are thought of as involving sacrifice of renunciation.6
The union of primary and secondary rules is at the centre of a legal system; but it is not the whole, and as we move away from the centre we accommodate elements of a different character. These truths about important aspects of law can, however, only be clearly presented, and their importance rightly assessed, in terms of more complex social situation where a secondary rule of recognition is accepted and used for the identification of primary rules of obligation.7
The primary rules in a given legal system are 'duty imposing' and can be termed as basic rules. They state that what a citizen can and cannot do within the framework of law.8 For example, the traffic laws prescribing the speed limits, laws prohibiting trespassing or laws prohibiting corporations from requiring their employees to make contributions to political parties. The secondary rules are power conferring rules. They state the manner in which primary rules are recognised changed and adjudicated.
Rules of recognition provide a mechanism for discovering just what is or is not a legitimate primary rule.9 Rules of change are necessary to efficiently allow primary rules to be amended. They specify how primary rules may be changed. For example, a constitution may provide for the mechanism through which the rules of obligation are to be amended. Rules of adjudication are intended to remedy the inefficiency of a legal system of a complex society and are intended to remedy its inefficiency. These rules set criteria for determining when a primary rule has been broken and the same provided procedure to be followed where penalty is to be imposed for the violation of the rule. These situations deserve, if anything does, to be called the foundations of a legal system. In the words of John Austin, it is the key to the science of jurisprudence given the setting of natural facts and aims, which make sanctions both possible and necessary in a municipal system. That this is a natural necessity; and some such phrase is needed also to convey the status of the minimum forms of protection for persons, property and promises which are similarly indispensable features of municipal law. It is in this form that we should reply to the positivist thesis that 'law may have any content'. For it is a truth of some importance that for the adequate description not only of law but of many other social institutions, a place must be reserved, besides definitions and ordinary statements of fact, for a third category of statements: the truth of these statements is contingent on human beings and the world in which they live in order to retain the salient characteristics which can be distinguish between morality and law.10
Analytical jurisprudence elucidates a few cardinal features that collectively serve to distinguish morality from legal rules and from other forms of social rule.11 (1) A legal rule remains important until it is repealed whereas a moral rule is believed to be important throughout, (2) although a legal rule may be introduced or eliminated by deliberate concept of law, therefore, it includes on the one hand sets of primary rules alone, such as primitive law and international law, and on the other hand, systems of primary and secondary rules united by secondary rules of recognition.12 The rule of recognition is the ultimate rule of a legal system. The criterion of valid rules include the internal questions about the validity of the rule of recognition which otherwise cannot be raised since only external questions about the existence of the rule of recognition may be asked. The secondary rules thus seem to have two different characterisations, that is secondary rules as rules which confer powers, on public or private, authorities enabling citizens to create or vary their legal relations (private powers) and enabling legal officials to legislate and adjudicate (public powers). Thus the secondary rules may all be said to be on a different level from the primary rules, for they are all about such rules; in the sense that while primary rules are concerned with the actions that individuals must or must not do, these secondary rules are all concerned with the primary rules themselves. They specify the ways in which the primary rules may be conclusively ascertained, introduced, eliminated, varied, and the fact of their violation conclusively determined.13
The explication of the rationale for the two minimum conditions for the existence of a legal system may be divided into two parts: the first condition requires general obedience of the primary rules by private citizens and the second condition requires acceptance of the secondary rules by the legal officials. General obedience of the primary rules by private citizens is an important condition of a legal system.14 It all should begin by noting difficulties which the conditions specify for general obedience of the primary rules by citizens. The second minimum condition requires officials to accept the secondary rules generally. If they do, a particular rule will be valid; if the rule is valid, it imposes a legal obligation on those subject to it because they are committed to the acceptance of valid rules in advance.
A necessary condition of the legal system is the existence of coercive power in order to force citizens to voluntarily cooperate in the system and accept its rules. In this sense, it is true that the coercive power of law presupposes its accepted authority. Therefore, the primary rules are legally obligatory because of the voluntary acceptance of the authority of the legal system. Analytical jurists argue that those who do accept voluntarily the authority of the legal system need not think of themselves as morally bound to do so as not all social rules of obligation are moral rules. The acceptance of a legally obligatory rule does not imply a moral obligation; on the contrary, there may be moral reasons to disobey a valid legal rule. There can be no internal questions of validity concerning the rule of recognition, there can be no de jure questions about the authority of the legal system. A legal system or government has legitimate power if and only if those who exercise it have the de jure right or title to perform certain actions as well as the de facto authority to elicit a certain kind of obedience involving respect or trust. Authority of a legal system presupposes its voluntary acceptance by legal officials, and that their voluntary acceptance of, or allegiance to, the legal system which rests on prudential grounds. Any government or legal system, nevertheless, will attempt to justify the imposition of legal obligation on its subjects by appeal to authority. Whether any government or legal system possesses authority is, however, another controversial issue of jurisprudence.
1. See H.L.A. Hart, The Concept of Law, Oxford University Press, (1961).
2. 1d.
3. 1d.
4. What is necessary is that there should be a critical reflective attitude to certain patterns of behaviour as a common standard, and that this should display itself in criticism (including self criticism), demands for conformity, and in acknowledgements that such criticism and demands are justified, all of which find their characteristic expression in the normative terminology of 'ought', 'must', and 'should', 'right' and 'wrong.
5. 1d.
6. 1d.
7. 1d
8. Defenders of natural law such as Cicero, Aquinas, Groitus, Locke, Blackstone, Kant, and Fuller have major disagreements as to which version of natural law is preferable. Defenders of legal positivism such as Bentham, Austin, Mill, Gray, Kelsen, Hart, and Raz also have major differences with each other.
9. In a semi-developed legal system, the rules of recognition may be simply a reference to an authoritative text or standard for properly identifying the primary rules that have thus far been established.
10. John Austin, Providence of Jurisprudence revisited.
11. 1d.
12. 1d.
13. 1d.
14. 1d