Jurisprudence NZ

Herbert Lionel Adolphus Hart, a British philosopher, is the author of the book Concept of Law (1961). This book is well known for its analysis of the relation between coercion, morality, and law, and also its clarification of whether all types of law can be seen as coercive orders or as simply moral commands1. Hart goes into depth about all the laws and the relationships to coercion, morality and law, but this following essay will focus on Hart's statement regarding the uncertainty, rigidity, and inefficiency of the primary rules in “primitive” “pre legal” societies. Hart believes, in regards to positive law, that secondary rules are needed in order to maintain a legitimate legal system and also for rules to be legitimately seen as actual law. According to Hart, laws are divided up into two categories: primary rules, and secondary rules. Primary rules are more rules of conduct, for example, statutory and case-based laws, whereas secondary rules relate to the officials and authorities in which subsequently affect the way these rules are maintained. Thus, the combination of both primary and secondary rules are crucial in order for a legal system to be legitimate. In this particular case, the comparison and critical analysis will be directed towards tikanga Maori. Hart states that there are three weaknesses of primitive law, which is why secondary law is needed. These three weaknesses can be summarized as, the uncertainty of rules, the rigidity of laws, and finally the inefficienct enforcement of rules. Simply stating these weaknesses gives no validity or credit to Hart and his findings. An in-depth explanation of these is needed for further understanding, therefore an in-depth explanation of these weaknesses will follow. The first aspect is the uncertainty about what the rules or the law is. This, in turn, gives the need for the secondary counterpart which are the rules of recognition. Hart states that; 2
In the simpler form of