In this chapter, Hart presents the core of his own account of law. He will develop it somewhat further in later chapters, especially ch. 6, but his focus later in the book will often again be the criticism of other views. The last of these three sections of ch. 5 is the most important and it will be our focus in class; but the first lays the groundwork for it, and we will also pay some attention to the second, which can help in understanding the discussion in ch. 6.
• As the chapter title suggests, the distinction between primary and secondary rules made in §1 is central to Hart’s view of the law. Notice that he regards it as a further development of the distinction between duty-imposing and power-conferring rules he made in ch. 3.
• At the beginning of §2, Hart makes a distinction between “was obliged” and “had an obligation”; let me note (in case his use of the terms seems unnatural) that it doesn’t really matter whether Hart is right about English usage since it is the distinction he takes the terms to mark (not the language used to mark it) that is important. Beyond this distinction, Hart discusses two ideas that will be important also in later parts of the book: (i) the “predictive theory” of obligation and the problems he sees with it (pp. 83ff—note that this discussion applies to both Austin and Holmes) and (ii) the distinction between “internal” and “external” aspects of rules (pp. 88-91). (The target of Hart’s reference to ch. 3 is not obvious but it may be pp. 40ff; in any case, his chief previous discussion of the idea was in ch. 4, pp. 56f.)
• Formulate for yourself each of the three problems (described in §3) that could arise with a legal system that employed only primary rules and be able to say how each is solved by one of the three sorts of secondary rule Hart distinguishes. Much of the class will be devoted to working through these ideas.