5.2.3  Constitutions and Secondary Rules

(This is an archived extract from the book Patterns of Power: Edition 2)

Who is in charge of society, who or what is sovereign?  The answer to this question forms the foundation for both the Legal and Political Dimensions of power; it defines their relationship with each other and with society.

In many societies the electorate is the ultimate source of authority, so the concept of obedience to the sovereign, or to the sovereign’s laws, could be regarded as equivalent to people being asked to obey themselves – but no one can be bound by such undertakings.  Rousseau, in describing his vision of a social contract, attempted to resolve this conundrum by pointing out that "there is a great difference between incurring an obligation to yourself and incurring one to a whole of which you form a part”,[1] but Hart provided a more concrete answer by invoking the supremacy of the law:

"The rules are constitutive of the sovereign, not merely things which we should have to mention in a description of the habits of obedience to the sovereign.” [2] 

This amounts to saying that a society defines itself by its laws; all the members of that society, including the government and the members of the judiciary, are governed by those laws – which include what Hart referred to as the “secondary rules” that "specify the ways in which the primary rules may be conclusively ascertained, introduced, eliminated, varied, and the fact of their violation conclusively determined”.[3]  They are the basis for the authority and the legitimacy of legal power.  In Hart's definition, which is also the usage in this book, the secondary rules provide a mechanism for the maintenance of the governance structure – including economic regulations and the Constitution.

The secondary rules for the maintenance of national laws are mainly a constitutional matter for the country concerned, but they are constrained by agreements that the country has entered into with other countries so globalisation is creating pressures for change.

Countries can also delegate powers downwards, allowing regional and local legislation.  The secondary rules can provide for legislation to be carried out at the appropriate level whilst allowing some difficult cases to be referred upwards for resolution.  Such a hierarchy can help to cater for the challenges of pluralism.

© PatternsofPower.org, 2014                                                 

[1] Rousseau, The Social Contract, Chapter 7, Paragraph 1.  This was available in May 2014 at http://etext.lib.virginia.edu/toc/modeng/public/RouSoci.html.

[2] H.L.A. Hart, The Concept of Law, p. 76.

[3] Ibid., p. 94.