WHY SECONDARY RULES MIGHT EMERGE? A Reinterpretation of Hart’s Fable

Abstract

In Ch. V of “The Concept of Law” Hart speaks of secondary rules as remedies for defects of a socialorder based solely on primary rules. The report setting up the scenario, describing the problems and indicatingthe solutions is here called, following Gardner, “Hart’s fable”. As to the nature of the fable, MacCormick andGardner agree that it is far from a historical report. MacCormick conceives of it as an ex post facto argumentabout the crucial role that a rule of recognition, rules of change and rules of adjudication play in our legalsystems and Gardner, agreeing with Hacker, conceives of it as the use of a genetic-analytic method that analyzethe nature of secondary rules by means of their genesis in a hypothetical scenario. My paper combines theinsights of both MacCormick and Gardner-Hacker with the idea of protection of legal positivism as a key to thereading of “The Concept of Law”. My thesis is that Hart’s fable is a thought experiment intended to show notonly the nature of secondary rules, but also the risks of compromising the functioning of secondary rules byembracing either imperativist or anti-positivist conceptions of law.