LEGAL POSITIVISM-H.L.A HART Hart's concept of law is based on general social acceptance of law or legal system. , ...

to say that a given rule is valid is to recognize it as passing all the tests provided by the rule of recognition and so as a rule of the system. We can indeed simply say that the statement that a particular rule is valid means that it satisfies all the criteria provided by the rule of recognition. 1)Primary rules; duty imposing rules, binding because of popular acceptance e.g., rules of kinship, law of torts, family sentiments etc., there is no agency for deciding these rules, they are un-official rules suffer from three defects; Uncertainty, Static character, and Inefficiency Indian status Primary rules of obligation in the Indian legal system include customs which are recognised by courts and various statutes. This is evident from the changing status of customs. Pre-constitutional laws are given recognition by Article 372 of the Indian Constitution "but subject to the provisions of ... Constitution". 2)Secondary rules; power conferring rules, enable the legislators to modify their policies and law thereupon to accord with social needs, in fact seek to complement or remedy the defects of primary rules; Rule of Recognition according to Hart forms the foundation of the legal system. Rule has three functions: To establish a test for valid law in the applicable legal system, To confer validity to everything else in the applicable legal system, and To unify the laws in the applicable legal system. India-The Indian legal system is a fairly developed system and consists of both primary and secondary rules. The Constitution of India is the ultimate rule of recognition. Although under Article 51 of the Indian Constitution, Promotion of international peace and security, yet no rule of international law which is in conflict with the Indian Constitution can be binding on the Indian people and courts.

Rule of Change No generation has monopoly of wisdom nor has it a right to place fetters on future generations to mould the machinery of government according to their requirement. In Kesavananda Bharati v State of Kerala, the Supreme Court observed that if no provisions were made for the amendment of the Constitution, the people would have recourse to extra constitutional method like revolution to change the Constitution. Thus Laws, byelaws, rules, regulations are subject to deletion, addition. Applicability: Article 31, Right to Property and the 44th Amendment Act, 1978, Prior to the 44th Amendment Act, 1978, right to property was a fundamental right. The amendment has abolished the right to property as a fundamental right and has incorporated it merely as constitutional / legal right which will be regulated by ordinary law. Article 300-A provides that no person shall be deprived of his property save by authority of law, Rule of Adjudication Powers are conferred on judiciary to adjudicate and resolve a problem which is prevailing in society. This power is conferred either on an officer or court by rule of law, to resolve problem surfaced in the legal system. e.g. Article 13 (1) declares that all laws in force in the territory of India immediately before the commencement of this Constitution shall be void to the extend to which they are inconsistent with the provisions of Part III of the Constitution. Article 13 (2) of this article provides that the State shall not make any law which takes away or abridges the fundamental rights conferred by Part III of the Constitution; and any law made in contravention of fundamental rights shall, to the extent of contravention, be void In Kesavananda Bharati v. State of Kerala, AIR 1973 SC 1461, the Supreme Court of India held that Judicial Review is the basic feature of the Indian Constitution and therefore it cannot be damaged or destroyed by amending the Constitution under Article 368 of the Constitution. What is required for such effectiveness of legal system? Two conditions are required for the effectiveness of the legal system; There are certain norms, standards which are to be followed by private individuals or by public at large.

Public officers should behave in a prescribed manner. Indian Status Indian legal system seems to clearly disagree with Hart's thinking. Thus, not only morality is explicitly used in; Articles 25, Freedom of conscience and free profession, practice and propagation of religion ,Article 19(1)(g), to practise any profession, or to carry on any occupation, trade or business, even while judging the validity of particular laws against the Constitution of India the Court takes into account moral principles. Grounds of morality Hart contends that while public morality should be enforced because its absence amounts to nuisance to another person, care should be taken while enforcing private morality and a balance has to be maintained between individual liberty and morality. According to Hart, the private morality should be made effective by means of persuasion, dialogue and debate rather than coercion. But The Indian legal system does not totally approve of Hart's theory in this regard. Article 17 penetrates into private lives of citizens by abolishing "untouchability" in any form.