Critique of Hart's Concept of Law in Samoa

• Author: Bridget Fa'amatuainu
• Position: Law Lecturer, School of Law, Auckland University of Technology
• Pages: 67-96

67

CRITIQUE OF HART’S CONCEPT OF

LAW IN SAMOA

BridgetFa’amatuainu*

Abstract

Hart’s “Concept of Law” has gaine d widespread recognitio n in legal philosophy

by pro posing that a legal system is best understood as a com bination of primary rules

that imp ose obligations and second ary rules that grant the authority to create, modify,

and interpret those primary rules. One aspect in Hart’s concept concerns the prelegal

or prim itive system, consisting of a society g overned solely by primary rules of con duct

without seco ndary rules. us, it proceeds to assert that such a system exists in a sma ll,

stable communi ty bound by shared beliefs an d kinship. is article illustrates tha t

upon c loser scrutiny within l egally intricat e and bi jural contexts – such as the case of

Samoa, where both primary and secondary rules co-exi st – the argument p roves to be

fundamentally awed. Moreover, this critique highlights the limitations in the standard

application of Hart’s Concept of Law in other post-colonial contexts, including Aotearoa

New Zealand and South Africa. e article fur ther argues that more critical and nuanced

perspectives are needed to examine the l egal reality of Hart’s theo ry in modern post-

colonial contexts.

I. Introduction

HLA Hart’s contributions to jurisprudence are foundational, particularly in

distinguishing law from morality and providing a framework for understanding

legal systems.1 Hart critiqued earlier positivist theories, notably John Austin’s

“command theory of law”, which red uced law to commands issued by a sovereign,

enforced by sanctions.2 While inuentia l, Au stin’s t heory over simplified law and

failed to address the complexities of modern governance. Hart responded by

introduci ng a mor e so phisticated model, di erentiating bet ween primary ru les

(governing conduct) and secondary rules (regulating how primary rules are

recognised, amended and adjudicated).

1 Herbert L A Hart, e Co ncept of Law (2nd ed, Ox ford Universit y Press, Oxfor d, 1994) at 92.

2 Collin Tapper “Austin on Sanc tions” (1965) 23(2) Cambr idge Law Journa l 271–287; and Hart , above

n 1, at 116.

* Law Lecturer, Scho ol of Law, Auckland Un iversity of Tech nology.

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Arguably, Hart’s concept of secondary rules marked a pivotal advancement in

legal ph ilosophy. Hart ident ied three key secondary rules: the r ule of recogn ition

(determin ing the validi ty of legal rules), the r ule of change (outli ning how laws are

amended or introduced), and the rule of adjudication (providing mechanisms for

resolving disputes). These secondary rules are essential for understanding legal

systems a s exible and inst itutional fr ameworks, not just coerci ve structure s.

Note that Hart’s model in non-Western legal systems presents challenges.

Samoa’s legal s ystem, for ex ample, int egrates fa’asamoa (customa ry law) wi th a forma l

system based on British common law, creating a pluralistic legal environment.3

While pri mary and se condary ru les exist, they do not a lign neat ly with Har t’s model

when exami ned in legally plu ralistic cu stomary conte xts.

This article examines Hart’s theory in the context of Samoa’s legal system,

focusing on the three secondary rules and their operation in a legally pluralistic

environment. It will highlight the limitations of Hart’s model when applied to

non-Western contexts. Comparisons with post-colonial societies of Aotearoa New

Zeala nd and South A frica oers a broade r socio-legal per spective on th e challenges

of applying West ern legal theor ies to diverse cult ural setti ngs.

II. Samoan Legal System

Before I expand on the “standa rd” theoretical approach in which Ha rt’s concepts

operate, it is ne cessary to be gin each section of t his art icle with a brief dis cussion of

Samoa’s position , at customary a nd state level.

A. Fa’asamoa in Pre-Colonial Samoa

Prior to colonisation in the lat e 19th century, Samoa was governed by fa’asamoa

(the Samoan way of life), a customary legal system that structured all aspects of

3 Interview wit h Nanai Agaia va (6 May 2009) in Marga ret Smith “Samoa nizing” Hum an Rights: A

Gener ational Comparat ive of Vie ws on Human Rights in C ontempo rary Sam oa” (Independent Study

Project (I SP) Collection 635, 200 9); Interview wit h Asofou So’o (27 May 2009) in Smit h, above;

and Un asa Va’a “ Samoan Custom and Huma n Rig hts: An Indigen ous View” (2009) 40 Victo ria

Universit y of Wellington Law Review 237, at 237–250 for a more comprehensive discussion of

fa’asamoa values in the conte xt of custom a nd human rig hts.