Critique of Hart’s Concept of Law in Samoa

Abstract

Hart’s “Concept of Law” has gained widespread recognition in legal philosophy by proposing that a legal system is best understood as a combination of primary rules that impose obligations and secondary rules that grant the authority to create, modify, and interpret those primary rules. One aspect in Hart’s concept concerns the prelegal or primitive system, consisting of a society governed solely by primary rules of conduct without secondary rules. Thus, it proceeds to assert that such a system exists in a small, stable community bound by shared beliefs and kinship. This article illustrates that upon closer scrutiny within legally intricate and bijural contexts – such as the case of Samoa, where both primary and secondary rules co-exist – the argument proves to be fundamentally flawed. 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. The article further argues that more critical and nuanced perspectives are needed to examine the legal reality of Hart’s theory in modern post- colonial contexts.