Dummies’ Guide to Hart – The Foundations of a Legal System Chapter 6

Preamble/Some points to consider before launching into Chapter 6:Hart’s analysis in Chapter 6 builds upon the social rules Hart discussed in Chapter 4 and also the preliminary account of a legal system in Chapter 5. Also, the Rule of Recognition is discussed in Chapter 7, and applied in the international law in Chapter 10.

I. Rule of Recognition & Legal Validity (Pearlynn)

Rules of Recognition (ROR)

- The foundation of a legal system consists of the situation in which the majority of a social group habitually obey the orders backed by threats of the sovereign person or persons, who themselves blatantly obey no one (Hart Chapter 2). Hart feels that this theory is incapable of accounting for some of the salient features of a modern municipal legal system.

- However, he recognises that these truths can only be clearly presented, and their importance rightly assessed, in terms of the more complex social situation where a secondary rule of recognition is accepted and used for the identification of primary rules of obligation.

o This points to 3 important aspects of the ROR:1. That it identifies primary rules of obligation

a. Recall Chapter 5, where Hart discusses a simplistic kind of society where the only means of social control is by way of social custom, which in Hart’s words are primary rules of obligation. Hart notes that a disadvantage of such a system is that there is uncertainty surrounding the precise scope of such rules. Hence, Hart states that the Rule of Recognition can help to identify such primary rules of obligation.

2. That it is a secondary rulea. Hart argues that while primary rules are concerned with

the actions that individuals must or must not do, these secondary rules are all concerned with the primary rules themselves.

3. That is it accepted and used.a. Here, Hart is referring to his discussion of ‘social rules’ in

Chapter 4.b. Austinian model of sovereignty – that people have a ‘habit

of obedience’ to a sovereign person. Hart feels that this fails to explain the continuity of legislative authority, i.e. the transition from one sovereign to another.

- How does this play out in real life? We are given authoritative criteria for identifying primary rules of obligation. E.g.

o Reference to an authoritative texto Legislative enactmento Customary practiceo General declaration of specified personso Past judicial decisions in particular cases

- Modern legal systems in identifying law:o Variety of ‘sources’ of lawo Rule of recognition is thus more complexo In the case of conflict, ranking the criteria in order of relative

subordination and primacy helps (e.g. Common law is subordinate to statute.)

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Subordination and Derivation in ROR – the Internal and External Points of View

- Distinguishing ‘subordination’ from ‘derivation’o Subordination – E.g. Customary law and common law are

subordinate to statutes, because the statute can deprive customary law or common law of their status. A good example is s 2(2) of the Evidence Act, which provides that any common law that is inconsistent with the Evidence Act is repealed.

- For the most part, this ROR is not explicitly stated, but shown in the way rules are identified, e.g. by courts or other authorities or private persons and their advisers.

- Then, when it comes to the ROR, there are 2 types of ROR:1. Internal statement – the use of unstated ROR in identifying rules of

the legal system.a. ‘It’s the law that…”b. Usually mentioned by judges, lawyers, persons under the legal

systemc. People here personally accept the ROR as guiding rules d. Internal view naturally used by people who accept the ROR and

without explicitly stating that the ROR is accepted, applies the ROR in determining the validity of a rule.

e. Attitude of shared acceptance of rules2. External statement – an observer who records ab extra (Latin for

‘from the outside’) the fact that a social group accepts such rules but does not himself accept them.

a. ‘It’s the law that…’ but ‘in England, they recognise the law as… whatever the Queen enacts as law.”

b. Natural language of an external observer who, without accepting its rule of recognition, states the fact that others accept it.

Legal Validity in ROR

- Hart also argues that ROR explains the relationship between validity and efficacy.

- To Hart, the confusion/doubt/uncertainty surrounding the concept of legal ‘validity’ is gone when you can distinguish between:1. Personally accepted ROR in internal statements2. External statement of fact that a ROR is accepted by others

- What then is legal validity?o Hart: To say that a given rule is valid is to recognise that it satisfies

all the criteria provided by the ROR and is therefore a rule of the legal system.

o Then, Hart explores the relationship between the validity of law and the efficacy of law (i.e. how effective/successful the law is).

Efficacy – that a law is obeyed more often than it is disobeyed Ergo, Hart feels that there is no necessary connection

between validity and efficacy. Hart feels that the only time that efficacy is related to

validity is when the legal system provides that: “A rule is no longer a rule of the legal system if it stops being efficacious.”

- Furthermore Hart states: “One who makes an internal statement concerning the validity of a particular rule of a system may be said to

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presuppose the truth of the external statement of fact that a system is generally efficacious.”

o But, it is wrong to say otherwise: that validity means efficacy.o Eureka moment: So, if you can understand the relationship between

an internal statement of fact that a legal system is generally valid and the external statement of fact that a legal system is generally efficacious, then we can understand the common theory of asserting the validity of a rule to predict whether it would be enforced by the law (if you think about it, we do it not just as law students in law school, but also general laypersons in deciding how to live their lives).

Ultimate Rules, and the Supremacy Criterion in the ROR

- Also, the ROR provides the criteria by which the validity of other rules in the system is assessed.

o The ROR is the ultimate rule, where are are several criteria ranked in order of relative subordination and primacy

Amongst the criteria is supreme.- What is a supreme criterion?

o A criterion of legal validity or source of law is supreme if the rules identified by reference to it are still recognised as rules of the system, even if they conflict with the rules identified by reference to the supreme criterion.

E.g. Say there is an act titled ‘XYZ Act’. This Act not subject to any constitutional limitation. This Act is also able to deprive all other rules of law their status as law. Then, it is part of the ROR that in such a system that enactment by XYZ Act is the supreme criterion of validity.

Such examples are apparent in UK according to its constitutional theory, and even in the US where it does not have a constitution but it contains an ultimate ROR, which provides a set of criteria for legal validity, one of which is supreme.

Conclusions that may be made from Section I:

1. Function of an ROR: To provide criteria for identifying primary rules of a legal system. It can provide more than one criterion for identifying rules of the system, and each criterion is a ‘source’ of law. If more than one criterion is used, it may also provide rules for resolving conflicts between rules from different sources.

2. The ROR is a secondary rule – it is a rule about primary rules of a legal system, and is on a different level from those of primary rules

3. The ROR is a social rule accepted and used.4. Rules identified by the criteria provided by ROR are valid rules.5. The legal validity of a rule consists in it being a rule of the system in

question.6. Valid legal rules ‘exist’ as they fulfill the criteria set out by the ROR.

Individually, legal rules need not be obeyed to ‘exist’ as long as the bigger legal system in which they belong to is generally efficacious.

7. The ROR is not itself a ‘valid’ legal rule. Its existence is not dependent on satisfying criteria in another rule but consists instead in its actual use and acceptance.

8. The ROR is the ultimate rule in a legal system. Why? Because it is the rule containing the ultimate criteria of validity in a legal system.

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9. The ROR is a ‘legal’ rule in the sense that it provides the ultimate criteria for the identification of rules as legal rules, but it other respects, it is a matter of fact.

10.A legal system consists of a ROR and all of the rules identified by it (i.e. al the rules trace their validity back to the ROR).

11.A legal system exists when the ROR is accepted and followed and the rules identified by it are sufficiently effective.

12. Officials must follow and accept the ROR, whereas non-officials need only follow the rules identified by the ROR.

II. New Questions (Nicola)

- There are several difficulties.1. The first of which is that of classification; for the rule that, in the last

resort, is used to identify the law escapes the conventional categories used for describing a legal system, though these are often taken to be exhaustive.

2. A second set of questions arises out of the hidden complexity and vagueness of the assertion that a legal system exists in a given country or among a given social group.

Hart elaborates that there are different stages in law (e.g. from being unborn, to being wholly independent.)

One way of understanding the differences in the stages of law is to go back to the Austinian formulation – general habit of obedience. Hart criticises Austin’s formulation as he feels that is does not appreciate the complexity that make up the minimum conditions for a legal system.

Furthermore, the term ‘obedience’ is to Hart, both misleading and too generic. Obeying the law has different connotations for different people. For the average man on the street, it may mean simply abiding the law for fear of sanction. The average Joe obeys the law for himself only. For judges, obeying the law has a much more significant meaning, as their decisions affect the society at large.

- Hart then concludes that there are 2 minimum conditions necessary and sufficient for the existence of a legal system.

1. One that only private citizens need to satisfy. They may obey each ‘for his part only, and from any motive whatever; though in a healthy society they will in fact accept these rules as common standards of behaviour and acknowledge an obligation to obey them, or even trace this obligation to a more general obligation to respect the constitution.

2. Must also be satisfied by officials of the system. They must regard these as common standards of official behaviour and appraise critically these as common standards of official behaviour and appraise critically their own and each other’s deviations as lapses. Of course, it is also true that besides these there will be many primary rules which apply to officials in their merely personal capacity which they need only obey.

III. The Pathology of a Legal System (Ben Soh)

- Hence, to see if these 2 minimum conditions are fulfilled, evidence needs to be drawn out from different sectors of social life

o Existence of a legal system is ‘Not susceptible of any exact determination’. It exists on a spectrum of degrees.

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- The most unproblematic one is where the rules are recognized as valid and generally obeyed. This is the starting point where the existence of a legal system can be established.

o This can be likened to a social contract among the individuals and sectors within the system. It presupposes that the internal statement of fact that the legal system exists.

- The problem then, arises when we refer to the external statement of fact that a legal system exists. This results from a breakdown in the presumption of the internal statements of law.

o Revolutiono Enemy Occupation o Anarchy

- There is an interesting question that arises after such an interruption then. It could be crudely put as: “What happens to the legal system within the interruption?”

o What was or was not ‘law’ in the territory during the period of interruption?

o In the scenario where the court had existed in exile and came back after the period of interruption, what is considered to be the new establishment of internal law?

- Birth of legal systems via colonies and imperialisation arising from the historical context. This was how most legal systems in the various states are birthed, seeing that majority of the world used to be centralized under the colonial powers.

o Example of Commonwealth states under the Westminster Parliament

Shifting of rule of recognition within the colony to become distinct from the parent

Reluctance of Parent to let go of Colony- Of course, all of this is premised on the rule of recognition. Without the

assumption of such a rule, it is impossible to fathom the existence of the said legal systems.

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