The Rule of Recognition
1. Introduction:
Hart – describes the legal system as a combination of primary and secondary rules.
In his seminal work ‘The Concept of Law’, he proposes the “rule of
recognition”, a kind of secondary rule which validates a legal system, and
which is central, foundational, and essential to every legal system.
In his view, the ultimate source of validity in every legal system is
this rule of recognition.
BUT – the existence of such rule of recognition is not without controversy.
Dworkin, in particular, is especially critical of Hart’s analysis.
The disagreement between these two writers brings out the essence of the “is/ought
distinction”.
Theorists like Dworkin adopt a natural law perspective, by which they believe that
social facts alone cannot determine its own relevance.
The fact that society has agreed to follow the law does not matter, there needs
to be a moral input.
A strong reason behind this is democracy, providing the link between
Parliament and the laws created.
Hart, on the other hand, ascribes to a legal positivist view, seeing the law as a system
of human creation.
According to such view, it is not surprising that the law is made up of social
facts, for we have this in other areas of life, sports for example.
It is not only possible, but completely valid, to have descriptive facts at the
basis of law as we should not be deriving ought from is, but rather we should
be deriving is from is.
(NEW PARA) The first part of this essay will examine Hart’s reasoning for the
essential role of a rule of recognition and how this theory provides a solution to the
“chicken-and-egg” problem proposed by Shapiro.
The second half of this essay will examine two subsequent criticisms put
forward by Dworkin: that the rule of recognition fails to account for the
manifest existence of legal principles and theoretical disagreement.
By emphasising the fact that Hart seeks to propose a “social” rule, it
will be shown that his theory can stand up to such criticisms.
2. Hart’s Theory:
Hart invites the reader to imagine a primitive society where there are only primary
rules of obligation which are in essence customary, a society without any legislature,
courts, or officials of any kind.
While the members of such a society may feel obliged to follow these
primary rules of obligation, perhaps through fear of social pressure, such
kinds of rules would not make a common standard which can be the basis of
a system.
For instance, if a conflict of opinion arose between two individuals, there is
no measure for determining which view should prevail, nor a procedure
through which to settle the conflict.
This is a defect in the primitive society which Hart terms as
uncertainty.
In his words, these rules by which the group lives will not form a
system, but will simply be a set of standards, the only identifying or
common mark being that they are the rules which a particular group
of human beings accept.
(NEW PARA) To remedy this, Hart proposes that it is essential that these primary
rules be supplemented by a kind of secondary rule – his rule of recognition.
, It must be stated as a preliminary point that while Hart does believe this
uncertainty to be a genuine defect, this is not why secondary rules are
necessary; he is not moving from normative to descriptive.
Hart merely expresses this defect to highlight what this secondary
rule would do.
In this way, he is not necessarily proposing a historical development
but merely an explanatory approach.
Such rule of recognition proposed establishes a test for valid law, confers validity, and
unifies all the laws in a legal system.
In early law of many societies, this may have been through no more than an
authoritative list or text of rules, however, in modern legal systems, this is of
course, more complex.
As Hart articulates, instead of identifying rules exclusively by reference to a
text/list, this is done also by reference to some general characteristic
possessed by the primary rules.
This may be the fact that they have been enacted by a specific body,
or their long customary practice or their relation to judicial decisions.
In either case, by acting as a supplement, the rule of recognition
converts this primitive regime of primary rules of obligations into a
legal system and is therefore foundational and essential; it provides
the ultimate source of validity.
3. Solution to ‘Chicken-and-Egg’ Problem:
To further this point, this rule of recognition arguably provides a solution to Shapiro’s
‘chicken-and-egg’ problem, which he articulates through his story of Lex, the village
elder, and Phil, the philosopher.
As he cogently points out, a body only has power to create legal norms if an
existing legal norm confers that power. What’s more, such norm conferring
power to create legal norm can only exist if a body with power to do so
created it.
This paradox is a paradigm ‘chicken-and-egg’ problem – the existence of
one presupposes the existence of the other.
By this reasoning, no assertion of legal power could ever be true; trying to find the
top of the chain of authority leads us either in a circle or to an “infinite regress”.
Hart’s rule of recognition solves this issue, evidenced by his characterisation of it as
the “ultimate rule of a system”.
While, as aforementioned, in order to ascertain whether a rule is legally valid
we must use a criterion of validity provided by another rule, in relation to the
rule of recognition, there is no rule providing criteria for the assessment of its
own legal validity.
The rule of recognition is, in Hart’s words, “ultimate”. By this he means that
its existence is a matter of fact.
While a subordinate rule of a system may be valid and, in that sense,
“exist” even if it is generally disregarded, the rule of recognition, as
Singer phrases it, exists “as a complex, but normally concordant,
practice of the courts, officials and private persons in identifying the
law by reference to certain criteria.”
In this way, it represents an internal, rather than external statement of fact.
Despite these cogent arguments in favour of a rule of recognition being a fundamental element and
the ultimate source of validity in every legal system, it has not been free from criticism, none coming
more strongly than from Dworkin.
4. Dworkin Criticism 1: Existence of Legal Principles:
