Hart prepares the ground for his own theory of law by examining the failures of an earlier (19th century) theory of law-i.e. John Austin.
Austin’s theory of law was very simple, perhaps even simplistic.He proposed that law is (or laws are) the commands of a sovereign. Hart systematically dismantled this definition of law. He showed that laws are not commands and legal systems are not based on what Austin called sovereigns.
We have already seen Hart’s analysis on Austin’s command model of the law. Thereafter, Hart’s criticisms with regards Austin’s theory.
Now it is time to review Hart’s additions, amendments, ‘improvements’ to legal theory.
Primary rules and secondary rules
Hart distinguishes between:
a) primary rules relate to people’s conduct and are generally duty-imposing rules. They require people to do or to abstain from doing certain acts or omissions. e.g. don’t commit murder,.
b) secondary rules relate to other rules, either primary or secondary, and are power-conferring rules. These rules describe how other rules can be created or modified, and belong to what Hohfeld calls second order jural relations.
Secondary rules are necessary to reduce uncertainty as to what primary rules are in force. They are also necessary if a legal system is to be dynamic rather than static, for there must be a mechanism by which primary rules and entitlements can be changed quickly and deliberately otherwise the law will become stagnant.
There are three types of secondary rules: a) rule of recognition provides for authoritative ascertainment of what the other rules are; b) rules of change confer public power to modify existing rules and private power to modify existing entitlements; c) rules of adjudication allow the authoritative ascertainment of rule violations and the imposition of authoritative sanctions.
Rule of recognition
The sense in which the rule of recognition is the ultimate rule of a system is best understood if we follow a very familiar chain of legal reasoning. If the question is raised whether some suggested rule if legally valid, we must, in order to answer the question, use a criterion of validity provided by some other rule. Is this purported by-law of the Oxfordshire County Council valid? Yes: because it was made in exercise of the powers conferred, and in accordance with the procedure specified, by a statutory order made by the Minister of Health…There may be no practical need to go further; but there is a standing possibility of doing so. We may query the validity of the statutory order and assess its validity in terms of the statute empowering the minister to make such orders, Finally…we are brought to a stop…for we have reached a rule which, like the… statutory order and the statute provides criteria for the assessment of the validity of other rules; but it is unlike them in that there is no rule providing criteria for the assessment of its own validity” CoL 107.
The rule of recognition is a single rule containing the over-arching set of criteria to which officials adhere when engaged in the activity of law ascertainment. It is the fundamental rule that states what a valid rule is and the existence of such a rule is the fundamental component of Hart’s concept of law. The existence of such a rule is also purely a question of fact: you determine its existence by simply looking at the behaviour of the officials who ascertain the rules; if most officials accept a certain rule as the rule of recognition, then that is the rule of recognition. So unlike other rules, the rule of recognition can never be valid or invalid—it can only be accepted or not accepted
Hart’s concept of law
In order to have a legal system, it is necessary that most officials accept the rule of recognition and the rules identified thereby. All that is required by citizens is simple obedience, although acceptance is desirable. Moreover, the two necessary and sufficient conditions for the existence of a legal system (in its central case) are primary rules which citizens generally (but not necessarily universally) obey, and secondary rules of recognition, change, and adjudication which official generally (but not necessarily universally) accept.
What is acceptance?
Hart distinguishes between obedience and acceptance: a) obedience is mere compliance and does not necessarily entail commitment. Mere obedience means you need only have an external perspective, either moderate or extreme although moderate is more likely. b) acceptance is compliance with commitment. Commitment entails the adoption of the critical reflective attitude and the internal perspective.
There is a limit, inherent in the nature of language, to the guidance which general language can provide…Natural languages like English are…irreducibly open-textured (CoL 126…128)
Inability to anticipate brings with it a relative indeterminacy of aim. (CoL 128)
Because of the vagueness and ambiguity of language legal norms will necessarily have an open texture. And because of the open texture of language, there will be a core of settledness and a penumbra of unsettledness in every legal rule. This is true even of the rule of recognition.
Hard cases involve the penumbra of unsettledness, while easy cases involve the core of settledness
Even within the area of open texture, rules still provide standards determinate enough to limit though not exclude judicial discretion (see CoL, p. 147).
One way to view Dworkin’s theory of constructive interpretation is as an attempt to explain how courts do and should fulfill what Hart characterises as their creative function, although Dworkin makes much grander claims for his theory himself.
Hart distinguishes between “finality” and “infallibility”. Infallibility exits when discretion is the rule—i.e. when the rule is that the law is whatever some official says it is. Finality exists where an official has discretion in applying a rule within certain specified criteria—in this case the official’s decision may be final but it is not infallible for it can be mistaken.
Next time the last Chapters from HLA Hart’s The Concept of Law.