Hart’s positivism Notes for February 2

Main points

Hart claims that law consists in the union of primary and secondary rules. He identifies three secondary rules. The most important one is the rule of recognition.

We talked about Hart’s rule of recognition. Most of our discussion surrounded what would count as a rule of recognition for international law. We also compared Hart’s view with Austin’s account of sovereignty.

International law and the rule of recognition

I was asked “is international law really law, according to Hart’s theory?” I converted that to a slightly different question: “what would the rule of recognition for international law be?”

After kicking it around a bit, it seemed to us that a signed, ratified treaty was a plausible source of international law. So “being a signed, ratified treaty” seemed like a good rule for recognizing a genuine international law.

That said, we weren’t certain that it was enough. Countries break their treaty obligations, after all. By itself, this isn’t definitive. Criminals break laws, but that doesn’t mean we lack laws. Still, if compliance is low enough, you might start to wonder whether we really recognize our treaties as laws.

Ryan suggested that our failure to enforce treaties with significant, predictably applied sanctions shows that we aren’t serious about regarding them as a source of law.

The Supreme Court

I said that the rule of recognition is disputed in the US. Some people think that courts can contribute to what the law is by establishing legal precedents. Others think that this is not so; they insist that only legislatures or the original constitutional convention can establish laws. The former do, and the latter do not, follow a rule of recognition that counts court decisions as a source of laws.

I should have added that we shouldn’t exaggerate the scope of these sorts of disputes. There is considerable agreement about the source of law in this country. Still, there is some disagreement even at the highest levels of government. It’s an interesting fact that our system of law and government moves along despite that disagreement.

This page was written by Michael Green for Philosophy of Law, Philosophy 34, Spring 2009. It was posted February 3, 2009.
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