Hart’s positivism

Notes for January 30

Main points

Hart contended that law is the union of primary and secondary rules. He developed this account out of criticisms of Austin’s command theory by showing how treating laws as rules would avoid an array of problems with Austin’s view. We talked about the difference between primary and secondary rules and one secondary rule in particular, the rule of recognition.

Primary and secondary rules

Primary rules are rules for behavior: Austin’s commands are an excellent example of primary rules. Secondary rules are rules about, well, rules. They concern how to make, modify, and interpret rules.

Hart illustrated secondary rules by asking us to imagine a society that only had primary rules. In doing so, he made two points. First, secondary rules are very useful. Second, a society that lacks secondary rules would not have a legal system and so would not have anything recognizable as law. This would be so even if it had rules governing the behavior of its members, as any organized society would have to have.

The most important secondary rule is the rule of recognition. That is the rule that enables us to identify the other rules that make up the law. As the ultimate rule for the system, it is not derived from any other rule. Other rules may be valid even if they are not effective. That is, they may be valid because they are derived from higher rules in the system even if people don’t follow them. But the rule of recognition for a given society exists only if people follow it. There is no higher rule from which it could be derived.

What is our rule of recognition?

We had some discussion about what the rule of recognition is in our society. It’s pretty clear that the Constitution, the legislative bodies, and the judiciary are all sources of law: the Constitution establishes the parts of the government, legislatures write statutes, and judges settle questions about the interpretation of the Constitution and statutes.

But it is not clear to me whether we have a sovereign or not. You could read the Constitution as saying that the law ultimately issues from “the people.” It starts “We the people,” for instance. If so, maybe there is a sovereign in the United States: the people of the United States. On the other hand, it isn’t clear what an amorphous group like “the people” could do to act like a sovereign. You could make a strong case that, in practice, we treat the Constitution all by itself as a source of law, without any additional inquiry into what ‘the people’ think or what they have done to express their desires

Key concepts

  1. The difference between primary vs. secondary rules.
  2. The three secondary rules that make up a legal system, according to Hart.
  3. The rule of recognition in particular.
This page was written by Michael Green for Philosophy of Law, Philosophy 34, Spring 2014. It was posted February 7, 2014.
Philosophy of Law