Hart’s positivism

We discussed Hart’s theory that law is the union of primary and secondary rules.

Obligation again

We began with Hart’s remarks about obligation and the difference between the internal and external aspects of rules.

The material on what Hart called the internal and external points of view makes his discussion of obligation complicated. That is most directly aimed at the legal realists, who treat having a legal obligation as equivalent to a prediction about punishment.

The internal point of view is the point of view of someone who accepts a rule and attempts to comply with it. For example, you take the rules of English grammar as telling you what you can and cannot say. The external point of view is the point of view of someone who is concerned with what will happen if a rule is broken or kept. The rule itself is only relevant in helping to make a prediction. You do not typically adopt the external point of view with regard to grammar. You don’t try to predict the consequences of keeping or departing from the rules of grammar might be when you’re speaking or writing. You just, well, follow the rules.

Hart’s opponents maintain that the question “what is law?” is a request for a prediction about what the state will do. Will I be punished if I do this? Will the state enforce this contractual agreement? The stuff that people study when they study the law, meaning statutes, judicial decisions, and so on, is only useful because it aids them in making accurate predictions about what the state will do. Hart argues that those who hold this opinion are missing out on the internal point of view.

We talked about this at some length. I’m going to pass over many interesting comments and cut to the end. Mollie, Leo, and Taylor all expressed skepticism about Hart’s comparisons with games. We can see why someone playing chess would adopt the internal point of view on the rules of chess. It would be bizarre to move the pieces around in ways forbidden by the rules. You sat down to play chess and that’s not playing chess. But it’s different with the law. The law isn’t a game that people choose to play. It is of interest to us primarily for the reasons the realists give: it lets us predict how the state will use its power. So many of us thought that Austin and the realists were on solid ground in saying that the external point of view is the one that is relevant to the law.

However, as Gabe pointed out, Hart is in a much stronger position when it comes to the secondary rules. These are rules that seem to be laws but they are not plausibly construed as commands or guides to how the state will use its power. So let’s turn to them.

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.

  1. The rule of recognition is used to identify the rules that are laws and distinguish them from those that are not laws.
  2. Rules of change are used to make and alter laws.
  3. Rules of adjudication are used to settle conflicting interpretations of the law.

For example, in our society, rules passed by Congress and signed by the President are recognized as law because the Constitution says they are. The Constitution is clearly part of our laws, but its rules do not involve commands or sanctions. Similarly, we recognize judges as having the authority to interpret laws and settle disputes about them. They get this authority from other laws that give them this authority. But the laws that create the judiciary do not seem to be commands or useful guides to predictions.

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 rule of recognition

The rule of recognition is the most important secondary rule. We spoke briefly about what the rule of recognition is in our society. Since there are several sources of law in our system, our rule of recognition will be complex. I said that I was not sure if the Constitution was supposed to be part of the rule of recognition for us or if there was something above it, so that we recognize the Constitution as law because it was, say, adopted by “we the people” (or, really, the states).

This brings out something significant about the rule of recognition. It is not itself legally valid law. It can’t be because it isn’t derived from any other legal rule in the system. According to Hart, a rule of recognition exists for a given society only if the members of that society follow it.

Key concepts

  1. The internal and external aspects of (or points of view on) rules
  2. The difference between primary and secondary rules
  3. The three secondary rules
  4. The rule of recognition in particular