We discussed Hart’s theory that law is the union of primary and secondary rules.
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. He proposed three kinds of secondary rules.
The rule of recognition is used to identify the rules that are laws and distinguish them from those that are not laws.
Rules of change are used to make and alter laws.
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.
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. Hart lists several possible sources of law as an example: authoritative texts, legislation, customary practice, commands from someone like a sovereign, past judicial decisions, or a constitution (Hart 1994, 100–101).
I asked whether the rule of recognition is redundant with the rules of change. If the rule of change says that the legislature can create a law with the consent of the President, then isn’t it doing everything you need the rule of recognition to do? You can recognize laws by tracing the history of their enactment: if they comply with the rule of change, they are laws and if they don’t, they are not.
I think that would work for everything Hart lists on pp. 100–101 except customary law. You could not trace the origins of customs to a moment when an authoritative body enacted them, causing the law to change.
However, I am not sure Hart’s rule of recognition could do an adequate job of identifying customary law either. This is something we are going to talk about when we discuss Dworkin’s criticism of Hart.
Disputes about the validity of rules
Matthew raised a question about how people could go about disputing the validity of rules. I think that these rules are valid rules of law and you disagree. How do we settle our disagreement?
Generally speaking, we are supposed to appeal to the rule of recognition. But Matthew was right to suspect that this will only get us so far. What if we disagree about the rule of recognition? You think valid law comes from a source that I do not regard as a source of valid law. What happens then? Well, however we settle our dispute, it won’t be by appeal to a rule. By hypothesis, we are out of rules when we are disagreeing about the rule of recognition. That is because the rule of recognition is the ultimate rule for determining whether other rules are rules of law.
This brings up an important point 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. As Peter put it, a rule of recognition exists for a given society only if the members of that society follow it.
The difference between primary and secondary rules
The three secondary rules
The rule of recognition in particular
Hart, H. L. A. 1994. The Concept of Law. Second edition. Oxford: Clarendon Press.