Philosophy of Law Fall 2019

Hart’s Positivism

Overview

We know that Austin’s theory is that laws are commands and Hart’s theory is that they are rules. But which rules are the rules that make up the law as opposed to, say, the rules of games, morality, etiquette, and so on? The answer, according to Hart, is that law is the union of primary and secondary rules.

After drawing the distinction between primary and secondary rules, we spent most of our time on the most important of secondary rule: the rule of recognition.

Primary and secondary rules

Primary rules are rules for behavior. They say what you can and cannot do. Secondary rules are rules about rules. They concern how to make, modify, and interpret rules. Hart proposed three kinds of secondary 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 in Article 1, Section 7. That functions as a rule of recognition and a rule of change. 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. While you could construe the laws that create the judiciary as commands (Austin) or useful guides to making predictions (Holmes and Frank), Hart thinks it is much clearer to simply call them rules.

The rule of recognition

The rule of recognition is the most important secondary rule. It is what the members of a society follow when they try to answer the question “what is the law?”

We tried to spell out the rule of recognition for our society by listing either things that are laws (statutes, e.g.) or sources of laws (the legislative acts and judicial decisions). We had some uncertainty about the Constitution. Is it a law (or set of laws) or is it a source of laws, that is, a rule we use to determine what is a law? Maybe both.

The upshot of this is that since there are several sources of law in our system, our rule of recognition is 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 [1961] 1994, 100–101). As far as I can see, they are all recognized in our society.

I asked what makes the Constitution either a source of laws or a part of the law. This is one of those questions that doesn’t really have an answer. There isn’t some other law that we can refer to in order to show that the Constitution can play these roles. Rather, the Constitution is just something we accept. We accept that some of its provisions give instructions for making laws while others specify legal rights.

In this way, the Constitution functions as what Hart calls “ultimate” rules. It’s a set of rules that are not derived from other rules. So why is it a rule of our legal system? It is because we accept it. That’s an important point about the rule of recognition: it is accepted rather than derived from other rules.

That’s Hart’s point about how the rule of recognition can’t be legally valid. The rule of recognition is what you use to determine what is genuinely part of the law and what is not. It isn’t legally valid itself (Hart [1961] 1994, 109–10).1

Our discussion

We talked about whether rules of recognition are redundant with rules of change. The idea was that since a rule of change tells you how to make a valid law, you don’t need a separate rule of recognition to identify the law that you made as a valid one. To put it another way, a rule of change might be: “a law is created or changed when a majority of Congress says so.” A rule of recognition might be: “a law is declared by a majority of Congress is a law.” Those are, obviously, two ways of referring to the same Congressional act and so you might think the two rules are redundant.

Patrick asked how you could have a rule of recognition for customary laws. It’s easy enough when your rule of recognition identifies a specific body that produces law: whatever the legislature passed is a law, for instance. But customs were never explicitly made by any identifiable body. So how do you come up with a rule that says which customs are laws and which ones are not? This is a problem that Dworkin is going to bring up next week. Stay tuned!

Main Points

These are the things you should know.

  1. The difference between primary and secondary rules
  2. The three secondary rules
  3. Why the rule of recognition cannot be derived from any other legal rules. (If you know that, you know how the rule of recognition works.)

References

Hart, H. L. A. (1961) 1994. The Concept of Law. 2nd ed. Oxford: Clarendon Press.


  1. Hart refers to the standard meter bar in Paris to illustrate the point. You can’t say whether that bar is really a meter or not because the length of that bar is the standard for determining what a meter is: anything longer or shorter than that bar is not a meter. However this is no longer true. A meter was redefined in 1960 in terms of the distance covered by light over a (very short) period of time. So now you can ask whether the bar is really a meter or not.↩︎