Overview

We know that Austin’s theory is that laws are commands and Hart’s theory is that they are rules. But there are lots of rules out there: rules of games, morality, etiquette, rules of the road, and so on. Which rules are the rules that make up the law? The answer, according to Hart, is that law is the union of primary and secondary rules.

One more time: law is the union of primary and secondary rules.

Spelling that out is our task for the day.

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

Primary and secondary rules

Primary rules are rules for behavior. They say what you are permitted and forbidden from doing. And they tell you what you are capable and incapable of doing, like, making a will or deciding a case in court. Secondary rules are rules about rules. They concern how to make, modify, and interpret rules.

Hart identifies three kinds of secondary rules as essential for legal systems.

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?”

In our discussion, I think it would be interesting to talk about the rules of recognition in real societies. What is the rule (or rules) of recognition in the US? Korea? California?

We will also want to talk about how these rules of recognition get their status. What makes something the rule or recognition for a given society? Is it a law or something else?

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.)