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 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.
The rule of recognition replaces Austin’s sovereign as the source of law that is not itself established by other parts of the legal system.
Callum charged that Hart exaggerated the difference between his position and Austin’s. His point, I take it, was that accepting a society’s rule of recognition is not a fully voluntary process for the vast majority of people.
I think that’s right. The rule of recognition is not like a social contract. There’s no requirement that it be voluntarily entered into. Logically speaking, it’s possible to have a rule of recognition established entirely by coercion. To put it another way, Hart’s only point is that the rule of recognition exists only if people accept it. He doesn’t say anything about why they accept it.
I also think Callum is right to say that accepting the rule of recognition is not like a fully voluntary choice. My choice about what to drink with lunch, for instance, is as close to a fully voluntary one as I’ll make: there are multiple options, none are costlier than any other, and no one is exerting any pressure on me to make any particular choice. By contrast, most people don’t have multiple options like that when it comes to accepting a legal system and there’s considerable pressure to conform. In fact, it’s a little odd even to call it a choice. We just accept the legal system in our society; we don’t consciously choose to do so except in unusual circumstances.
Finally, I think Callum is right to say that Hart’s presentation leaves some of the gritty detail of how all this works out. That said, I wouldn’t go as far as he did in the initial presentation of his idea (and I think he agreed in the end). Hart is still on solid ground in saying that the rule of recognition does not have to be the product of a command such as Austin described. And he would be right to say that in most societies the rule of recognition is accepted without anything like an explicit threat backing it up. People just take it for granted that laws are made this way without thinking much about why that is so. They just take that as a rule. That’s far enough from Austin’s model of commands for Hart’s purposes.