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.

We talked about the distinction between primary and secondary rules and about the most important of secondary rule: the rule of recognition.

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. 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? 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.

Zach and I had a revealing back and forth about the Constitution. The question was: what makes the Constitution a source of (or part of) our law? Zach pointed out, correctly, that the Constitution was adopted by votes in a representative assembly. I pointed out, also correctly, that the nature of that assembly wouldn’t pass muster today. I wasn’t trying to say that the Constitution is illegitimate or a sham. Quite the contrary. The point I was trying to make is that the Constitution is a source of law for us because we treat it that way. We adopt what Hart calls the “internal” perspective and treat it as telling us how to make laws (Article 1, Section 7) or what rights we have against the Federal Government (see the first ten or so amendments, for example). We don’t think much about whether we approve of the Constitution’s origins because we don’t have to for it to play its role. We just accept that it is a source of the law.

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

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.)