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 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 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? China? Canada? Montana?

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?

Our discussion

Lilly pressed me on whether the rules of recognition, change, and adjudication can be tacit rather than explicit. I think the answer is that they can. This is probably most fruitfully addressed by thinking of the rule of recognition. I doubt many of us have explicitly spelled out exactly what makes something a law in our legal system but we all have a pretty good ability to say what counts as being part of the law.

We talked a bit about the US Constitution. I had said that Article I, Section 7 of the US Constitution functions as a rule of recognition since it says that Congress can make laws if it follows certain procedures. Xiya asked “but where does that come from?” I think that Hart would agree with Jayden and Nico that it doesn’t come from any other law. Rather, it’s just something that Americans agree on: that article of the Constitution is a rule that we use to identify laws.

Xiya made an excellent point here. The Constitution wasn’t democratically adopted. That’s completely correct. Its ability to function as a rule of recognition doesn’t depend on it’s being good or its having good origins. It works because people accept it. That’s the beginning and end of the story about how something becomes a rule of recognition.

That enables the theory to identify law in immoral regimes. Bad will have rules of recognition that are, presumably, pretty bad. But they can still have laws.

By the way, I have a copy of the US Constitution on the sakai site. It’s worth reading even if you are familiar with it. That will help with some of the readings coming up in the next three weeks.

Xiya gets the last word here. Austin defines the sovereign as someone that the bulk of the population is in the habit of obeying. The rule of recognition is not too different. A society’s rule of recognition exists if the bulk of the population acts as if it exists. She’s right to see a similarity there.

After class Xiya also observed that when you use a rule of recognition you are implicitly relying on a prediction that the other members of your society will continue to follow the same rule of recognition in the future. I think that’s true too. I think it’s a different kind of prediction than the one emphasized by the realists, but it’s a point of similarity.

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.)