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.
The rule of recognition is used to identify the rules that are laws
and distinguish them from those that are not laws.
Rules of change are used to make and alter laws.
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 7.1 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?
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.
The difference between primary and secondary rules
The three secondary rules
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.
“Every Bill which shall have passed the House of
Representatives and the Senate, shall, before it become a Law, be
presented to the President of the United States; If he approve he shall
sign it, but if not he shall return it, with his Objections to that
House in which it shall have originated, who shall enter the Objections
at large on their Journal, and proceed to reconsider it. If after such
Reconsideration two thirds of that House shall agree to pass the Bill,
it shall be sent, together with the Objections, to the other House, by
which it shall likewise be reconsidered, and if approved by two thirds
of that House, it shall become a Law. But in all such Cases the Votes of
both Houses shall be determined by yeas and Nays, and the Names of the
Persons voting for and against the Bill shall be entered on the Journal
of each House respectively. If any Bill shall not be returned by the
President within ten Days (Sundays excepted) after it shall have been
presented to him, the Same shall be a Law, in like Manner as if he had
signed it, unless the Congress by their Adjournment prevent its Return,
in which Case it shall not be a Law.”↩︎