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Where is Hart’s rule of recognition actually written down?

Sam Ellery Fellow
· 5 replies
LawAnalyticH. L. A. Hart#concept-of-law#legal-positivism#legal-validity#rule-of-recognition
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Its coordinates: 6.2 Philosophy of Law

One of my debaters ran a case on constitutional law last month and I realized I couldn't answer a basic question her opponent asked, so here I am.

I've been reading Hart's The Concept of Law (1961). I follow the outline: primary rules tell people what to do, secondary rules are rules about rules, and the most important secondary rule is the rule of recognition, which tells officials what counts as valid law in the system. A statute is valid because it was passed in the way the rule of recognition specifies.

Fine. But where is the rule of recognition? If it's the constitution, then what makes the constitution valid? Another rule? Then we're off on a regress. And some countries, like the UK, don't have a single written constitution at all, yet their courts clearly know what counts as law.

I also have a second, more cynical worry. If the answer is "officials just accept it," then isn't law ultimately whatever the people with power agree to treat as law? That sounds like the gunman theory Hart was supposed to be refuting.

I'd love an explanation I could give a sharp seventeen-year-old.

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5 answers

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  1. Hamza Qureshi

    ✓ Accepted answer Fellow

    The short answer for your student: it isn't necessarily written down anywhere. For Hart the rule of recognition exists as a social practice among officials, above all judges, who identify law by common criteria and treat those criteria as standards they are bound to follow. Its existence is a matter of fact, not of validity. It is not valid or invalid; it is simply there, or not, in the behaviour and attitudes of officials.

    That stops the regress. A statute is valid because it satisfies the criteria; the criteria are not "valid" in turn, they are practised. Hart's own illustration for England was roughly "whatever the Queen in Parliament enacts is law", which no statute ever enacted.

    On the cynical worry, see Khalid's answer below, but the key word is acceptance from the internal point of view: officials do not merely comply out of fear, they use the rule as a reason and criticise deviations from it. A gunman's victims obey without accepting anything. That difference is what Hart thinks Austin's command theory could not capture.

    A local footnote: in 1958 our own Supreme Court reached for Kelsen's idea that a successful revolution creates a new legal order, which shows how much turns on what officials will accept.

    Helpful · 1
    1. Sam Ellery

      Fellow

      That helps a lot. But Hamza, doesn't "officials accept it" just move the cynicism one step? Why is a judge's acceptance different in kind from a gang's agreement about whose orders to follow?

      Helpful · 3
      1. Khalid Mahmood Awan

        Fellow

        Sam, I sat in courtrooms for thirty-one years, and a judge I knew well used to answer your cynic like this. The difference is not that judges are virtuous; some were not. It is that the rule we applied bound us. We criticised one another, and were overturned, for departing from it. A gang's agreement binds the members to the boss. The rule of recognition binds the bosses too, or it is not functioning as one.

        Hart's attack on Austin was precisely that a legal system is not a gunman writ large: it contains rules that constitute and limit the officials themselves. Your cynic is not wrong that power matters. He is wrong that law is only power.

Other answers

  1. Tomasz Szewczak

    Fellow

    Logically it's quite elegant. Kelsen ended his chain of validity with a basic norm that has to be presupposed. Hart ends it with a fact about a practice. One stops the regress with a hypothesis, the other with sociology. I find Hart's more honest, though it means the foundations of law are empirical and can shift.

    Helpful · 2
  2. Deepa Kartha

    Fellow

    For your student's case, Indian constitutional law gives a striking example of the rule of recognition moving through judicial practice. In Kesavananda Bharati (1973) the Supreme Court held that Parliament's power to amend the Constitution does not extend to destroying its "basic structure". No text says that. It became part of what officials treat as law because the courts asserted it and the other institutions, over time, accepted it. That's Hart's picture in action: a fact about official practice, not a clause on paper.

    Helpful · 1