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THE CONCEPT OF LAW; CHAPTER 6; H.L.A. HART.

In this chapter H.L.A. Hart tries to throw light on what forms the legal system. This he
does after allegedly showing adequately how the works of Jurists like Austin and
others were found to be inadequate. He tries to come up with his own ideas of the
foundations of a legal system.

Rule of Recognition and Legal Validity.

Wherever a secondary rule of recognition is accepted and used for the identification
of primary rules, both private persons and officials are provided with authoritative
criteria for identifying primary rules of obligation. This is especially true for complex
settings as we are presented with in the modern world.

In simple societies, the sole criteria for adjudicating whether something is law would
be the reference to the fact of enactment by Rex. However, in modern societies there
are a variety of sources of law and thus, the rule of recognition is far more complex.
“The criteria for identifying the law are multiple and commonly include a written
constitution, enactment by a legislature, and judicial precedents.” Provision is also
made for conflict on which source is superior. For example in the United Kingdom,
common law is considered inferior to statute.

In our societies, according to Hart, all kind of law owes its status as law not to the
‘tacit’ commands of the Sovereign but to the acceptance of “a rule of recognition”
which accords them their status even if that may be a subordinate one like in the case
of common law.

Normally the rule of recognition is not stated, but has a factual existence, i.e. “its
existence is shown in the way in which particular rules are identified, either by courts
or other officials or private persons or their advisers.”

MOIZ AHMED.
BARRISTER-AT-LAW
ADVOCATE HIGH COURT.
M.A. (INT’L RELATIONS)
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Hence, Hart feels that the rule of recognition is like the scoring system of any game.
“In the course of the game the general rule defining the activities which constitute
scoring is seldom formulated; instead it used by officials and players in identifying
the particular phases which count towards winning.” Further, there could a dispute
about the implementation of rules between the authoritative application of the rule and
its general understanding. Consider the result of the Oval Test match between
England and Pakistan. Such problems need to be catered for to account for the legal
system to exist.

The use of this unidentified and unstated rule of recognition by the courts and others
is “characteristic of the internal point of view.” “This like the expression ‘Out’ or
‘Goal’, is the language of one assessing a situation by reference to rules which he in
common with others acknowledges as appropriate for this purpose.”

This attitude of people equipped with the internal point of view needs to be contrasted
with those only in possession of the external point of view. These will resort to
terminology like “In England they recognize as law….whatever the Queen in
Parliament enacts…” this is an external statement because it is categorical of a person
who “without himself accepting its rule of recognition, states the fact that others
accept it.” If we can understand the distinction of the internal point of view from the
external point of view then “many obscurities concerning the notion of legal
‘validity’ disappear.” To categorize some rule as valid, we can simply state that it has
met the criteria of validity set by the rule of recognition of that system.
Some problems seem to arise when a connection is made between the ideas of validity
and effectiveness. Hart does accept that to access the rule of recognition, the internal
point of view to identify the primary rules would be a futile exercise if the system is
not effective. But he states that before embarking on the identification of the rule of
recognition’s factual existence it is assumed that the system is effective.

When a judge makes a statement based on a rule “his statement that a rule is valid is
an internal statement recognizing that the rule satisfies the tests for identifying what

MOIZ AHMED.
BARRISTER-AT-LAW
ADVOCATE HIGH COURT.
M.A. (INT’L RELATIONS)
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is to count as law in his court, and constitutes not a prophecy of but part of the reason
of his decision.”

Description of the Rule of Recognition

The rule of recognition for Hart is the ultimate rule. Further, there are many other
criteria ranked in order of relative sub-ordination and the “prime one of them is
supreme.” It is vital to distinguish between these two to disentangle from the idea that
“somewhere in every legal system, even though it lurks behind legal forms, there must
be a sovereign legislative power which is legally unlimited.” The idea of the supreme
power only refers to a relative place on a scale and do not refer to legal illimitability.
The ideas of supreme and ultimate are however, easy to confuse.

We can understand the rule of recognition as the ultimate rule if we raise the question
about the validity of any rule and to answer the question use the criterion of validity
provided by another rule. When we “are brought to a stop in inquiries concerning
validity: for we have reached a rule which, like the intermediate statutory order and
statute, provides criteria for the assessment of the validity of other rules; but it is also
unlike them in that there is no rule providing criteria for the assessment of its own
legal validity.” Hart acknowledges that there are other questions that could be raised
about this ultimate rule but when we ask these questions about this rule similar to
those we asked earlier in reaching to this rule, “we have moved from an internal
statement of law asserting the validity of a rule of the system to an external statement
of fact which an observer of the system might make even if he did not accept it.”

It has been said about the rule of recognition by some writers that the ultimate rule
can be “postulated” or is a “hypothesis”. This idea can be severely misleading even if
such statements (internal) may carry some presumptions. What is left unstated by
judges, etc forms the background and could be stated as external facts about the
system and thus presupposed by them. These presupposed matters consist of two
things. First, the person making these presuppositions uses the rule of recognition

MOIZ AHMED.
BARRISTER-AT-LAW
ADVOCATE HIGH COURT.
M.A. (INT’L RELATIONS)
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which he considers appropriate for identifying the law. Secondly, this rule is actually
accepted and applied generally in the operation of the system. If the truth of this
presupposition were doubted it could be empirically tested by reference to the actual
workings of the system, e.g. law courts, etc.

The rule of recognition can “neither be valid or invalid but is simply accepted as
appropriate for use in this way. To assume the validity of this rule is to say something
like that we assume “the standard meter bar in Paris which is the ultimate test of the
correctness of all measurements in metres, is itself correct.”

Hart acknowledges that there are question about the precise content or scope of this
kind of rule, and even to its existence, that would be difficult to answer in a clear or
determinate way.

“The Rule of Recognition exists only as a complex, but normally concordant, practice
of the courts, officials, and private persons in identifying the law by reference to
certain criteria. Its existence is a matter of fact.”

New Questions

After having asserted that the Rule of Recognition was the ultimate rule, H.L.A. Hart
diverts our attention to interesting new question. The abandonment of the conception
of the habit of obedience to a legally unlimited sovereign raises some new questions
that need to be catered for. Hart states that these questions shall only be investigated
to the extent of their impact on “the wisdom or un wisdom” of placing the union of
primary and secondary rules.

MOIZ AHMED.
BARRISTER-AT-LAW
ADVOCATE HIGH COURT.
M.A. (INT’L RELATIONS)
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The First difficulty

The first difficulty that Hart cites is that of classification. For example, how to classify
the rule that ‘what the Queen in Parliament enacts is law’? “It is not a convention,
since the courts are most intimately concerned with it and they use it in identifying the
law; and it is not a rule on the same level as the ‘laws strictly so called’ which it is
used to identify.” Passing this rule as a piece of legislation does not seem to solve the
problem for Hart as the existence of such a rule must “consist in an actual practice”
and secondly the legal status of such an enactment would depend on whether the rule
existed prior to and independently of the enactment.

So how can we ever show “that the fundamental provisions of a constitution which
are surely law are really law”? We have the option of resorting to state that these
rules are something at the base of the legal system that are not law, or pre-legal, or
meta-legal; or just political facts. It could be called either law or fact. Hart feels that
both ideas merit some attention but we will not be able to do justice by categorizing
the Rule of Recognition by choosing either one. “Instead we need to remember that
the ultimate Rule of Recognition may be regarded fro two points of view: one is
expressed in the external statement of fact that the rule exists in the actual practice of
the system; the other is expressed in the internal statements of validity made by those
who us it in identifying the law.”

The Second Difficulty

The Austinian formula “only caters for what we may term as the ‘end product’ of the
legal system.” This he believes caters or the idea of 'obey'. However, we can never
say that the legislators are obeying rules when they conform to their powers while

MOIZ AHMED.
BARRISTER-AT-LAW
ADVOCATE HIGH COURT.
M.A. (INT’L RELATIONS)
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legislating, and nor do they disobey when they digress from their legislative limits.
Nor does the concept of obey cater to the activity of judges. This concept of obeying
rules, for Hart, is “either no more than a convenient shorthand for complex facts
which shall await description, or a disastrously confusing piece of mythology.”

Hart feels that the majority of the population has no conception of the legal structure
or of its criteria for validity and that the common man could follow law for a variety
of reasons. Among these will often be ‘the knowledge that it will be best for him to do
so.’

In order do find out that a legal system exists we just need to see that “the laws which
are valid by the system’s test of validity are obeyed by the bulk of the population this
surely is all the evidence we need in order to establish that a given legal system
exists.” However, this is not all that will be needed to show the relationship of law in
the system. That will be shown by the relationship of the officials in the system to the
secondary rules which concern them as officials. These officials should share a
unified official acceptance of the Rule of Recognition.

The use of blanket terms like obedience is misleading as it may denote that he only
thinks of following the rule out of fear, or inertia or without thinking, i.e. not feeling
that he is under an obligation. This personal affiliation with the law is acceptable as
far as the general populace is concerned, but it “cannot characterize the attitude of the
courts to the rules with which they operate as courts.” Individually some courts may
deviate from these rules at occasions but as a general practice they must “be critically
concerned with these deviations as lapses from standards, which are essentially
common or public.” This for Hart is the necessary condition of our ability to speak of
the existence of a single legal system.

Hence, there are two minimum conditions necessary and sufficient for the existence
of a legal system. First, the citizens and officials both must follow those rules
validated by the systems rule of recognition and secondly, its rule of recognition

MOIZ AHMED.
BARRISTER-AT-LAW
ADVOCATE HIGH COURT.
M.A. (INT’L RELATIONS)
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specifying the criteria for legal validity and further, its rules of change and
adjudication must be accepted as standards of official behavior by the officials in the
system on the other hand.

Hence the legal system has “Janus-faced” requirements. “It is merely the reflection of
the composite character of a legal system as compared with a simpler decentralized
pre-legal form of social structure which consists only as primary rules.”

The Pathology of a Legal System

Evidence for the existence of the legal system is found in two different situations of
social life. The first is the one where the rules recognized by the officials as valid are
generally obeyed and there is a smooth running administration.

The second difficulty arises where the officials are “detached from the private sector,
in the sense that there is no longer general obedience to the rules which are valid
according to the criteria of validity in use in the courts.” These “represent a
breakdown in the complex congruent practice which is referred to when we make the
external statement of fact that a legal system exists.” Here we can say that the system
is only partially effective. This is in the case of a revolution, an enemy occupation or a
civil war like situation, etc.

In such situations there are likely to occur halfway stages, i.e. the courts might still
function and claim to uphold the law of the overthrown or partly effective government
but then the orders passed by such a court might not actually be effective by means of
enforcement. The problematic question in such a situation is when to determine when
we can say that the legal system has ceased to exist. This for Hart “is a thing not
susceptible of any exact determination.” This is so because there might be a chance of
restoration of the old regime or that in war like situations there could be a likelihood
that normalcy would be achieved that would be the same as during the time of peace.

MOIZ AHMED.
BARRISTER-AT-LAW
ADVOCATE HIGH COURT.
M.A. (INT’L RELATIONS)
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If everything is restored then again further difficult questions may arise about “the
relations between the courts and the population” and about whether any laws passed
by the old regime were actually laws i.e. “what was or was not law?”

It is vital here to understand that the question may not be one of fact. “If it were one of
fact it would have to be settled by asking whether the interruption was so protracted
and complete that the situation must be described as one in which the original system
had ceased to exist and a new one was set up similar to the old.”

This question can be asked as a question of International law or “as a question of law
within the very system of law existing since the restoration.” In the case of law the
restored system might resort to the approach of deeming the law to have been
“continuously the law of the territory.” This conclusion might seem strange if the
interruption had been long. In such a situation “there is no reason why the declaration
should not stand as a rule of the restored system, determining the law which its courts
must apply to incidents and transactions occurring during the period of interruption”.
Hart believes that apart from the problem of self reference, the law passed and applied
during the disturbed period “is no different from a law of one system declaring that a
certain system is still in existence in another country , though the latter is not likely to
have many practical consequences. “ Here consider the example of the Tsarist regime
of Russia given by Hart on page 119 and 120.

Hart also considers the example of the Common Wealth and the former colonies
under the control of the Westminster Parliament. Consider the idea that once the
country no longer remains a colony of the United Kingdom but essentially retains the
legal system given by the Westminster Parliament. Here Hart says that the “legal
system in the former colony has now a local root in that the rule of recognition
specifying the ultimate criteria of legal validity no longer refers to enactments of a
legislature of another territory.” The new rule is simply that is now used in the local
system whose rules are generally obeyed. The new systems enactments are now valid

MOIZ AHMED.
BARRISTER-AT-LAW
ADVOCATE HIGH COURT.
M.A. (INT’L RELATIONS)
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under the rule of recognition locally accepted, “enactment by the local legislature is
an ultimate criterion of validity”.

If the UK legislature or the system having the initial rule of recognition does not
accept that it has ceased to exist in a certain geographical location or a system then for
Hart, there will be two legal systems. Hence we can say about a conflict on a decision
passed by the local legislature that “the statement of fact is true and the proposition of
English law is ‘correct in English law’.”

Hart also forwards the example of South Africa where there were troubles between
the judiciary and the legislature in the case of Harris v. Dongs (page 122). Perhaps,
you can also consider your own judicial crises.

“Till the population became divided and ‘law and order’ broke down it would be
misleading to say that the original legal system had ceased to exist: for the expression
‘the same legal system’ is too broad and elastic to permit unified official consensus on
all the original criteria of legal validity to be a necessary condition of the legal system
remaining ‘the same’.”

MOIZ AHMED.
BARRISTER-AT-LAW
ADVOCATE HIGH COURT.
M.A. (INT’L RELATIONS)