Uncertainties of legal systems and rule of recognition

In analytical Jurisprudence HLA Hart’s view are the most imposing and since the publication of his book, “A Concept of Law” in 1961, the analysts have been forced to concede that his treatment of a legal system is comprehensive and based on strong foundations Hart defined law as consisting of primary and secondary rules. The first set of rules creates rights and obligations and the second set of rules provides for change, recognition and adjudications. As regards recognition, he argues that rule of recognition must exist to done away with uncertainty. This rule has been subject to much criticism. This paper accordingly attempts to define the nature of rule of recognition and its parameters.

The problem of uncertainty is addressed by a legal system by providing a rule which determines which rules are binding. Hart termed it as the “rule of recognition”, this rule can determine normative questions without engaging in deliberation, negotiation or persuasion. For example, if there is a doubt about, say, what is an acceptable conduct of a villager, the rule of recognition can direct the parties to the authoritative list of rules, say the past pronouncements of the village elders, the practice of other villages and so on, to determine the answer.

According to Hart, through the rules of change static character of customary norms can be overcome. As the rules of change confer power on a person or institution to create, modify or extinguish rules and may also specify the procedures to be used in exercising that power. And behaviour can be shifted in the desired direction through the exercise of legal authority empowered by the rule of change. The rule of adjudication, on the other hand, solves the problem of inefficiency. This rule confers the power to determine whether a rule has been satisfied or violated on a particular occasion, and specifies the method to be followed in adjudication.

The test of validity for a legal system is usually contained in one rule only. This rule of validity specifies properties the possession of which by a rule renders it binding in that system. Any norm that bears one of the marks of authority set out in the rule of recognition is a law of that system and officials are required to recognise it when carrying out their official duties. This rule also specifies orders of precedence among sources of law. In the United States, for example, the rule of recognition mandates that federal law trumps state law, federal constitutional law trumps federal statutory law and constitutional amendments made in accordance with Article V trump earlier constitutional provisions. It is a rule about the validity of other rules ie, the “primary” rules.

The rule of recognition is also a social rule. It is “social” in two different senses. First, the rule of recognition exists and has the content because of certain social facts. In particular, its existence and content is determined by the fact that members of a group use it to evaluate the validity of norms and the behaviour. Second, it is social because it sets out standard for a group of people. These people do not accept this rule “for their part only,” but rather treat the standard it sets out as the official way in which the law is to be determined in their community. It is ultimate in the sense that it does not exist in virtue of any other rule. Its existence is secured simply because of its acceptance and practice. By contrast, the primary rules are not ultimate because they exist in virtue of the rule of recognition. The rule of recognition validates, but is not itself validated.

For example, the rule of recognition in Britain is: “The Queen in Parliament has the power to create British law,” and by accepting it Britain’s rule of recognition unintentionally stands changed into its rule of change. Beware that the rule of recognition can validate certain types of customs, and since customs need not be created through the exercise of legal authority, the rule that validates them cannot be power-conferring. It raises concern: why does the rule of recognition is presented as a test when in reality it is a duty imposing norm? The answer is the nature of law which consists of norms for followers of legal system, imposes a duty on officials to apply the rules in their official capacities. In this way, the rule of recognition sets out the criteria of legal validity and hence, picks out the set of legal rules for a particular legal system. This happens as the law of a particular system consists of set of rules which are applied by the officials of the system as they are under a duty to apply these rules. Thus the rule of recognition sets out the content of duty to apply the rules of legal system. In this regard, Hart wrote: “There are, therefore, two minimum conditions necessary and sufficient for the existence of a legal system. On the one hand, those rules of behaviour which are valid according to the system’s ultimate criteria of validity must be generally obeyed, and, on the other hand, its rules of recognition specifying the criteria of legal validity and its rules of change and adjudication must be effectively accepted as common public standards of official behaviour by its officials. One resolution of these conflicting statements is that the rule of recognition is directed at courts, while the rules of change and adjudication are directed at the official parties who are empowered by these rules.1”

The rule of recognition resolves doubts and disagreements within a group about which primary rules to follow. It does this by picking out bindings of primary rules. The dexterity of the law is advanced by rule of change. The rule of change needs not wait for custom to evolve; rather, the designated offices have the power to deliberately alter the rules and thus enable the group to meet the urgent challenges that they face.

The efficiency of the law is promoted by the rule of adjudication. Disputes concerning the satisfaction or violation of a norm need not drag on and ripen into feuds in presence of rule of adjudication. Where a rule is reported to have been broken by an empowered adjudicator, the decision arising out of the rule of adjudication will settle the disagreement. The judgement should be authoritative and be supported by the social pressure for its implementation.

Legal sovereignty is created by asymmetrical habits of obedience as suggested by Austin, “One who is habitually obeyed by the bulk of the population is sovereign and he habitually obeys no one else.” Habits of obedience cannot create sovereignty accordingly to Hart, because habits are not “normative,” ie, they are incapable of generating rights or obligations all by themselves. Further habits cannot establish the “continuity” of legal authority.

Sovereignty is created by rules, not through habits according to Hart. Rules are normative: they are capable of conferring rights and imposing duties. The rules can account for the continuity of legal authority: The secondary rules in Hart’s view can be used to explain two properties shared by the modern legal systems: one, supremacy within its borders, two, independence from other systems. This concept of sovereignty does not imply that the sovereign is necessarily “above the law.2”

A legal system consisting of primary and secondary rules is distinguishable from other normative systems. The rules of corporations, for example, contain secondary rules as well. There are rules about who can change the rules of the corporation and which rules corporate officers are required to recognise when doing their job.3

As long as a rule bears the characteristics of legality set out in the rule of recognition, it exists and is legally valid. The concept of validity is used precisely in those contexts where the existence of rules does not depend on their being practised. Aside from establishing the validity of all the primary legal rules, the rule of recognition determines the membership, or content, of particular legal systems.4 According to Hart, a legal system which exists for a group A, and where just in case (1) the bulk of A obeys the primary rules and (2) officials of A accept the secondary rules of recognition, change and adjudication rules apply from the internal point of view and are followed in most cases. Here the first challenge concerns Hart’s claim that his account accurately characterises the content of a legal system, while the others relate to his claim that the rule of recognition is necessarily a social norm.5

Some commentators believe that Hart’s theory fails in many respects. The rule of recognition can characterise the content of a legal system only because it is one rule. Suppose, for example, the governor of a province issues an executive ruling.

Hart would say that this executive order is part of that province’s law because it is endorsed by the same rule of recognition that validates that province’s customary law. The unity of the law of that province, therefore, is secured by the unity of that province’s rule of recognition.

Hart does not explain what makes the rule of recognition a rule, as opposed to rules, of recognition.6 It seems, the said rule is able to establish the content of the law only by helping himself to the oneness of the rule of recognition.7

Judges are often under an obligation to apply laws of other jurisdictions in conflict of law cases.8 For example, in United States in contract litigation involving a New York plaintiff and New Jersey defendant, a New York court may be required to apply the New Jersey Statute of Frauds. On Hart’s treatment of the rule of recognition as a duty imposing rule, however, the New Jersey law would automatically become incorporated into New York’s law because judges would be under a legal obligation to apply it in certain cases.9

The secondary rules of a legal system exist if, but only if, they are accepted and practised from the internal point of view. The rule of recognition, for example, needs not be morally acceptable – it needs only be followed.

Hart’s account conflates a “social” with a “normative” rule.10 When we assert the existence of a social rule, we are simply indicating that most members of the group accept the rule. In merely recognising the practice, we are not thereby endorsing it. A group, for example, may seriously frown on inter-racial marriage and we may describe this racist practice by stating that in this group there is a social rule against Segregation.11

A “normative” rule, on the other hand, necessarily provides reasons for action. In order to account for the sovereign’s right to rule and the judicial duty to apply the law, Dworkin concluded that it is not enough to postulate the existence of social rules. The mere fact that judges treat certain rules as valid is not dispositive as to whether they ought to do so. Only normative rules are normative – only they can confer rights and impose duties. This second challenge to Hart’s doctrine, therefore, does not deny that there are secondary legal rules which impose duties and confer powers. Rather, it asserts that these rules are not social in nature. For if secondary rules are to have normative power, they cannot exist simply because they are accepted from the internal point of view and followed in most instances. On this view, secondary rules can confer rights and impose duties only when they are also grounded in moral facts, namely, those that create a moral duty for judges to apply certain rules and confer moral legitimacy on persons to change and apply those rules.12

Talking about the rule of recognition leads us to a dispute about the criteria of legal validity. If legal authorities do not in general agree about the correct way to interpret a constitutional provision, then there can be no correct way to do so. It follows that taking a position on such interpretive matters amounts to political chicanery, confused thinking or both. The criteria of legal validity are determined not by social facts alone, but by moral facts as well. Those officials disagree about the moral value of law and/or its relation to practice.13

We can imagine another type of uncertainty, one which does not concern private behaviour, but rather the legitimacy of public officials to settle first-order uncertainty. Call this “second-order” uncertainty. In Hart’s pre-legal communities, it is highly likely that second-order doubts will be as common as first-order ones. Just as group members can be uncertain as to whether a person is permitted more than one share, they can have doubts and disagreements about sharing of rights. Some members of the community, for example, some might object to uneven division of sharing of power and may assert that the will of the majority be respected on these sorts of issues; the aristocracy, on the other hand, might be inclined to trust such power to one of their own. Still others might think that award of share is an individual and inviolable right that even democratic majorities cannot eliminate. But there is another reason, often overlooked by legal theorists, for why issues of institutional design are bound to lead to normative uncertainty. Political questions about who should have power and how they should exercise it are intimately connected to questions of trust.

Legal systems are constituted by delegation of awesome powers to individuals – power that can be, and often has been, exploited to devastating effect. Conferring authority on those of ill-will not only endangers mundane political objectives but more importantly, and ominously, provides a fertile environment in which tyranny and anarchy can grow. The need to discriminate between the trustworthy and the untrustworthy, therefore, will always be a central and pressing concern of legal design.14

Recognising the prevalence of second-order, as well as first order, uncertainty is imperative, for the resolution of the latter as it cannot be resolved without the resolution of the former. In other words, public officials can resolve the doubts of, and disagreements between, private parties only if members of the group are not uncertain about the identity of the public officials.

The rule of recognition is a unitary norm that imposes a duty on officials to apply certain rules that bear certain characteristics. It follows that, on such an account, the law of a particular system consists of all the norms that this rule obligates officials to apply.

The first problem with this view is its under- and over-inclusiveness: some rules which are part of the same legal system are not so considered by Hart’s account and, conversely, some of the rules which are considered part of the same legal system are not in fact part of it. A law is a member of a legal system just in case there is a set of plans that a group share and stipulate that a group shares a set of plans if and only if the plans of the set were designed, at least in part, for them so that they may engage in a joint activity, and the members of the group accept the parts of the plans that apply to them and are committed not to interfere with the parts that apply to others. Widespread disagreements about the content of the rule of recognition are inconsistent with the consensus which supposedly generates its content.15

So, does the rule of recognition exist? Well, it all depends on what the rule of recognition is. If we take the rule of recognition in a very minimal manner – as the test of legal validity for a particular legal system – then everyone agrees that such a rule exists. Even “Law as Integrity” is a rule of recognition in this sense. On the other hand, if we construe the rule of recognition as Hart did – as a duty – imposing convention among officials – then it must be concluded that the rule of recognition does not exist.16

(The writer is an advocate and is currently working as an associate with Azim-ud-Din Law Associates Karachi. To see author’s other areas of interest visit Zafars Blog on International Studies http://blogoninternationalstudy.blogspot.com)

1. H.L.A. Hart, A Concept of Law, Oxford University Press, (1997).

2. In a constitutional regime, the secondary rules will typically limit the supreme and limit the independent powers of the sovereign.

3. For Hart, the rule of recognition secures the existence of all primary rules.

4. The rule of recognition secures the existence of legal systems.

5. These objections do not challenge Hart’s general thesis that the law rests on secondary rules. Rather, they seek to undercut his specific claims about the nature of these rules.

6. See John Finnis and Joseph Raz’s objections.

7. Hart’s theory is not only under-inclusive, but over-inclusive as well. For it can easily be shown that Hart’s rule of recognition transforms the law into a vortex that sucks the rules of other normative system into its voracious maw.

8. Joseph Raz.

9. But this is clearly wrong: as Ronald Dworkin pointed out, it is unclear how Hart’s theory dodges the same bullet.

10. Dworkin, Laws Empire, Sweet & Maxwell London, (1988).

11. Id.

12. the most obvious examples of disagreements over the criteria of legal validity are disputes about interpretive methodology.

13. In his recounting, Hart dwells on the doubts and disagreements that arise in pre-legal communities concerning the obligations of private parties. Call this “first-order” uncertainty. According to Hart, the rule of recognition is needed to resolve these sorts of doubts and disagreements, which it accomplishes by picking out the primary rules that the group is obligated to follow.

14. Hart neglected to recognise an important type of normative uncertainty that would take hold in a pre-legal community. In groups not linked by bonds of kinship, belief or value, doubts an d disagreements would not only arise between the members as to what is to be done but also as to who has the authority to resolve these sorts of questions.

15. If legal participants are neither hopelessly confused about legal practice nor opportunistic liars, the criteria of legal validity cannot be determined by judicial agreement about those very criteria.

16. If we take the rule of recognition of a legal system to be constituted by the norm-creating and applying provisions of its shared plan, then it does exist.