One of the principal lessons of ‘The concept of law’ is that legal systems are not only comprised of rules, but founded on them as well. In contrast to Austin who had insisted that the sovereign makes all of the rules, Hart argued instead that the rules make the sovereign. In this essay, I would like to explain Hart’s theory and how the social rules are related to the legal system and rules of recognition. This essay has five parts. In the first part, I try to illustrate the practice theory of rules (social rules). And I will explain the three differences between social rules and habits.
In part two, I will try to explain the internal aspect and how the social rules are related to the legal system and briefly introduce both the primary rules and secondary rules as well. In part three, I attempt to detail the rule of recognition and the relationship between social practices and rule of recognition.
In part four, I address one objection about Hart’s theory, which is about under-inclusive and over-inclusive of Hart’s theory. And I give an example to support my objection. In the final part, I will make a conclusion about my paper and give a briefly review to both the concepts and my opinions in this paper. Part One: Social rules (practice theory of rules)
For Hart, then, law is a matter of social rules. And there is certainly one point of similarity between social rules and habits. But in explaining a social rule, Hart first distinguishes a rule from a habit. In other words, he is concerned to explain when a habit becomes a rule. For example, members of a particular community engage in the habit of shaking hands as a form of greeting. Nobody told them to do so.
Perhaps one person did it to another and the practice caught on. At that point, the practice was only a habit, and not yet a rule. It becomes a rule when it has acquired a certain degree of importance that the members feel it to be an obligation to shake hands upon meeting and consider people rude who refuse to do it. Prior to that point, it was merely a practice of custom that most people complied with; in short, merely a habit.
There was no feeling or sense of obligation that they had to shake hands upon meeting people. From this view, Hart distinguishes a habit from a rule in three important ways. Firstly, habits are made possible by the fact that various patterns of behavior can, in fact, converge. Consider, for example, a pattern of regular customers to watch a movie on Friday nights.
Actually, this practice is not quite ‘rule-governed’ follows from the fact that any failure by the people to go to the theatre at Friday evening would result in no serious criticism or some pressure to conform. In fact, these kinds of people are probably not even aware of their regular behavior or routine.
To them, going to watch the movie at Friday to engage in some terrific relaxation is simply something they ‘happen to do’. In other words, it is converge of behavior. Secondly, where there are such rules, not only is such criticism in fact made but deviation from the standard is generally accepted as a good reason for making it. Criticism deviation is regarded as legitimate or justified in this sense, as are demands for compliance with the standard when a deviation is threatened.
The third differences between social rules and habits are internal aspect of rules. It is this internal aspect of rules that distinguishes merely convergent, habitual behavior from genuinely rule-guided conduct. These rules are distinguishable from mere ‘habit’ by the fact that a significant portion of observers view these rules from an internal perspective. Furthermore, Hart argues that social rules possess both an internal and external aspect.
A social rule has an internal aspect, in addition to the external aspect which it shares with a social habit and which consists in the regular uniform behavior which an observer could record. All in all, a rule exists just in case those three difference from habit, and people accept and follow the rules. In other words, a rule exists just in case there is a standard behavior such that the group’s attitudes and behavior satisfy.
Part Two: Internal aspect and points ascribes to legal system As part two mentioned the internal aspect. Having developed this concept of the internal aspect of rules, Hart ascribes to it its place in a legal system. Law is a union of primary and secondary rules; primary rules are duty and obligation created, and secondary rules are directions to officials authorizing them to change, recognize or adjudicate upon the primary rules. In other words, secondary rule is the power-conferring. Hart argues that it is a sufficient condition that the citizenry, which is subject to the primary rules, need only take an external viewpoint towards primary rules.
They may not view the rules as standards; they may not consider themselves obligated to obey them; and they may not even make a moral commitment to follow the law. Examples of primary rules include the general standards of criminal, tort, contract and administrative law. However, all these are irrelevant with regard to the existence of a legal system. All that is needed is the existence of the external viewpoint. It means view at what the other do.
So that the detached observer can look upon the behavior of the citizenry, and on that basis alone, find the legal system to be in good, practical working order. It is at the level of secondary rules that the internal aspect comes in. Secondary rules are ‘rules about rules’, which explain the primary rules and tell you how to run the rules. They regular how other rules are made, changed, applied and enforced. They establish official machinery for the recognition and enforcement of primary rules. Hart argues that it is a necessary condition for the existence of the legal system that the officials directed to identify and apply the primary rules through the means of secondary rules, take the internal viewpoint towards those.
This is so because it is the only way in which reasons or justifications of enforcing, creating or changing obligations can be given, a concept which is parasitic upon Hart’s idea of the social rule. Meanwhile, according to Hart’s theory, there are several types of secondary rules such as ‘rules of recognition’, ‘rules of change’, ‘rules of adjudications’, and ‘rules of sanction’ as well.
Part Three:The rule of recognition and social practice The rule of recognition can counter the uncertainty of traditional law. Law is only valid once it goes through rule of recognition. For example, in Malaysia, the law will become valid when it goes through the first reading until the executive signing. In Cuba, the law will get validity after pronouncement from the dictator that recognized the law. According to Hart’s theory, the rule of recognition is more like a social practice than it is like a black letter rule of any sort. He also calls this fundamental rule.
To follow and engage in the social practice is to conform relatively to an existing, ongoing pattern or template as a matter of appropriate conduct. Officials simply follow the social practice: They presuppose it internally in what they actually do when they make and enforce given laws. Generally speaking, 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 it does because, and only because, of certain social facts. In particular, its existence and content is determined by the fact that members of a group take the internal point of view towards a standard of conduct and use it to evaluate the validity of norms and the behavior that falls within their purview. Second, the rule of recognition is social in the sense that it sets out a group-wide standard.
Members of this group 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. Hart said that the rule of recognition is the ultimate rule. Because the rule of recognition is a social rule, it is capable of being an ultimate rule. 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. It can explain and control the primary rules.
Hart also pointed out that secondary rules are necessary to distinguish legal systems from other collections of norms, such as games, religions, corporations, moralities and so on. But the primary rules of the legal system, by contrast, are not ultimate because they just tell you what you are and what to do. So they exist in virtue of the rule of recognition. The rule of recognition validates, but is not itself validated. Part four: Objections
Having set out Hart’s doctrine of the rule of recognition, I have one important objection about Hart’s theory, which is that Hart’s theory lack of either under or over inclusive.
According to Hart’s theory, the content of a legal system is established by that system’s rule of recognition. For instance, Hong Kong SAR statute of bribery is part of Hong Kong SAR law, and not, say, Mainland china law, because the statute is valid according to the Hong Kong SAR, and not the Mainland china( although Hong Kong is a part of china), rule of recognition.
It is important to see that on Hart’s account the rule of recognition can characterize the content of a legal system only because it is one rule. Suppose, I take the example form the paper of Stanford law school: the governor of New York issues an executive ruling. Hart would say that that this executive order is part of New York law because it is endorsed by the same rule of recognition that validates the statute of Frauds.
The unity of New York law, therefore, is secured by the unity of New York’s rule of recognition. As John Finnis and Joseph Raz have objected, however, Hart does not explain what makes the rule of recognition a rule, as opposed to rules, of recognition. In my opinion, Hart’s theory is not only under inclusive, but over inclusive as well.
Conclusion Thus I have elucidated some essential parts of Hart’s theory. Law is a system made possible by the existence of two types of social rule: those that are duty-imposing (primary rules), and those that are power-conferring (secondary rules). And law is a matter of social rules. It is similar in nature to morality.
Actually, there are two necessary and jointly sufficient conditions for the existence of any social rule: 1. Members of the group for which the rule is intended must generally abide by the rule. 2. A significant portion of those members must come to view the rule form an internal perspective.
Furthermore, in the central case it requires a union of these ‘primary’ and ‘secondary’ rules. This conception is both the heart of a legal system and a most powerful tool of analysis. And I illustrated the rule of recognition and the relationship between social practice and rule of recognition. In addition, I make one objection about Hart theory and used two examples to briefly explain the objection as well. Thank you so much!! Jin Zhen Bo
Summer Course Section C philosophy of law