6.

HART’S CONCEPT OF THE FOUNDATION OF A LEGAL SYSTEM (CHAPTER 6,

Concept of Law)

6.6.1 Rule of Recognition and Legal Validity

(i) In Hart’s viewpoint, the social situation in which the majority of a social
group habitually obey orders backed by threats of a sovereign person
or persons who themselves obey no one, is incapable of accounting
for the salient features of a modern municipal legal system.

(ii) A more complex situation where a secondary rule of recognition is

used for identification of primary rules of obligation deserves to be
called the foundation of a legal system. A rule of recognition is a
secondary power-conferring rule that conclusively determines what
law is in a particular society.

(iii) Hart states that in a modern legal system, the rule of recognition is
correspondingly more complex. The criteria for identifying the law are
multiple and include a written constitution, enactment by a legislature
and judicial precedents or customary practice. In most cases, provision
is made for possible conflict by ranking these criteria in order of relative
subordination and primacy. Thus for example, case law is subordinate
to statute.

(iv) Hart further adds that that for most part, the rule of recognition is not
stated but its existence shown in the way particular rules are identified,
either by courts or other officials or private persons or their advisers. It is
a social fact observable in the official practices of their community.

(v) The acceptance of the often unstated rule of recognition is a testimony

of the internal point of view that officials especially have towards the
rule as an authoritative standard to ascertain the validity of law.
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(vi) According to Hart, the statement: ‘It is the law that’ – is an internal
statement because it manifests the internal point of view and is
naturally used by one who accepting the rule of recognition and
without stating the fact that he applies it. On the other hand, the
statement: ‘In England they recognize as law…. whatever the Queen in
Parliament enacts to be law’ is an external statement because it is the
natural language of an external observer of the system who without
himself accepting it states the fact that others accept it. It is Hart’s
contention that legal validity is connected with the internal point of
view.

(vii) Hart states that one who makes an internal statement concerning the
validity of a particular rule of a system is said to presuppose the truth of
the external statement of fact that the system is generally efficacious.
Thus a judge’s statement that a rule is valid (although he presupposes
but does not state the efficacy of the system) is an internal statement
recognizing that the rule satisfied the tests for identifying what is to
count as law.

(ix) For Hart there is one ultimate rule of recognition by which validity of law
is to be determined. However, in that ultimate rule there could be a
number a criteria relating to the various sources of law such as custom,
case law and statute. For example, what the Queen in Parliament
enacts and what the judges decide and custom is law.

(x) These criteria are ranked in order of importance, the most superior
being a statute.
“Of the different criteria used one is supreme. Statute is the supreme
criterion because custom or case law can be overridden by statute.
Where these conflict with a statute the statute prevails. We may say
that a criterion of legal validity or source of law is supreme if rules
identified by reference to it are still recognized as rules of the system
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even if they conflict with other criteria whereas rules of the later criteria
are not recognized if they conflict with the former ‘What the Queen in
Parliament enacts is law’ is an example of a supreme criterion…
…But it is not the sole rule. The rule of recognition is the ultimate rule.
Statute is merely that part of the rule of recognition that dominates the
rest…”

(xi) Hart emphasizes that the notion of supreme criterion merely refers to a
relative place on the scale and does not import the notion of unlimited
legislative power though, he concedes that in simpler forms of legal
systems there may exist an illimitable legislature.

(xii) In England according to constitutional theory there are no limits upon

Parliament to legislate. Legislation can invalidate all other rules of law
stemming from other sources. Notwithstanding this, statute is only part
of the rule of recognition albeit a supreme one. In USA the legislature is
limited by a constitution. Even here, there is an ultimate rule of
recognition and a supreme criterion of validity exists in the
constitutional provisions. Austin by misinterpreting the supreme criterion
to be the rule of recognition itself considered all laws as emanating
from only one mode of origin. To Austin all laws are sovereign laws
explicitly or by tacit orders.

(xiii) “…What determines the validity of a rule of recognition? The legal

validity of the supreme criterion and all other rules of the system are
demonstrated by reference to it as well. How is the rule of recognition
itself validated?”

Hart says that it is pointless to pursue this enquiry since the rule of
recognition is itself a test of validity of other rules of the system. Hart
gives the analogy of the metre bar in Paris as the standard – its
existence is a fact and not an assumption.
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(ix) He states that statements of legal validity of particular rules of a legal

system whether by judges, lawyers or ordinary citizens are internal
statements of law expressing the point of view of those who accept the
rule of recognition of the system. Thus the statement that a rule of
obligation exists is no longer an external statement of fact but an
internal statement applying an accepted but unstated rule of
recognition whose existence is a matter of fact and not presupposition
as Kelsen claims.

6.6.2 New Questions

(i) Has Hart successfully managed to substitute the foundations of a legal
system based on Austin’s habit of obedience to a legally unlimited
sovereign, by the conception of an ultimate rule of recognition which
provides a system of rules with its criteria of legal validity? Why is law as
the union of primary and secondary rules essential to the concept of
law?

(ii) Hart states that the ultimate rule of recognition maybe regarded from 2
points of view: firstly, the external statement of fact that the rule exists in
the actual practice of the system, the other is the internal statement of
validity made by those who use it in identifying the law.

(iii) Hart concedes that the Austinian formula of habitual obedience may
apply to the private citizens but not officials (judges, legislators) since
they don’t habitually obey but only conform.

(iv) In the simple world of Rex I, we might well say that there was more than
mere habitual obedience by the bulk of the population but both they
and the officials of the system ‘accepted’ in the same explicit
conscious way a rule of recognition specifying Rex’s word as the
criterion for valid law. Hart concedes that this situation rarely exists in a
modern complex state. Officials have shared acceptance of the rule of
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recognition whereas ordinary citizens accept through acquiescence

with no critical reflective attitude.

(v) Hart states that there are two minimum conditions necessary and
sufficient for the existence of a legal system.
(a) Rules of behavior which are valid according to the system’s ultimate
criteria of validity must be generally obeyed; and
(b) Its rule of recognition specifying the criteria of legal validity, and its
rules of change and adjudication must be effectively accepted as
common public standards of behavior by its officials.

(vi) Hart says that the first condition is the only one which the private citizen
needs to satisfy free from any motive, though in a healthy society they
will accept these rules as common standards of behavior and
acknowledge an obligation to obey them or a more general
obligation of respecting the constitution. The second condition must be
satisfied by officials of the system who must regard these as common
standards of official behavior and appraise critically their own and
each other’s deviation as lapses.

(vii) In totality thus, the assertion that a legal system exists according to
Hart, is the obedience of primary rules by ordinary citizens and
acceptance by officials of secondary rules as critical common
standards of official behavior.
“…the fact that a legal system exists is therefore a Janus like statement
looking towards obedience by ordinary citizens and acceptance by
officials of secondary rules as critical common standards…”
“…In an extreme case, the internal point of view might be confined to
the official world. Only officials might accept and use the system’s
criteria of legal validity, society may be sheep like who might end up in
the slaughter house. But there is little reason for thinking that it could not
exist or for denying it the title of a legal system…”
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6.6.3 The Pathology of a Legal System

(i) Hart envisages that sometimes, the official sector maybe 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.

(ii) There may be a partial failure whenever from within the system we
make internal statement of law. Examples of such factors include
revolution or enemy occupation.

(iii) A converse situation is seen in the fascinating moments of transition

during which a new legal system emerges from the womb of the old
one – sometimes only after a Caesarean operation. For e.g. we may
have a colony with a local legislature, judiciary and executive. This
structure being set up by a statute of UK Parliament which retains full
legal competence to legislate for the colony (including amending or
repealing laws or earlier of its own statues). This legal system is
subordinate to a wider system characterized by a rule of recognition
that what the Queen in Parliament enacts is law for (inter alia) the
colony.

(iv) At the end of the period of development the ultimate rule of

recognition shifts. 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. Enactment of the local legislature is an ultimate criterion of
validity (rule of recognition).

(v) Hart states that there may be also other forms of partial failure of
normal conditions e.g. the unity among officials may partly break
down. It maybe that over a constitutional issue, there may be division in
the official world leading to a division in the judiciary.
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(vi) The split over the ultimate criteria to be used in identifying the law was
seen in South Africa in 1954 in the case of Harris v Donges (1952). In this
case, the legislature acted on a different view of its legal competence
from that taken by the courts and enacted measures which the courts
declared invalid. The legislature created a special appellate court to
hear appeals of judgments from ordinary courts. The court reversed the
judgment of the ordinary courts, in turn the ordinary courts declared
the legislature creating the special courts invalid and their judgments a
legal nullity.

(vii) Hart states that had the process not stopped it would have been an
endless oscillation between two views. Although the normal conditions
of official and of judicial harmony would have been suspended, a
great mass of legal operations not binding on this issue went on as
before. Till the population became divided and ‘law and order’ broke
down, the original legal system would not have ceased to exist.

6.6.4 Validity of A Legal System

(i) In summary, Hart states that for the legal system to exist the citizen must
obey the primary rules and officials accept the secondary rules as
authoritative standards of behavior, deviations from which invite self-
criticism as well as criticism from other officials. The validity of a legal
system is dependent on the efficacy of its rules.
“So long as 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 a legal system exists. When laws are not
obeyed by citizens, the legal system will cease to exist even though
officials still accept the secondary rules…”

(ii) Hart concedes that the precise moment of dissolution of the legal
system is however not amenable to determination. (Compare with
Kelsen’s theory)