1. HART: CONCEPT OF LAW HART: CONCEPT OF LAW Legal positivism is the dominant tradition in the jurisprudence of modernity.

The theory given by HLA Hart is widely recognised as providing the high point of legal positivism. According to him, legality is something which developed in evolutionary fashion through a growing complex system of different kinds of rules, not something politically imposed on an otherwise chaotic social order to structure it. Hart has seen the law as the shared acceptance of rules, not something forced upon us. Hart presented the benign and functionalist face of liberal legality, transforming the early positivist theme of an external coercion enforcing the law and making the subject (citizens are the subject of a jurisprudence) feel obliged by threat of violence to remain lawful- the threat of sanctions- into an image of the legal subjects normative obligation to abide by legal rules. Hart domesticated and subdued the violence that had always been a part of the institutional imagination of liberal legality. He offers an institutional imagination which both describes and justifies key elements of the period of organised modernity. A period of social history which is both near and yet far from our present location; his writing assumes the efficiency and progressive nature of social institutions, it reflects a period of time where social order and peace appeared guaranteed by modern institutions and where those institutions looked as if they were designed to enable us to achieve our personal and social desires; a period where law seemed to offer us possibilities of enablement rather than threatened coercion. For Hart the legal system is a system of social rules. The rules are social in two senses: first, in that they regulate the conduct of members of societies; secondly, in that they derive from human social practices. They are not the only social rules. There are for example, rules of morality. Like rules of morality, laws are concerned with obligations: they make certain conduct obligatory. But unlike rule of morality they have a systemic quality which hinges on the interrelationship of two types of rules, called by Hart primary rules and secondary rules. Hart objected to Austins command theory on the grounds that it failed to encompass the variety of laws. Harts theory distinguishes between primary duty-imposing rules and secondary power conferring rules. According to Hart there are three kinds of secondary rules. Rules of adjudication confer competence on officials to pass judgment in cases of alleged wrongs and also to enforce the law. Rules of change regulate the process of change by conferring the power to enact legislation in accordance with specified procedures. Rule of recognition determine the criteria which govern the validity of all other rules of the system. This constitutes the skeleton of the legal system. But a legal system can only be said to exist if it is effectively in force. There are, according to Hart, two minimum conditions necessary and sufficient for the existence of a legal system. These are that, those rules of behaviour which are valid according to the systems ultimate criteria of validity must be generally obeyed, and its rule of recognition specifying 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. The first condition has to be satisfied by private citizens and they may obey for any reason. The second condition must be satisfied by officials of the system and they must regard the secondary rules as common standards of official behaviour and appraise critically their own and each others deviations and lapses. They must accept these rules and observe them from, what Hart calls, the internal point of view. . 2. HART: PRIMARY & SECONDARY RULES HART: PRIMARY & SECONDARY RULES Q: Plainly, there will be a very close connection between the rules of change and the rules of recognition.. Explain the connections between the secondary rules Hart describes in this passage, and discuss how significant they are, if at all. [2009B] Q: The Rule of Recognition cannot be understood on its own. Its function is intimately related to the workings of the rules of change and adjudication. Discuss. [2008A]

Q: It has been pointed out that the rule of recognition, which is a secondary rule identifying the primary rules of obligation, has also to identify other secondary rules. Does this seeming inelegance point to a fatal flaw in Harts Concept? [2007A] Q: Harts rule of recognition reflects his understanding of the law as a social and political institution: the first thing any jurisdictions rule of recognition tells us is who is entitled to make law. Discuss. [2007B] Q: What function is the rule of recognition supposed to perform? To what extent, if any, could the rule of recognition be subsumed under the rules of adjudication? [2006A] [According to Hart, law is the union of primary and secondary rules. The operation of this union reveals the essential or fundamental character of law; it distinguishes the pre-legal from the legal, the acts of simple coercion masquerading as law from real law. In a modern legal system, the situation would normally be that citizens generally obey the primary rules and officials running the legal system recognise the secondary rules from an internal point of view. They critically reflect as to their own conduct and the conduct of other officials as to the performance of their roles and their relationship to their task.] {In the most crucial chapter of The Concept of Law: chapter 5, Hart sets up his own model of law. According to him, law includes the idea of obligation and that idea implies the existence of strongly supported social rules. But law also includes the idea of permissions, or power-conferring rules, and Hart thinks that a society which had obligations, or duty-imposing rules alone (what he calls the primary rules) would be pre-legal, because such a society would defective. To cure these defects he proposes for his concept the introduction of three power-conferring type rules (which he calls secondary rules).} [In general, the primary rules are rules of obligation, or duty-imposing rules, and the secondary rules are powerconferring rules. In Harts theory, it is necessary to have a combination of the primary and secondary rules. He saysa society that lives by primary rules alone, would suffer certain sorts of defects.] Defects & remedies: First, there would be uncertainty as to what the rules were, or the proper scope of the rules once they were identified. In order to remedy this defect, he says that we must analyse law so as to include a rule or rules of recognition that would identify with certainty what the rules of obligation are. Secondly, he says, in a simple regime of only primary rules of obligation, there would be another defect. This would be that the community would remain static, because the only way the primary rules of obligation could change would be by decay or by a very slow process of growth. Furthermore, there would be no means by which individuals could release other people, or themselves, from the rules of obligation. This defect would be cure, he says, by the introduction of secondary rules of change, which would enable legislators to repeal or enact laws, or private citizens to create rights and obligations in the form of wills, contracts and so on. Thirdly, he says, a simple regime of only primary rules would be an inefficient system, because there would be no means by which disputes could be settled. In order to cure this defect, he says that we must introduce secondary rules of adjudication, which would confer power on certain people to adjudicate and would also define the procedures in accordance with which adjudication would take place. {Thus, in a legal system it is important to have a union of the primary and secondary rules. In this union, Hart claims to have found the key to the science of jurisprudence.} Inter-connection between secondary rules: Hart says, the functions of the secondary rules depend upon each other. It is no use for an authority to create new rules if these are not recognised, so the rule of change and the rule of recognition are intimately linked. Similarly, there is no point laying down or recognising rules if they are never going to be applied, so rules of adjudication that empower authorities to apply the rules are generally required as well. As Hart points out, it is difficult to see how adjudication on the basis of rules can be accomplished in the absence of a rule of recognition, however rudimentary, that identifies the applicable rules. Furthermore, in most systems, those who have the power and the duty to recognise the rules are also the ones with the power and duty to apply them (i.e. judges). [Examples required]

[This, then, is Harts characterisation of the central set of elements that make up his answer to the question What is law?. It describes a modern municipal legal system, with its rules of obligation, and various other rules relating to the identification of the rules of the system, the system of law-making and repeal by both private citizens and by a legislature, and the system of courts.] [Describe the way in which the rules together can be seen as an account of authority which contrasts with Austins notion of sovereignty.] 3. HART: RULE OF RECOGNITION HART2: RULE OF RECOGNITION Q: What is the rule of recognition, and what are Finniss and Dworkins criticisms of Harts theory of the rule of recognition? Are these criticisms sound? [2009A] Q: It has been pointed out that the rule of recognition, which is a secondary rule identifying the primary rules of obligation, has also to identify other secondary rules. Does this seeming inelegance point to a fatal flaw in Harts Concept? [2007A] The rule of recognition: According to Hart, the law on a particular topic in a particular legal system is that which it is according to the rule of recognition. The rule of recognition is defined (by Hart) as specifying- some feature or features possession of which by a suggested rule is taken as a conclusive affirmative indication that it is a rule of the group to be supported by the social pressure it exerts. A rule of recognition, therefore, is simply a rule whose function is to identify whether or not another rule is part of the legal system. The issue whether there are several or only one rule of recognition is irrelevant. One can loosely refer to several rules, such as, in UK, what Parliament enacts is law, or what the common law courts decide is law. If there are several rules of recognition, then there may be instances where those rules can conflict with each other. Hart solves this problem by the idea of supreme criteria. The supreme criterion is part of the rule of recognition and is the part which dominates over the rest. So the supreme criterion in the UK legal system is Parliamentary enactment, and if the common law, or local or general custom, conflicts with Parliamentary enactment, that enactment prevails. The rule of recognition, in essence, can neither be valid nor invalid. Rather the existence of this ultimate rule is a matter of fact, that is, in fact, it is accepted as the test of validity by the officials or courts or other bodies, but the question whether this test of validity is a valid one does not arise, as it arises for Kelsens grundnorm. The major function of the rule of recognition is to cure the defect of uncertainty. It tells us what the law is. However, alongside identifying the primary rules, it also identifies the other secondary rules as well. Criticisms: There are a number of criticisms of Harts theory of the rule of recognition. Of those, the criticisms of Finnis and Dworkin are the most crucial two. Finniss criticism is that Hart leaves insufficiently specified the sort of attitude towards the rule of recognition that the officials have. He says that there must be a central set of elements that constitute an officials acceptance of the rule of recognition. Finniss own view, which is a complex variant of natural law, is that the central set of elements constituting an officials acceptance of a rule of recognition, is a moral acceptance of the rule. In this way, Finnis claims to have found a conceptual, logical link between validity and morality. There is a strong connection between Finniss thesis and Dworkins thesis that a proper legal theory must explain the moral force of law and that a proper interpretation of law requires us to make the best moral sense of our legal practices. [Does the ROR cure uncertainty in the law? Of course not. The ROR tells judges that they must apply the rules found in statutes, cases, etc but not the rules found in the Bible. That doesnt mean there is no uncertainty about what the rules in statutes and cases are, or how they should be applied, for all kinds of reasons, from vagueness in the

language of statutory rules to the inability to foresee how a rule will work in all possible situations to which it may apply. The ROR would have to be miraculous to cure those sorts of uncertainty.] Dworkin criticises the rule of recognition because it leaves judicial reasoning outside the realm of law. Since legal reasoning in hard cases is controversial, he says, the rule of recognition cannot adequately identify the law to be applied. The point of the rule of recognition, which we identify as a matter of empirical fact is to cure the defect of uncertainty in a society of primary rules alone. It follows that any rule purporting to be a rule of law, can be identified with certainty by applying the test of identification of the rule of recognition. Thus, that any that cannot be identified with certainty is not a rule of law at all. And so all hard cases, in other words all those cases in which it is controversial what the law is, do not concern law at all. To take an example, if a statutory provision prohibits vehicles from a park, a purported rule of law that is relied on, say, by a prosecutor, that roller-skates are prohibited from the park, is not a rule of law at all, just because it is controversial. Dworkin says three things follow from this: First, the judges have to act as legislator to make new law for the future on whether roller-skates are prohibited or not, and this is contrary to what we suppose the judicial role to be (judges are not elected to legislate). Second, the judge characteristically then applies that law to the defendant, and so this would be retrospective legislation, which is unfair and not how we think judges act. Third, judges mu st continually be mis-described what they are doing, because they talk as if they were finding the law, rather than legislating. So, concludes Dworkin, there must be something wrong with the positivistic picture because it is useless when it comes to giving an account of legal argument. And since legal argument clearly plays a central role in all matters, positivism fails. Thus, Dworkin argues that there is no descriptive sense of what a rule means independent of making an interpretation of that rule. Clear meanings are themselves only clear because of some interpretation. Dworkin further points out the importance of interpretation by giving the example of R v Register of Births, ex parte Smith. In that case, Smiths (a mentally disordered person) application for his birth certificate was refused by the authority. Despite the fact that a statutory provision clearly gives him a right to have his birth certificate, the court said that the authority was right to do so as Smith was planning to kill his mother. Here the normal reading of the statutory provision/rule describes that Smith was entitled to have his birth certificate. But, with the proper interpretation of the rule, which takes into account several other factors (e.g. it is difficult to suppose that Parliament intended to place Smiths mother at the risk; Parliament also declares that the aiding, abetting, procuring and counselling of criminal offences to be illegal where handling the birth certificate to Smith would result in one or more of the above) describes the rules as that Smith indeed was not entitled to have the certificate. Hart affirms that his theory was intended to be both descriptive and general. By descriptive he says that he intended it to be morally neutral and with no justificatory aims. He says that this is a radically different enterprise from that envisaged by Dworkin which, he says, is in part evaluative and justificatory and addressed to a particular legal culture. Then he says that because of these differences he and Dworkin are not in conflict, it is just simply, so it seems, that they are each writing with different aims in mind. Hart was of the opinion that there is a distinction between the core meaning of a rule- the uncontroversial clear meaning- and the penumbra in which there is a degree of uncertainty about what the law requires. Hart thinks that there are cases where judges exercise their judicial discretion by acting as judicial law-makers and he does not think that this poses a great threat to democracy. He further says, the delegation of limited legislative powers to the executive is a familiar feature of modern democracies and such delegation to the judiciary seems a no greater menace to democracy. This, however, is a disappointing remark as it draws insufficient attention to the very great differences of role and function between the executive and the judiciary. The executive must govern the community as a whole but we do not think that judges are like that at all. We think that they should concern themselves with the merits of the dispute relating to the respective rights and duties of the parties before them. Hart also takes Dworkin to task for saying that it is a defect of legal positivism that it supposes that judicial discretion in unregulated cases is retrospective in effect (which Hart must concede happens if he allows for judicial lawmaking). He simply says that if there were law there- in the cases, or the arguments, or whatever- as Dworkin supposes, it wouldnt be retrospective, true, but a decision made by the judge would be just as surprising to the defendant as where the law is made by the judge (the positivist position). Consider the following defence of Dworkin. Surely, if we are to choose between two theories of adjudication, we must choose the one that says that, characteristically, the judge is punishing (or awarding compensation or

whatever) for acts which at the time that they were done were against or within the law. The defendant who is surprised by a decision that is the result of retrospective legislation is worse off in this sense than the defendant who is surprised at a decision about the law existing at the time he did the act. It is simple matter of the rule of law: no one should be punished, or whatever, unless there is a law which prohibited (or whatever) the act at the time that it was done. 4. CRITICISM OF COMMAND THEORY HART: CRITICISM OF COMMAND THEORY See: 1st few pages from Wayne Morrison [or other relevant textbooks] 5. KELSEN: PURE THEORY KELSEN Q: For most of his life, Kelsen described the grundnorm or basic norm as a presupposition which made the understanding of law possible, but in his later years referred to it instead as a fiction. What is the grundnorm, and which of these terms better describes it and its place in Kelsens theory of law? [2009A] Q: What is Razs distinction between social normativity and justified normativity and how, if at all, does it illuminate Kelsens theory of law? [2009B] Q: Austins and Kelsens theories of law are much closer than many commentators realise. Discuss. [2008A] Q: Most critics present Kelsens jurisprudence as a hierarchical relationship of norms. However, equally important and often neglected is Kelsens argument that law is a self-authorising and dynamic system of norm creation. Discuss. [2008B] Q: Command theories of law are fundamentally unsound, as the failure of both Austins and Kelsens theories show. Discuss. [2007B] Q: To what extent, if at all, Kelsens pure theory useful in understanding contemporary law? [2006A] Q: What does Kelsen mean when he says that the basic norm (grundnorm) of a legal system is to be presupposed? [2005B] Q: The primary norm stipulates the sanctions (Kelsen). Critically examine the statement. [2005A] Pure theory of law: Kelsen, in his pure theory of law, is solely concerned with legally valid reasons for actions. He seeks to reconstruct rationally the way in which legal authority is transmitted in the legal system. According to him, The pure theory of law is a theory of positive law. It endeavours to answer the question what is law? but not the question what law ought to be? Thus, the pure theory of law is to be descriptive of law. However, when we describe the law we are describing a set of ought-propositions, although not moral oughts. It should be noted here, even though the description of law is a set of ought-propositions, it is something different from saying what the law ought to be, that is, is something different from prescribing the content of law. Kelsen describes all ought-propositions as norms. For him, norm is in essence action directing, and should not be thought only as imposing duty, but also as including the idea of a permission or power. Kelsen distinguishes between legal, moral and other norms. Moral norms are merely, in his view, propositions describing our subjective preferences for behaviour and he is critical of natural lawyers who think that morality is something objective. Kelsen is in fact thinks that all moral judgments are essentially irrational because they are no more than expressions of our feelings or intuitions.

Kelsen develops the concept that law is essentially the idea of sanctions and officials. As a result he gives us a very specific description of the legal norm. This is that a legal norm is an ought-proposition directed (either in a form of a duty or a permission or power) at the officials to apply a sanction in certain circumstances. According to Kelsen, a citizen does not have a norm directed at him at all. If a citizen does something which gives rise to the circumstances under which an official ought (or may) apply a sanction, then, that citizen has not done anything contrary to that norm, just because it is directed at the officials. The citizen has instead committed a delict. Kelsen say that if we take a law such as one shall not steal then everything contained in the meaning of that law is contained in the meaning of if somebody steals, he shall be punished. It is thus not necessary to refer the first norm one shall not steal at all. However, Kelsen nevertheless says that it greatly facilitates matters if we allow ourselves to assume the existence of the first norm which, he emphasises, is not a genuine legal norm. He says that he prefers to express the first norm rather as the secondary norm, and the second norm, the genuine legal norm, as the primary norm. Thus, he says, only officials can genuinely break the law, because when we are speaking of the citizen we are only talking of his committing a delict, which is fulfilling the condition for the application of a sanction by an official. So, in one of the most famous statements of jurisprudence in the twentieth century, he saysLaw is the primary norm, which stipulates the sanction, and this norm is not contradicted by the delict of the subject, which, on the contrary, is the specific condition of the sanction. An immediate objection to Kelsens characterisation of a legal norm would be that we do not ordinarily think of laws as directed to the officials of a system. For example, we think of criminal law as imposing duties upon citizens to do, or forbear from doing, certain kinds of things. Kelsens answer to this is simply that he is bringing to light something in the legal phenomena of which we are not normally aware, namely that law is essentially a form of social control that proceed by way of either imposing duties or conferring powers upon officials to apply sanctions. He is, he claims, describing the law as it really is, in the same way as a scientist describes, or attempts to describe, the reality of matter. Question of validity Kelsen does not think that law is just a simple set of legal norms. He has a specific and well-known theory of legal validity. He, as he claims, does not distinguish between the existence of norms and their validity: By validity we mean the specific existence of norms. To say that a norm is valid, is to say that we assume its existence. Thus a rules having the character of law and its being valid are one and the same thing. He says at one point: The usual saying that an unconstitutional statute is invalid (void) is a meaningless statement, since an invalid statute is no statute at all. A non-valid norm is a non-existing norm, is legally a nonentity. This view of Kelsen is based on his theory that only norms can validate other norms. The question is then, how do norms validate other norms? What Kelsen had in mind is a root-of-title theory of validity whereby one norm is validated by a more general norm which is validated by an even general norm. Going up the chain of validity, or hierarchy, of law in order to find its root of title, we must come to a finishing point, says Kelsen. If we were to continue the process, then we would never be able to establish the validity of any norm, because we would have to go to infinity. But since we can in fact establish the validity of legal norms, then we must be able to get back to some ultimate norm that confers validity upon all other norms. Kelsen calls this norm the Grundnorm, or the basic norm. To summarise so far: Kelsens theory of validity is a hierarchical or root-of-title type theory. Laws receive their validity from higher, more general laws, until a point is reached at which we stop. Here we come across the basic norm which imparts validity to the whole legal order. At this point of discussion five important points must be noted about the basic norm. First, the basic norm does not get its validity from other norms, in Kelsens view, it is simply assumed to be valid. In order to be able to talk about the validity at all, he says, we must assume the system to be valid by reference to such a norm, even though we might not consciously think of it. The basic norm is not created by any legal procedure such as the enactment of a statute, so it is different from all other norms in that respect. It has, instead, the function of making sense of what we mean when we talk of legal acts as being valid. And since its function is to make clear what we mean when we talk of valid laws, it does not have the political, or ethical, or professional function of telling us what legal norms are valid or not. Since its function is only to make clear what we mean it has, to use a philosophical term, only a cognitive or an epistemological function. Thus Kelsen says:

[The basic norm] is not- as a positive legal norm is- valid because it is created in a certain way by a legal act, butis valid because it is presupposed to be valid because without this presupposition no human act could be interpreted as a legal. act. And in The Pure Theory he says: Since the basic normis only the transcendental-logical condition of this normative interpretation, it does not perform an ethical-political but an epistemological function. This means that the grundnorm is an assumption that stands outside the law that shows us how we know what law is. The second about the basic norm point addresses the question- who assumes the basic norm to be valid? Kelsen sometimes says that it is anybody at all who talks of certain laws being valid, because it is the basic norm that gives meaning to such statements. Thus he says, The basic norm is only the necessary presupposition of any positivistic interpretation of the legal material. This statement follows from the quotations that the basic norm not itself being a positive law, but a transcendental-logical condition. But at times Kelsen talks of it being assumed by jurists: By formulating the basic norm..we merely make explicit what all jurists, usually unconsciously, assume when they consider positive law as a system of valid norms and not only as a complex of facts. At other times, he talks of it being assumed by what he calls the legal scientist. And it is clear that it is the task of legal scientists to describe the law. But two things are claimed: the first is that whoever interprets the laws as valid, and therefore, according to Kelsen, either consciously or unconsciously assumes a basic norm importing validity to all the laws, does not thereby accept that the laws are morally valid; and secondly, it is not necessary for anyone to assume the validity of a legal order: this is stated very clearly by Kelsen- An essential part of my theory of the basic norm is that it is not necessary to presuppose the basic norm. A third point is that it is a necessary condition of the presupposition or assumption of the basic norm that the system of norms to which it refers, and thereby validates, is effective over a particular territory or, as Kelsen says, is efficacious. This is not, of course to say that a single legal norm loses its validity because it is no longer effective; that is, that people are no longer acting in accordance with it. It is that in order for a legal norm to lose its validity, the whole legal order to which it belongs must lose its effectiveness. However, effectiveness is not a sufficient condition for the validity of a legal order, but it is a necessary condition. The fourth point is that it is axiomatic [obvious/self-evident] in Kelsens system that there is only one, unique, basic norm for each legal system, and it is this basic norm that gives the system its unity. The fifth and final point is that Kelsen claims that the basic norm ensures, in some unclear sense, that all the norms that it validates do not contradict each other, and he talks of the basic norm unifying and giving meaning to a set of non-contradictory norms. Kelsen says, when two norms contradict each other, one of the norms must be invalid, and he states the principle that the later law in time is valid, as the first one loses its validity. In the case where there are contradictory legal norms referred to in the same statute, so they are not separated in time, he says that it is a matter of interpretation of the statute only; so that either one of them is valid, or perhaps neither of them are. Criticisms: Sanction, delict (p98, templeman), and question of validity. 6. KELSEN: GRUNDNORM v RULE OF RECOGNITION KELSEN: GN v RR Q: Compare and contrast Kelsens grundnorm with Harts rule of recognition. [2007A, 2006B] There are superficial similarities between Kelsens grundnorm and Harts rule of recognition. However, these two concepts differ on certain aspects, especially on the issue of validity. This script will first try to define the concepts of grundnorm and rule of recognition. Then it will concentrate on the similarities and dissimilarities between these two. Kelsen offers a norm based theory of law where the grundnorm or basic norm is placed at the top of all other norms. In this norm based theory one norm is validated by a more general norm which is validated by an even

general norm. Going up the chain of validity, or hierarchy, of law in order to find its root of title, we must be able to get back to some ultimate norm that confers validity upon all other norms. Kelsen calls this norm the Grundnorm, or the basic norm. There are certain important points to be noted about the grundnorm. It does not get its validity from other norms, in Kelsens view, it is simply assumed to be valid. This triggers the question- who assumes the basic norm to be valid? Kelsen sometimes says that it is anybody at all who talks of certain laws being valid, because it is the basic norm that gives meaning to such statements. But at times Kelsen talks of it being assumed by jurists. While, at other times, he talks of it being assumed by what he calls the legal scientist. And it is clear that it is the task of legal scientists to describe the law. It is a necessary condition of the presupposition or assumption of the basic norms validity that the system of norms to which it refers, and thereby validates, is effective over a particular territory or, as Kelsen says, is efficacious. However, effectiveness is not a sufficient condition for the validity of a legal order, but it is a necessary condition. It is axiomatic in Kelsens system that there is only one, unique, basic norm for each legal system, and it is this basic norm that gives the system its unity. The final point is that Kelsen claims that the basic norm ensures, in some unclear sense, that all the norms that it validates do not contradict each other. According to Hart, legal system is the union of primary and secondary rules. In general, the primary rules are rules of obligation, or duty-imposing rules, and the secondary rules are power-conferring rules. There are three types of secondary rules- rule of recognition, rule of change and rule of adjudication. These three secondary rules cures certain defects of a legal system- rule of recognition cures the defect of uncertainty. In simple term, a rule of recognition is a rule whose function is to identify whether or not another rule is part of the legal system. It tells us what the law is. Which law is valid and which is invalid. If we contrast the grundnorm with the rule of recognition we will find some basic similarities. Both of these are the ultimate norm or rule of a particular legal system. They indentify all other laws of the system, the validity and invalidity of all other laws. On the other hand they do not rely on any other supreme rule for their validity. However, these two ultimate rules/norms differ widely in their question of validity. As has been seen above, the grundnorms validity comes from the presupposition. Kelsen explains the ultimate test of validity by saying that we, or possibly the legal scientist or jurist, presupposes the grundnorm to be valid. This leaves open the possibilities of not presupposing the validity, say, of a revolutionary regime. We can simply decide not to interpret the laws of the new revolutionary regime as legally valid, whether or not they are effective, and whether or not they have general support. This cannot happen with Hart. The rule of recognition, in Harts view, can neither be valid nor invalid, because it is the very test for assessing validity. The existence of the rule of recognition, Hart claims, is a matter of fact, that is, in fact, it is accepted as the test of validity by the officials or courts or other bodies, but the question whether this test of validity is a valid one does not arise. Harts point is that it is an odd question to ask whether, say, the rules of logic or the rules of chess were themselves valid, although we could ask ourselves other questions about them. For example, we could ask whether the rules of chess resulted in an interesting or difficult game, or whether the rules of logic were based on experience or intuition. Another difference is that, Hart says that he does not ascribe at all to Kelsens theory that the basic norm, as Kelsen says obscurely contains within it the principle of non-contradiction. In other words, Hart is not of the view, as Kelsen is, that the ultimate test of validity of a legal system is some way prevents laws of the system from conflicting with one another. One further distinction is that, Hart admits that there may be more than one rule of recognition operating in a particular legal system. Hart considers this as an irrelevant issue. He says, one can loosely refer to several rules, such as, in UK, what Parliament enacts is law, or what the common law courts decide is law. If there are several rules of recognition, then there may be instances where those rules can conflict with each other. Hart solves this problem by the idea of supreme criteria. The supreme criterion is part of the rule of recognition and is the part which dominates over the rest. So the supreme criterion in the UK legal system is Parliamentary enactment, and if the common law, or local or general custom, conflicts with Parliamentary enactment, that enactment prevails. On contrast, in Kelsens model, there can be only one grundnorm operating within a legal system. The basic norm has, in a sense, always the same content as the rule of recognition has. The notable difference is just that, Harts rule of recognition sets out the factual test of legal validity in any particular system, so it will differ in content from legal system to legal system.

7. KELSEN & AUSTIN KELSEN Q: Austin and Kelsens theory are much closer. Discuss. [2008A] Q: Command theories of law are fundamentally unsound, as the failure of both Austins and Kelsens theories show. Discuss. [2007B] There is a much criticism of Kelsens view of law as resting on sanctions. Kelsen assumes that law is not a voluntary order. The purpose of law is to make all people behave in a way in which they do not already behave. However, it does not seek to achieve this by convincing people that the content of law is right and binding on the conscience, as moral systems do. Instead law indicates some objective reason why people should act, rather than a subjective reason, such as the dictates of conscience or an independent desire to act in accordance with the law. Kelsen is not saying that people do obey law for this reason, but that the reason law gives is the threat of coercion. Thus, Lloyd is critical of Kelsen on the basis that he says that sanctions of some kind (or rewards) are a necessary feature of law. This seems wrong, since we do not consider that people obey law solely because of fear of sanctions. However, this is an evaluation of the effect of law, not the reasons that the law gives. Take, for example, a statute that says simply Thou shall not kill. Why should someone obey it, unless he agrees with it? The logic of the legislator is that persons should obey, even if they do not agree with it, so that some motive for obedience needs to be present. This is the result of the fact that people cannot be assumed to do what they ought to, which is the basic assumption of all law. It is useful to compare Kelsen and Austin. In general, Kelsens theory fares much better than Austins, simply because the notion of a norm is much more like that of a rule than that of a command. Because of this, we might consider whether the following two advances are made on the command theory. First, the idea of a norm, imposing duties or conferring powers upon officials replaces Austins crude idea of a predictable sanction with the psychological element of fear, which cannot distinguish the social phenomenon of being obliged with that of being under an obligation. Secondly, the source of validity of the norm rests, for Kelsen, not on the fact of its issuance from a habitually obeyed and determinate person or group of persons, but upon another norm...................... Spend the rest on describing the key parts of Austin & Kelsens theories, & interrelate where possible.