Dummies Guide to Hart The Foundations of a Legal System Chapter 6

Preamble/Some points to consider before launching into Chapter 6:

Harts analysis in Chapter 6 builds upon the social rules Hart discussed in Chapter 4 and
also the preliminary account of a legal system in Chapter 5. Also, the Rule of Recognition
is discussed in Chapter 7, and applied in the international law in Chapter 10.
I.

Rule of Recognition & Legal Validity (Pearlynn)

Rules of Recognition (ROR)

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The foundation of a legal system consists of the situation in which the majority of a
social group habitually obey the orders backed by threats of the sovereign person
or persons, who themselves blatantly obey no one (Hart Chapter 2). Hart feels that
this theory is incapable of accounting for some of the salient features of a modern
municipal legal system.
However, he recognises that these truths can only be clearly presented, and their
importance rightly assessed, in terms of the more complex social situation where
a secondary rule of recognition is accepted and used for the identification
of primary rules of obligation.
o This points to 3 important aspects of the ROR:
1. That it identifies primary rules of obligation
a. Recall Chapter 5, where Hart discusses a simplistic kind of society
where the only means of social control is by way of social
custom, which in Harts words are primary rules of obligation. Hart
notes that a disadvantage of such a system is that there is
uncertainty surrounding the precise scope of such rules. Hence,
Hart states that the Rule of Recognition can help to identify such
primary rules of obligation.
2. That it is a secondary rule
a. Hart argues that while primary rules are concerned with the
actions that individuals must or must not do, these secondary
rules are all concerned with the primary rules themselves.
3. That is it accepted and used.
a. Here, Hart is referring to his discussion of social rules in Chapter
4.
b. Austinian model of sovereignty that people have a habit of
obedience to a sovereign person. Hart feels that this fails to
explain the continuity of legislative authority, i.e. the transition
from one sovereign to another.
How does this play out in real life? We are given authoritative criteria for
identifying primary rules of obligation. E.g.
o Reference to an authoritative text
o Legislative enactment
o Customary practice
o General declaration of specified persons
o Past judicial decisions in particular cases
Modern legal systems in identifying law:
o Variety of sources of law
o Rule of recognition is thus more complex
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In the case of conflict, ranking the criteria in order of relative subordination

and primacy helps (e.g. Common law is subordinate to statute.)

Subordination and Derivation in ROR the Internal and External Points of View
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Distinguishing subordination from derivation

o Subordination E.g. Customary law and common law are subordinate to
statutes, because the statute can deprive customary law or common law of
their status. A good example is s 2(2) of the Evidence Act, which provides
that any common law that is inconsistent with the Evidence Act is repealed.
For the most part, this ROR is not explicitly stated, but shown in the way rules are
identified, e.g. by courts or other authorities or private persons and their advisers.
Then, when it comes to the ROR, there are 2 types of ROR:
1. Internal statement the use of unstated ROR in identifying rules of the legal
system.
a. Its the law that
b. Usually mentioned by judges, lawyers, persons under the legal system
c. People here personally accept the ROR as guiding rules
d. Internal view naturally used by people who accept the ROR and without
explicitly stating that the ROR is accepted, applies the ROR in
determining the validity of a rule.
e. Attitude of shared acceptance of rules
2. External statement an observer who records ab extra (Latin for from the
outside) the fact that a social group accepts such rules but does not himself
accept them.
a. Its the law that but in England, they recognise the law as whatever
the Queen enacts as law.
b. Natural language of an external observer who, without accepting its rule
of recognition, states the fact that others accept it.

Legal Validity in ROR

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Hart also argues that ROR explains the relationship between validity and efficacy.
To Hart, the confusion/doubt/uncertainty surrounding the concept of legal validity
is gone when you can distinguish between:
1. Personally accepted ROR in internal statements
2. External statement of fact that a ROR is accepted by others
What then is legal validity?
o Hart: To say that a given rule is valid is to recognise that it satisfies all the
criteria provided by the ROR and is therefore a rule of the legal system.
o Then, Hart explores the relationship between the validity of law and
the efficacy of law (i.e. how effective/successful the law is).
Efficacy that a law is obeyed more often than it is disobeyed
Ergo, Hart feels that there is no necessary connection between
validity and efficacy.
Hart feels that the only time that efficacy is related to validity is
when the legal system provides that: A rule is no longer a rule of the
legal system if it stops being efficacious.

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Furthermore Hart states: One who makes an internal statement concerning the
validity of a particular rule of a system may be said to presuppose the truth of
the external statement of fact that a system is generally efficacious.
o But, it is wrong to say otherwise: that validity means efficacy.
o Eureka moment: So, if you can understand the relationship between an
internal statement of fact that a legal system is generally valid and the
external statement of fact that a legal system is generally efficacious, then
we can understand the common theory of asserting the validity of a rule
to predict whether it would be enforced by the law (if you think about
it, we do it not just as law students in law school, but also general
laypersons in deciding how to live their lives).

Ultimate Rules, and the Supremacy Criterion in the ROR

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Also, the ROR provides the criteria by which the validity of other rules in the
system is assessed.
o The ROR is the ultimate rule, where are are several criteria ranked in order
of relative subordination and primacy
Amongst the criteria is supreme.
What is a supreme criterion?
o A criterion of legal validity or source of law is supreme if the rules identified
by reference to it are still recognised as rules of the system, even if they
conflict with the rules identified by reference to the supreme criterion.
E.g. Say there is an act titled XYZ Act. This Act not subject to any
constitutional limitation. This Act is also able to deprive all other rules
of law their status as law. Then, it is part of the ROR that in such a
system that enactment by XYZ Act is the supreme criterion of validity.
Such examples are apparent in UK according to its constitutional
theory, and even in the US where it does not have a constitution but it
contains an ultimate ROR, which provides a set of criteria for legal
validity, one of which is supreme.

Conclusions that may be made from Section I:

1. Function of an ROR: To provide criteria for identifying primary rules of a legal
system. It can provide more than one criterion for identifying rules of the system,
and each criterion is a source of law. If more than one criterion is used, it may
also provide rules for resolving conflicts between rules from different sources.
2. The ROR is a secondary rule it is a rule about primary rules of a legal system, and
is on a different level from those of primary rules
3. The ROR is a social rule accepted and used.
4. Rules identified by the criteria provided by ROR are valid rules.
5. The legal validity of a rule consists in it being a rule of the system in question.
6. Valid legal rules exist as they fulfill the criteria set out by the ROR. Individually,
legal rules need not be obeyed to exist as long as the bigger legal system in
which they belong to is generally efficacious.
7. The ROR is not itself a valid legal rule. Its existence is not dependent on satisfying
criteria in another rule but consists instead in its actual use and acceptance.
8. The ROR is the ultimate rule in a legal system. Why? Because it is the rule
containing the ultimate criteria of validity in a legal system.
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9. The ROR is a legal rule in the sense that it provides the ultimate criteria for the
identification of rules as legal rules, but it other respects, it is a matter of fact.
10.A legal system consists of a ROR and all of the rules identified by it (i.e. al the rules
trace their validity back to the ROR).
11.A legal system exists when the ROR is accepted and followed and the rules
identified by it are sufficiently effective.
12. Officials must follow and accept the ROR, whereas non-officials need only follow
the rules identified by the ROR.
II.
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III.
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New Questions (Nicola)

There are several difficulties.
1. The first of which is that of classification; for the rule that, in the last resort,
is used to identify the law escapes the conventional categories used for
describing a legal system, though these are often taken to be exhaustive.
2. A second set of questions arises out of the hidden complexity and
vagueness of the assertion that a legal system exists in a given country or
among a given social group.
Hart elaborates that there are different stages in law (e.g. from being
unborn, to being wholly independent.)
One way of understanding the differences in the stages of law is to go
back to the Austinian formulation general habit of obedience. Hart
criticises Austins formulation as he feels that is does not appreciate
the complexity that make up the minimum conditions for a legal
system.
Furthermore, the term obedience is to Hart, both misleading and too
generic. Obeying the law has different connotations for different
people. For the average man on the street, it may mean simply
abiding the law for fear of sanction. The average Joe obeys the law for
himself only. For judges, obeying the law has a much more significant
meaning, as their decisions affect the society at large.
Hart then concludes that there are 2 minimum conditions necessary and sufficient
for the existence of a legal system.
1. One that only private citizens need to satisfy. They may obey each for his
part only, and from any motive whatever; though in a healthy society they
will in fact accept these rules as common standards of behaviour and
acknowledge an obligation to obey them, or even trace this obligation to a
more general obligation to respect the constitution.
2. Must also be satisfied by officials of the system. They must regard these as
common standards of official behaviour and appraise critically these as
common standards of official behaviour and appraise critically their own and
each others deviations as lapses. Of course, it is also true that besides
these there will be many primary rules which apply to officials in their
merely personal capacity which they need only obey.
The Pathology of a Legal System (Ben Soh)
Hence, to see if these 2 minimum conditions are fulfilled, evidence needs to be
drawn out from different sectors of social life
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Existence of a legal system is Not susceptible of any exact determination. It

exists on a spectrum of degrees.
The most unproblematic one is where the rules are recognized as valid and
generally obeyed. This is the starting point where the existence of a legal system
can be established.
o This can be likened to a social contract among the individuals and
sectors within the system. It presupposes that the internal
statement of fact that the legal system exists.
The problem then, arises when we refer to the external statement of fact that a
legal system exists. This results from a breakdown in the presumption of the
internal statements of law.
o Revolution
o Enemy Occupation
o Anarchy
There is an interesting question that arises after such an interruption then. It could
be crudely put as: What happens to the legal system within the interruption?
o What was or was not law in the territory during the period of interruption?
o In the scenario where the court had existed in exile and came back after the
period of interruption, what is considered to be the new establishment of
internal law?
Birth of legal systems via colonies and imperialisation arising from the historical
context. This was how most legal systems in the various states are birthed, seeing
that majority of the world used to be centralized under the colonial powers.
o Example of Commonwealth states under the Westminster Parliament
Shifting of rule of recognition within the colony to become distinct
from the parent
Reluctance of Parent to let go of Colony
Of course, all of this is premised on the rule of recognition. Without the assumption
of such a rule, it is impossible to fathom the existence of the said legal systems.
o

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