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H.L.

A Hart was considered as one of the great legal positivist in the theory of analytical
postivisit jurisprudence. Analytical jurisprudence has made a systematic analysis of legal
concept by different thinkers during different period. Among the positivist thinkers Hart
is one of them who very efficiently criticizes his earlier positivist theory with an explicit
motive to describe the legal system of a society. In his book “THE CONCEPT OF LAW”,
published in 1961, He has made an attempt to describe the development of legal
system from primitive to evolved legal system. According to him “ law is best
understood as the union of primary and secondary rules., the primary rules are the rules
of obligation whereas the secondary rules are dependent upon the primary rules which
allow the creation, extinction and alteration of primary rules.” [2] The difference between
the two types of rules are primary rules impose duties,concern actions involving physical
movements or changes whereas the secondary rules confer powers and they provide for
operations which lead not merely to physical movement or changes but to the creation
or variations of duties or obligations. [3] At the beginning hart has suggested to imagine
a primitive society where there are only primary rules of obligation which are all
customary in nature that means there is a society without any legislature coutrs or
officials of any kind.these primary rules are existed between a group of people who
under a obligation to obey it and practise I among its memebers. But, such kind of rule
would not make a common standard which can be a basis of a system. For instance, if
there is any conflict of opinion between two individual it is hard to determine which one
is accurate and prevail in that society and what would be the procedure to settle this
conflict. This is the first defect in the primary rules which termed as uncertainty. As hart
correctlypointed out that “ in the first place the rules by which the group lives will not
form a system, but will simply be a set of standards, without any identifying or common
mark, except ofcourse that they are the rules which a particular group of human beings
accept.” [4]

Hart also mention another two defects in the primary rules. One is the static nature of
the rule as he observed that in a society there will be no meaqns of deliberately
adapting the rules to a changing circumstances either by eliminating old rules or
introducing a new one. [5] The third defect was the inefficiency in the priamary rules. So
hart realises that primary rules are not at all ultimate in a particular legal system, there is
a neccessity of such kind of element which can remove thios defects of the primary rules
as well as act as the supplement of those primary rules to convert the regime of primary
rules in a legal system.

According to hart. “The remedy for each of he three main defectsi n the simplest form
of social structure consist in supplementing the primary rules of obligation with
secondary rules which are rules of different kind.” [6] Legal system has faced the
difficulty due to the uncertainty of the primary rules, so hart has made a solution to this
problem by providing a new secondary rule which has a binding effect named as ‘ Rule
of Recognition’. This rule can determine which rules are binding by referring to this
rule about rule which hart called the rule of recognition. The rule of recognition
removes the uncertainty of primary rules and it distinguish other rules into two
categories, one is rules of the group which are supported by the social pressure that the
group exerts and another is the rule of the other than the group. [7] The second kind of
rules are not supported by the organized social pressure rather than informal social
pressure. On the other hand the first category of rule has been supported by the
organized social pressure. In these way the rule of recognition evolves and it enlightens
a new dimension in the pre existing legal system to a new legal system.

Hart has pointed out that every legal system has contain one and only one rule which
sets out the test of validity of that system. That means it is a rule about the validity of
the other rule i.e the primary rules. In any legal system rule of recognition defines the
common identifying test for legal validity of that system. A particular rule can be treated
as valid and fit in any legal system when only it has fulfill all the necessary criteria
provided by the rule of recognition. [8] so, the rule of recognition is a rule which points
out how to recognize a particular rule as a legal rule.

The rule of recognition thus performs the following functions :-

To establish a test for valid law in an applicable legal system.

To confer validity to everything else in the applicable legal system.

To unify all the laws in the applicable legal system.

According to hart, rule of recognition is the foundation of a legal system and it is


accepted by both private persons and authoritative criteria for identifying the primary
rules of obligations. These include reference to authoritative text, legislative enactments,
customary practice and general declaration of specified persons or to past judicial
pronouncements in particular cases. [9] In a modern legal system where there are too
many sources of law the rule of recognition became complex, so it includes
constitutional enactments and precedents. So the sources of law comes under the
purview of rule of recognition as it has power to give validity a particular rule derived
from that sources. In most of the legal system, the rule of recognition is not stated but it
is shown in such a manner so that a particular rules are identified either by the courts or
by other officials and “ when a court reaches to that conclusion on the footing that a
particular rule has correctly pointed out and termed as law it has obtain a special
authoritative status and validity.” [10]
Rule of recognition specifies the ultimate criteria of validity in the legal system and this
rule has been practiced by the officials who have taken an “internal point of view” of this
rule of recognition so that they can use it as a standard for evaluating and maintaining
the regularity of behavior of the people. The expression ‘internal point of view’ has been
simplified by Hart by saying that it is the law that find not only in the lips of the judges
but of ordinary men living under a system when they identify a given rule of the
system.it is naturally used by one who accepts the rule of recognition and without
stating the fact of its acceptance apply the rule recognizing some particular rule of the
system to be valid. [11] Rule of recognition is an ultimate rule which secures the
existence of the primary rules and it is ultimate because when there is no legally limited
legislature there exist a ultimate rule of recognition which provides a set of criteria of
validity to the other rules where one of the rule is supreme.