According to Hart, a rule of recognition is the basis on which a society deems its laws to be valid. It is the reason for people in a society to act in accordance with primary and secondary rules set forth by the governing power. The primary justification for adherence to law is interpreted as the rule of recognition, for it defines obligation to such law as a standard for society. This foundation provides criteria for the validation of law and, though commonly understood within a society, can still be referenced as a justification.
Furthermore, a rule of recognition acts as the final justification in a series of statutes. When considering the U. S. legal and political system, the rule of recognition can be defined by how well a rule or law adheres to the U. S. Constitution. This in turn decides obligation of U. S. citizens to obey them. It may be argued that the Constitution itself is the rule of recognition, but as Hart states: “The existence of such a rule of recognition may take any of a huge variety of forms, simple or complex.
It may, as in the early law of many societies, be no more than that an authoritative list or text of the rules is to be found in a written document or carved on some public monument… In a developed legal system the rules of recognition are of course more complex; instead of identifying rules exclusively by reference to a text or list they do so by reference to some general characteristic possessed by the primary rules. ” (p. 45-46) The U. S. legal system is considered a developed one that consists of many levels of statutes, amendments, and precedence.
Simple reference to the Constitution cannot provide complete justification for the existence of a rule. Instead, one must take into account the rule’s relation to the Constitution, previous interpretations of related rules, and the possible conflict this rule may have with the previous rules. Observation of these relations is in actuality observation of the framework of the U. S. legal system. By determining how well a rule or law adheres to the Constitution and whether or not it conflicts with other primary rules, one can determine its validity and, therefore, determine citizens’ obligation to it.
The rule of recognition cannot be viewed as a law itself. It is the framework, or blueprint used to build a legal system and establish primary rules. Hart mentions, “In the day-to-day life of a legal system its rule of recognition is very seldom formulated as a rule…its existence is shown in the way in which particular rules are identified, either by courts or other officials or by private persons or their advisors. ” (p. 47) The rule of recognition is more of a standard that is generally accepted by a society around which laws can be built. Hart also compares the rule of recognition to scoring rules of a game.
The scoring rules are seldom stated, but are used to identify steps towards winning (Hart, p. 47). This is a good example for identifying a simple rule of recognition, but as stated before, the legal system of the U. S. is more complex. The Constitution must be taken into account when considering laws, but connections between laws must also be acknowledged. In this sense, when a person in the U. S. states that something is law, they are acknowledging that it adheres to the Constitution and acts in accordance with other primary laws, which also adhere to the Constitution.
Dispute over what constitutes the rule of recognition may occur in a society, but regardless of this dispute, Hart would argue that the rule of regulation is as it stands. There are rules and laws based upon the rule of recognition in a society. A person may disagree with the rule of recognition, but it does not change the fact that it is the reigning standard on which all other rules in the society are based. Hart uses the comparison of an external observer to show how a person can acknowledge the existence of a rule of recognition, yet not accept it themselves (p. 8).
The external observer’s rejection of the rule of recognition does not impact the validity of it. Similarly, the rejection of the rule of recognition by an individual or minority within a society does not take away its validity. This view is based on the presumption that the society in question has an established legal system which the majority of citizens abide by. If, for example, the majority of citizens in a society dispute the rule of recognition, it may be inclined to change.
Hart makes several statements indicating that he believes the rule of recognition should be based on a majority view and it is usually used to conform to that view. He goes on to say: “Rules are conceived and spoken of as imposing obligations when the general demand for conformity is insistent and the social pressure brought to bear upon those who deviate or threaten to deviate is great…[and the] rules supported by this serious pressure are thought important because they are believed to be necessary to the maintenance of social life or some prized feature of it…” (p. 3)
For this social pressure to be great enough, a view must be shared by a majority of the society. Therefore, Hart would most likely view disputes with the rule of recognition trivial, unless the dispute is shared with a significant amount of the society. Hart would believe that a rule of recognition that is not accepted by the majority of a society should be adjusted. It is the compilation of the prominent views pertaining to sustainability of life in a society that leads to the utilization of the rule of recognition.
This interpretation allows the rule of recognition to serve as the ultimate justification of a law. Hart uses a by-law of the Oxfordshire County Council as an example for the chain of legal reasoning. He describes how the by-law is valid “because it was made in exercise of the powers conferred, and in accordance with the procedure specified, by a statutory order made by the Minister of Health. ”(p. 48) The validity of the by-law is determined by the criteria of the statutory order.
The validity of each corresponding order can be questioned until it reaches the rule stating that what the Queen enacts in Parliament is law: “for we have reached a rule which, like the intermediate statutory order and statute, provides for criteria for the assessment of the validity of other rules, but it is also unlike them for there is no rule providing criteria for the assessment of its own legal validity. ” (Hart, p. 48) The rule regarding the Queen serves as the ultimate justification of the subsequent by-law and there should be no further inquiry.
When applying this to the U.S. , we can view a similar chain of legal reason, though the ultimate justification is based on the Constitution. The validity of a law can be called into question and in such a case one must assess its validity based on the criteria defined by the government. The three branches of government in the U. S. serve as the highest governing power, but even their statutes and orders can be called into question. It is then that the Constitution is referenced and this is where inquiry ends. The law is therefore assessed by its accordance with the governing statutes and the Constitution.
Due to the amendable nature of the U. S. legal system, it has been able to change and adjust to the ever-changing views of its people. Interpretations of the Constitution have grown and developed throughout the history of the U. S. , but the general rule of recognition has remained the same. Laws have been amended, appealed and added in accordance with the Constitution and precedence. If a rule of recognition truly reflects the best intentions for a society, it should remain unchanged and prevail throughout time. For this reason it can be said that the rule of recognition in the U. S. egal system has indeed been a proper one.
This is not to say though, that it is not subject to criticism by respected contemporary thinkers. As stated before, the rule of recognition in a society should have the best interest of the society in mind and reflect the majority view. The U. S. legal system has been criticized by its own citizens, but the rule of recognition has continued to appeal to the majority of the populous. The reason that a rule of recognition should be subject to the criticism of contemporary thinkers is that it might be found to no longer have the best interest of the society in mind.
It may be found that the views of the contemporary thinkers are in fact the views of the population. In such a case the rule of recognition should be reassessed and possibly changed. This situation would normally involve a revolution of some sort and an overthrow of the current legal system. Amendments and addition of laws can take place under one rule of recognition, but when the rule of recognition is to be changed, every subsequent order, statute, law, etc. will have to be changed to adhere to this new rule of recognition. The rule of recognition is not commonly called into question for this reason.
Also it is most often the case that the rule of recognition has proven to be sufficient through time. There is though, the possibility that the rule of recognition was never a proper one, or that it no longer appeals to the majority. The possibility of adjusting it according to contemporary thinkers is therefore not ruled out. Under the view that one should pursue truth, it seems to me that we are obligated to acknowledge a rule of recognition, but not to obey it. Our obedience is more obliged than obligated. As mentioned before, one’s dispute with the rule of regulation does not change the fact that it is still the rule of recognition.
By living in a society, such as the U. S. for example, a person is not obligated to follow the rule of recognition, but because of secondary laws the person is obliged to do so. A person will act in accordance with the rule of recognition for fear of punishment by law. In the gunman case for example (Hart, p. 42), the man is held at gunpoint and obliged to give up his money in fear of being shot. There was no prevailing rule for the betterment of society that obligated the man to give up his money. Similarly, if one disagrees with a rule of regulation and feels it is not valid, they are not obligated to follow it.
Obligation can be applied to the obedience to subsequent laws if the rule of recognition is accepted. If a person accepts the rule of recognition then they are obligated to follow the laws built upon it, if they adhere to the rule of recognition. In a sense, all people are merely obliged to follow the law of the land and are only obligated to follow primary rules if they accept the rule of recognition. This is in accordance with the previously stated views on the rule of recognition in this paper. The existence of this foundation is independent of individual dispute, but none are obligated to accept and follow it.