Rule of Recognition in a Modern Legal System

The concept of law according to Hart is a system of rules and the rules are the sole basis of a legal system. According to hart legal system is nothing but a combination of primary and secondary rules. Rule of recognition is a kind of secondary rule which validates a legal system and which is central, foundational and essential to every legal system. But this view of hart has been criticised by other legal positivist like joseph raz, ronald dworkin, john finnis and they have pointed out some lacuna in the hart’s doctrine as well as they raised some valid questions which is also necessary to be considered.

Hart describes rule of recognition as a foundation of a legal system. [1] In this paper my objective is to find out is the rule of recognition exist in a modern legal system? As well as can it be a foundation of a legal system? To fulfill this objective firstly I deal with the evolution of the rule of recognition and then Hart’s opinion regarding this and later on I briefly discuss the objections raised regarding Hart’s doctrine and finally I make a conclusion with a modification of that doctrine which may be appilicable in a modern legal system.

EVOLUTION OF RULE OF RECOGNITION:-

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.

Objections regarding rule of recognition:-

Unlike the other doctrines of legal philosophy, hart’s doctrine of rule of recognition is not totally acceptable. It also has been criticized by other eminent philosophers. Hart describes rule of recognition as a foundations of a legal system,and the content of a legal system is established by the rule of recognition. But some questions has automatically raised which are identified as lacuna in the hart;s doctrine and those questions are not answered by hart. Hart never tell what kind of the rule of recognition is? Or is it a duty imposing or power conferring rule? Or is it a rule practiced by judges or by all legal officials ? though the philosopher like dworkin, raz , finnis has opined some different view regarding hart’s doctrine. Hart suggests for identifying valid rules of law,and according to dworkin most of the rules of law are valid because some competent institution enacted them. Some were created by legislature in the form of statutory enactments and others are created by judges who formulate them to decide particular cases. here I like to point out three main criticisms in respect of the hart’s theory of rule of recognition. They are

Hart's theory was both under inclusive and over inclusive.

Hart cannot explain how social practices are capable of generating rules which confer powers and impose duties.

Hart cannot explain how disagreements about the criteria of legal validity which occur within actual legal system are possible. [12]

As far as the first objection is concerned, hart’s theory of rule of recognition is not flawless. According to hart every legal system specifies one and only one rule which specifies the content of that legal system. But many philosophers termed this theory both under inclusive and over inclusive. Regarding the under inclusiveness it is argued that though the rule of recognition characterize the content of legal system, but hart never disclose what makes the rule of recognition a rule. Joseph raz points out that most legal system have several rules of recognition of which no one is ultimate. For instance, if the governor of state issue an executive order, according to Hart’s doctrine such an order became applicable through out the state and it is a part of the law of the state as it is endorsed by the same rule of recognition which validates the uniformity of all the laws of that state. But the critics of hart’s theory point out that without establishing the uniformity in the state law it can not be said that a particular executive order became the part of that state law.

Hart theory is not only under inclusive but also over inclusive. According to hart, the law consist of all the norms that the legal participants under a duty to apply those norms in their official capacities. In his theory hart exclusively focused on judges. Rule of recognition being an duty imposing rule confer a legal obligation to the judges to apply the same law on different jurisdictions. But joseph raz criticize this view by saying that “ there is no reason to believe that valid norms belonging to one system cannot conflict”. Judges are often under an obligation to apply laws of other jurisdiction. So the hart’s doctrine of rule of recognition is under inclusive.

Secondly, the objection raised relating to the social practices which are capable of generating rules. According to hart’s doctrine Rules are central to the concept of law in at least two respects one pertaining to certain propositional or linguistic entities, the other to certain kinds of practice within a community. It treats certain norms as law only if they comply with ceratin criteria, and for that norm to comply with certain criteria . the notion of a rule of recognition fuses these two senses of rule being both a secondary rule within a legal system and an important social rule within legal community. the normativity of law cannot be taken account without make it clear that whether the rule of recognition is power conferring or duty imposing. As per hart’s point of view the rule of recognition exist in any system if they are accepted and practiced from the internal point of view. The rule of recognition need not to be accepted morally,it need to be followed. The rule of recognition is a social rule because it has the content of certain social facts as well as it is a particular kind of social practice. According to hart the social rule account captures the the nature of rules of recognition in a legal system. But in his theory he focused on the conventional social rules which include the rule of recognition also.. And it is also used to evaluate the validity of norms and behavior falls within their purview. But Ronald Dworkin rejects the social rules view for law or for social practices. It is that he insists that judges in reaching conclusions about legal validity must be operating from premises about what there is a moral duty to do. He is of opinion that the mere inclusion of social facts is not make a rule social. A rule can become social in nature when most of the members of the group accept that rule. On the other hand a normative rule provides reasons for action and only then can confer power and impose duties. So, according to dworkin, secondary rules are not social in nature,they are power conferring and duty imposing based on moral principles.

Thirdly, according to hart the secondary rules derive their content from consensus. But when there was lack of consensus over a matter then disagreements comes into picture. The best example for this the clash between originalism and constitutionalism while interpreting the constitution. For instance, the interpreting the provisions of U.S constitution the interpretative methodology was followed either according to original understanding or intention of the framers regarding any provision of the constitution or according to the understanding of that provision in the light of present cultural and social background. So the disagreement arises relating to the adoption of interpretation of the constitutional provision. Dworkin’s argument for disagrrement runs as follows:- there is not a rule of recognition that satisfies the condition that hart sets out for social rules. Since there is often a controversy over what criteria is necessary to be used in determing the criteria of legal validity. According to the social rule model a rule of recognition is a social rule and a social rule is one which the members of the community are agrred upon. Hart replies that all disagreements which dworkin takes a s evidence that there is no rule of recognition that is agreed upon are better interpreted as disagreements in application of an agreed upon rule. Dworkin has pointed out that whereas the rule of recognition can determine the dispute over criteria of legal validity. In this respect originalistic method is the best way to do this because the legal validity should be understood on the basis of the moral principles not on the basis of social facts. It is the drawback of hart’s doctrine that he cannot explain how disagreements about the criteria of legal validity which occur within the actual legal system are possible.

Now, inspite of these objections hart’s doctrine of rule of recognition has a credibility to apply in a modern legal system. In this part I am trying to give a solution that how these criticisms can be overcome and the rule of recognition has become the foundations of a modern legal system. I am suggesting to apply rule of recognition with proper planning and arrangement so that it can easily response to those objections as well as eradicate the drawbacks of a secondary rule. So the necessity is of a proper arrangement of application. In the above I am discussing three important objections which has rightly point out the lacunas in hart;s doctrine.

The first objection .i.e the under and over inclusiveness of hart’s theory, my suggession is to identify the rule of recognition in such a way that in any modern legal system where there is more than one legal authority and a conflict arise regarding the appilication of the rule of which authority prevail then the two rules should be a part of one system where they are created in accordance with the system’s constitutional order and their application should be regulated by such constitutional order. In the case of over inclusiveness if the two enacted rules to be part of the same system, they must be created from the power-conferring provision of that constituitionl order

Hart’s theory is unable to characterize accurately the content of the legal system. So the second objection raised relating to the normativity of the legal system. The normativity of the system can be taken into accout by making a proper arrangement so that the persons who are authorized by the legal institutions having moral legitimacy can act in accordance with the norms. It is not necessary that they have the power to confer rights and obligations, whereas the necessity is to look into any matter with a legal point of view. The legal point of view can hold the norms which is the basis of the system and the legal institutions may generate moral obligations to obey.

The third objection has point out the difficulty faced while interpreting the constitution. This can be overcome by making an institutional arrangements on the basis of reasons which the framers had possess. This arrangements is to be adopted by the system constituional designers to point out which interpretation would be fit to harmonise those reasons of the framers. The disagreement in interpretation arose due to lack of consensus. The content of the rule of recognition are inconsistent with the consensus. But generally a consensus might exist in every legal system. So the consensus is taken into account by applying proper interpretative methodology to cope with the problem faced by the system.

Conclusion :- hart’s contribution towards legal philosophy was very much considerable. He suggests that rule of recognition are linguistic entities that designate what the primary rules of the systems are. But in many occasions his theory denotes different meaning of the phrase rule of recognition which lead to confusions and objections. Though hart’s doctrine has been criticized in some aspects but the positive side of his doctrine is that none of the philosophers did not deny that the law is either founded on rules or that the notions of legal authority and obligations are rule based concept. No one is proposing to return to Austin. It is not difficult to imagine a normative system in which something like rule of recognition is crucial. But the nature of this rule of recognition, i.e. it sets out the criteria of validity is challenged by the critic.

So the requirement is to identify rule of recognition as an element of system constitutional structure with proper arrangements so that it can guide and organize the behavior of the legal officials through a specification which each has to play in that system. As well as it should be identified with all of the norm creating and applying part of this arrangenment.

Now. If the question arise regarding the existence of the rule of recognition in a modern legal system then it all depends on what the rule of recognition is? Generally, a well organized modern system operates with settled rules of explicit formal change and also with rule that frame and facilitate informal change with argumentation. So, if we consider rule of recognition only as attest for validity of a particular system then it exists. But if we consider it as a duty ipmposing convention among the officials then it doesnot exist as it cannot properly characterize the content of the legal system. And finally if we take the rule of recognition to be constituted by the norm creating and apply providsion of the system;s constitutional framework then I think it might exist.