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Published: Fri, 02 Feb 2018
Why defining law has become problematic
What Relationship Is There, If Any, Between Hart’s ‘Secondary Rule Of Recognition’ And Kelsen’s ‘Basic Norm’?
The British philosopher Richard Wollheim has pointed out that the reason why defining law has become problematic is due to the fact that it sought to achieve different purposes. He states that jurists have not only been able to not clearly distinguish the definition of law but also a criterion for the validity of law and a much more general method for the criterion of validity of any legal system. Now, whether a law is valid or not can be appropriately tested against the constitution of that country but trying to find out whether there is an existence of a formal general criterion that can be tested in any legal system is a difficult proposition because the “empirical characteristics” varies from one legal system to another. This is exactly what Bentham and Austin in the nineteenth century and Kelsen and Hart in the twentieth century have tried to find out with varying degrees of success. A serious limitation of this method is that one cannot say with certainty that a particular criteria which has been selected can be applicable to the actual content of other legal systems, since (as said earlier) these have empirical characteristics not necessarily capable of being confined within the particular straight jacket it is desired to impose upon them.
Kelsen wrote extensively during the 20th century. He believed in the normativity of law. The law, according to Kelsen, is a system of norms. Norms are ‘ought’ statements, prescribing certain modes of conduct. It expresses not what it is, or must be, but what to be, given certain conditions. Its existence can only mean its validity, and this refers to its connection with a system of norms of which it forms a part. In other words, they are regulations setting forth how persons are to behave. It cannot be proved to exist on facts, but simply to be derivable from other norms, and is, therefore valid in that sense. In practice, as norms are concerned with human conduct, there must be some ultimate norm on which all the other norms rest.
Unlike moral norms, according to Kelsen, legal norms are always created by acts of will. Such an act can only create law if it is in accord with a ‘higher’ legal norm that authorizes its creation in that way. And the ‘higher’ legal norm, in turn, is valid only if it has been created in accordance with yet another, even ‘higher’ legal norm that authorizes its enactment. Ultimately, Kelsen argued, one must reach a point where the authorizing norm is no longer the product of an act of will, but is simply presupposed, and this is, what Kelsen called, the Basic Norm. He also said that in tracing back such a ‘chain of validity’ one would reach a point where “a ‘first’ historical constitution is the basic authorizing norm of the rest of the legal system, and the Basic Norm is the presupposition of the validity of that first constitution.”
So far as the legal system is concerned this basic norm must be extra-legal, since it does not rest upon another legal norm. But Kelsen also point out that the choice of the basic norm is not arbitrary and he suggests that it must be selected by the legal scientist on the principle of efficacy, i.e. to say that the legal order as a whole must rest on a hypothesis that is by and large efficient, in the sense that people conduct themselves in compliance with it.
On the other hand, Hart’s rule of recognition also determines the criteria which govern the validity of the rules of the system. There are, according to Hart, two minimum conditions necessary and sufficient for the existence of a legal system. These are “those rules of behaviour which are valid according to the system’s ultimate criteria of validity must be generally obeyed, and its rules 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 obeyed by private citizens and they may obey for any reason. The second condition must also be satisfied by the officials of the system and they must regard the secondary rules as general principles of official behaviour and assess decisively their own and each other’s deviations. They must accept the rule of recognition and observe them from, what Hart calls, ‘the internal point of view.’
Hart’s main idea is that there are two rules of recognition – primary and secondary. According to his primary rule of recognition, he says that in a society there are certain rules which tell people to do or not to do certain things. Thus they lay down rights as well as duties. These primary rules are to do with physical matters. The primary rules include those which prescribe or prohibit certain forms of action and those which enable individuals to realize their wishes with the help of specified procedures creating rights and duties enforceable at law, e.g. by making a contract or will. Secondary rules, on the other hand, presume the existence of primary rules. They provide ways of ascertaining what the law is, of introducing new laws or changing or abolishing old ones and they define the procedure to be followed in applying the laws. In other words, secondary rules are the rules conferring or defining legislative and judicial powers.
Hart has presented the notion of law as a union of two kinds of rules: one enjoining conduct, the other conferring powers. Such a conception must concern itself first with the question of why legal rules are binding, so Hart proceeds to examine the matter of legal obligation. He then discusses the need for combination of two kinds of rules in a working legal system that serves the need of a society that has advanced beyond its most primitive stages. Finally, he addresses the matter of legal validity and the idea of a rule of recognition is developed to provide a criterion for distinguishing false claims from true ones.
Hart maintains that in this combination of the two types of law rather than in the notion of a coercive order is to be found ‘the key to the science of jurisprudence’. In other words, in a legal system, in addition to the primary rules there are also secondary rules by the help of which it is possible to decide whether something is a primary rule or not and how it is to be interpreted and adjudicated upon. The notion of a sovereign legislator in the sense of a legislator unrestricted by law is not required. What is needed is a ‘rule of recognition’ that is a rule providing the criteria for identifying the primary rules. This rule of recognition is ultimate in the sense that there is no further rule to assess its own validity.
Thus, after reading and comparing both Kelsen and Hart, it gives one an idea that there are similarities as well as differences between Kelsen’s basic norm and Hart’s rule of recognition.
The rule of recognition has some resemblance to Kelsen’s Basic Norm. The main difference is that while Kelsen thinks the validity of his basic norm has to be assumed or postulated, Hart considers that his rule of recognition can be ascertained by reference to actual practice.
Hart admits that the rules of recognition, though not overtly expressed, can show the way in which particular rules are identified by the courts and other officials. Whether a primary rule is ‘valid’ really amounts to saying no more than that it passes all the tests provided by the appropriate rule of recognition.
Like Kelsen, Hart appears to recognize that such rules may themselves be formed on a hierarchical pattern and that, therefore, the validity of one or more of these rules may depend upon some higher rule of recognition. It is here that we see some traces of Kelsen’s argument.
But the question as to the status of any ultimate rule since the only point is whether it is accepted by those who generate the system. There is therefore no assumption of validity but its acceptance is simply factual.
The rule does provide criteria of validity within the system and therefore it is worth calling such a rule, law: there is however also a case for calling it fact insofar as it depends for its existence upon actual acceptance. This fact of acceptance may be looked upon from two points of view, namely, from the point of view of the external statement of fact that the rule exists in the actual practice of the system, and also from the internal statements of validity which may be made by those in an official capacity who actually use to identify law.
Hart also points out that, although the notions of validity and efficacy may be closely related in a legal system, they are by no means identical. He says that if there is so little efficacy in a whole system of law, then it would be really pointless to attempt to assess what actual rights and duties might exist thereunder or the validity of particular rules.
As to the question whether every system of law must be referable to some basic norm, Hart rejects Kelsen’s view that this is an essential assumption of all legal systems. All that it means, where a system lacks a basic norm, is that there will then be no way of indicating the validity of individual rules by indication to some final rule of the system.
There are also interesting similarities and differences between Kelsen’s basic norm and Hart’s rule of recognition. Both the rule of recognition and the basic norm rest on the idea of chains of normative validity; a particular legal norm is only valid because it has been authorised by a more general or more basic legal norms. The chain of validity must end somewhere; with a foundational norm that carries no further justification, other than its acceptance or it’s having been presupposed. It is again important to note the difference of approach and methodology here: hart’s theory is meant as an analytical description of actual practices, while Kelsen sought a theory purified even of sociological observation.
Brian H Bix, Jurisprudence: Theory & Context (5th Edition, Sweet & Maxwell, London 2009)
Hans Kelsen, Introduction To the Problems Of Legal Theory (The Clarendon Press, Oxford, 1996)
HLA Hart, The Concept of Law (The Clarendon Press, Oxford, 1990)
Jurisprudence & Legal Theory: Commentary & Materials (James Penner et al ed., OUP, London, 2005)
Lloyd’s Introduction To Jurisprudence (M.D.A. Freeman ed., 7th Edition, Sweet & Maxwell, London 2001)
Philosophy of Law, (Joel Feinberg and Hyman Gross ed., Wadsworth Publishing Co., California 1991)
Roger Cotterrell, The Politics of Jurisprudence: A critical Introduction to Legal Philosophy, (Butterworths, London 1989)
Wayne Morrison, Jurisprudence from the Greeks to Post Modernism (Lawman India Pvt. Ltd., Delhi, 1997)
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