HLA Hart and Law as a “Rule of Recognition”

This question will critically analyse H.L.A. Hart’s “rule of recognition” theory, and specifically examine whether the very existence of “theoretical disagreements” (among academics and judges) concerning the criteria to determine legal validity that take place within real legal systems — such as in American constitutional law — undermines this idea of an ultimate rule, unanimously accepted as legal gospel, that will determine the legitimacy of all other laws in said system. This will be done with analysis of Dworkin’s opposing “interpretive theory” of law.

Using the most literal interpretation of the assertion, this essay will only discuss the Incoherence of disagreement about the ultimate rule, as the assertion only states that “The prevalence of theoretical disagreements” disproves the rule of recognition. Therefore rather than attacking the rule of recognition from every angle, valid arguments against it such as social rules being normatively inert and its poor inclusiveness will not be delved into. Hart presents his theory as universal, one that will govern all successful legal systems, but for the sake of streamlined argument, this essay will be written in reference only to the common law systems of the US and UK.

Law as a “Rule of Recognition” – Theory of Legal Positivism by HLA Hart

Hart makes a distinction between laws that impose duties (“primary rules”), and laws that confer powers (“secondary rules”). He viewed the older John Austin concept of law, namely that “law is the will of the sovereign, backed by sanctions”, as inadequate, on the basis that people obey law for various reasons (besides fear of sanctions) such as social custom, societal pressure, habit etc. He states that a unified theory of law accommodating both the primary and the secondary rules lies in the “internal point of view”, i.e., the acceptance of the laws by the general populace gives the primary and secondary rules their credence . From this comes the rule of recognition.

Hart introduced the rule of recognition in Chapter V of The Concept of Law. He used the analogy of a primitive community without legal system, and explores the various social & organisational problems that would arise and how these issues would be resolved with the introduction of basic rules and rule structures (including the rule of recognition). Hart postulated that in a pre-legal society, all rules would be customary ones. As such, a rule exists if and only if, the majority of the societies members accept and practice it. In hart’s view, this would suffice for a small group/colony, with all it’s members close-knit with common beliefs and goals. However, as societies scale in size and become more heterogeneous, uncertainty and discord will grow and this system would become less effective. In Hart’s opinion, the fundamental rules of legal systems fix these pre-legal, customary law issues, as they address the haphazard uncertainty by creating a master rule (and test) which determines which rules are valid laws. This is the rule of recognition.

According to Hart, all legal systems contain one, and only one, rule which sets out a test to determine the validity of all laws and rule making bodies for that system. The test specifies whatever characteristics a rule must possess in order for it to be considered official & binding in that system. Any norm that satisfies the criteria set out in the rule of recognition is therefore a binding law of that system and state officials must recognise it when carrying out any official duties.

The rule of recognition also dictates levels of precedence among the systems sources of law. For example in the US legal system, the rule of recognition provides that state law is overridden by federal law, federal statute law is trumped by federal constitutional law, and any constitutional amendments that are made according to Article V of the constitution will supersede earlier constitutional provisions. Hart stated that tests such as Article V of the American constitution were “supreme” criteria of legal validity, as they specify legal rules that cannot be overruled by any other possible law in the system. In regards to the UK system, Hart specified that the British rule of recognition was “whatever the Queen in Parliament enacts is law.”

Therefore the rule of recognition has two conditions: (i) the rule itself must satisfy the supreme criterion of validity and by and large be effective; and (ii) the officials of the State must accept it as such . To elaborate, the “supreme criterion of validity” varies from State to State and would mean a Parliamentary enactment in the UK and the Constitution itself in the USA, such that the said rule, for it to be legal, must either be enacted by way of the prescribed procedure, the relevant “pedigree”, in the Parliament, or in case of a secondary legislation by any other governmental department authorised in that behalf. It must also be within the constitutional restraints (if there are any present in that jurisdiction), which can include moral values, such as respecting religions and the right to vote as laid down under the Sixteenth and Nineteenth Amendments to the United States Constitution .

Furthermore, the said rule must also generally be effective. The word “effective” over here means that the rule must generally be complied with/obeyed by the private persons of the State, observing from an “external point of view”, i.e., what is actually happening or the “ground reality”. Hart notes that while the efficacy of a rule should not determine its validity as a law, practice dictates that this must be made a necessary condition. He gives the example of a White Russian who might claim some property under some valid law of Tsarist Russia, but nevertheless, such a claim would not be enforced in modern day Russia. Also, it is not a necessary condition for a rule to be regarded as law that the private persons may also accept it as such (or what Hart calls, “the internal point of view”) but merely that they must “appear to obey it” (that is, possess an “external point of view” about the said rule/law) .

Law as an “exercise in interpretation” – The interpretative theory of law by Ronald Dworkin

Dworkin introduces his theory of legal interpretivism by saying that there exist three stages to ascertaining the law: (1) the pre-interpretive stage (where the text/content of the law is found. Dworkin says that this stage covers Hart’s whole theory of legal positivism as it “describes/recognizes” the law, and in this way, he states that Hart’s theory suffers from a “semantic sting” – focuses too much on the phraseology while ignoring how the law, in actual practice, operates . (2) the interpretive stage (where a “value” is ascribed to the law, even though different people may differ in their opinion of such a value. And (3) the post-interpretive stage (where based on the “best interpretation”, made in the last stage, the law is modified and/or understood to mean such and such.

Moving onwards, Dworkin has concerned himself the most with the second of the three stages of his theory of law, i.e., the interpretive stage. He elaborates further on it by saying that within this interpretive stage, the law in “hard cases” is the “best understanding/constructive interpretation by the judge of the political structure and legal doctrine of their community ” based on the “ideal of integrity”. This is a difficult concept and would require some elaboration to better understand it. As Guest notes, Dworkin has been “less explicit” about the meaning of the concept itself .

For Dworkin, every case is a “hard case” as every case requires the exercise of adjudication . He says that there is a right answer to every question , such that within a playing field (possible solutions to a hard case), there are boundaries (“surrounding belt of restrictions ”) that the judge must adhere to (rules he must abide by, principles he must uphold etc.). This is the exercise in “legal doctrine” which, according to Dworkin, always yields the “right answer” as firstly, the laws generally are not contradictory to each other and secondly, even if they are, one is always more persuasive than the other . To elaborate on this, Dworkin relies on Riggs v. Palmer , where the judges upheld a principle “one must not benefit from his wrong” in place of the statue which stated that heirs must inherit.

In another instance Dworkin has noted that this interpretative exercise, guided by the “belt of restriction” must not mean “strong discretion” (a sergeant asked to choose five men for patrol duty) but must mean “weak discretion” (to choose five of his “most experienced men” for patrol duty) .

Theoretical disagreements, attack on the Rule of Recognition

The contents of the rules of recognition stem from consensus. For example in the US, the rule of recognition, gives legitimacy to legislation that is enacted by Congress, signed by the President, and regulates domestic commerce as the majority of officials/judges will take the internal point of view. However, this account of the criteria of validity is one that Ronald Dworkin argues is seriously flawed, on the basis that if correct, any widespread disagreements about said criteria would be very problematic for the theory. As the criteria of legality should in theory be solid and unanimous among officials, the existence of any substantial disagreement about the content or interpretation of the criteria would destroy the idea and reality of one widely held consensus. Therefore no fact of the matter atop which a disagreement could be held.

The most glaring instances of disagreements over the criteria of legal validity, are disputes about interpretive methodology. Namely, how the key sources or the criteria is to be interpreted in the present by officials and specifically judges. Many judges, think the correct method of interpretation of the US Constitution is by reading the provision(s) in question with the meaning that the American public would have associated with said provision at the time of creation, in this case 1776. (This methodology is usually termed “public meaning originalism”). Other Judges, academics, and politicians believe that constitutional provisions should be interpreted through the eyes of the present day and modern social norms, even to the point where it goes against the original meaning of the provision (this is usually called “living constitutionalism”). As stated by Dworkin, the dispute over public meaning originalism is best seen as a dispute about the legal criteria of validity. Originalists argue that in the US the criteria are originalist in nature, namely a rule of constitutional law is valid only if it is in accordance with the original public meaning of the constitutional provision. Living constitutionalists, on the other hand, deny this. Furthermore, this disagreement is commonly known and prevalent. All involved are aware of the disagreement; it is all in the open.

However, if Hart is correct about the rule of recognition, the disputants would have to be either incoherent or simply insincere. If judges do not agree on how to interpret a constitutional provision the right way, then there simply is no correct way to do interpret. Dworkin concludes that the criteria of validity are determined by moral facts as well as current social facts. The jewel of this position is that the possibility of such fundamental disputes can be established. In his opinion, disagreements about the criteria of legal validity show the fact that officials disagree about the moral value of law and/or its relation to its practice. It follows that if persons involved in the legal system are “neither hopelessly confused about legal practice nor opportunistic liars, the criteria of legal validity cannot be determined by judicial agreement about those very criteria” .

In defence of Hart’s rule of recognition

The thesis statement says that because there are theoretical disagreements in the law, it naturally follows that law is best understood as an “interpretative concept” and not as a “rule of recognition”. However, this formulation can be seen as shortsighted, on the basis that Hart’s whole enterprise has been to describe what the law is (hence, he characterised it as an “exercise in descriptive sociology”) and not what happens to it after it is identified, i.e., how it is understood and applied. In doing so, he has successfully manifested a universal criterion of how to identify a law, i.e., by virtue of the “rule of recognition”. In fact, Hart himself says that his “rule of recognition” is basically what Dworkin calls the “pre-interpretative” or “settled” stage of the law .

Furthermore, Hart himself recognises that he has said too little in his theory of legal positivism about the “interpretation of the law” , suffice it to say that within his theory and its “penumbra of the law”, contrary to the “core of the law”, there exists sufficient “margin of uncertainty” to enable the judge to make an informed decision based on the various factors at play . Therefore, according to, although he has never tried to nor ever claimed to describe how the law is interpreted, within his own theory, he has successfully accommodated the interpretation of the law.

Moving onwards, Hart says that within this “margin of uncertainty”, there are certain “assumption”, “consensus” or “paradigms” shared by the judges as to what would be the correct answer. Hart says that “the interpretative attitude cannot survive unless members of the same interpretative community share at least roughly the same assumptions about ‘what constitutes as part of the practice’”. Here, Hart says that Dworkin’s categorisation of the “best interpretative approach” and his own “assumptions” within the “margin of uncertainty” are “substantially the same” .

It is at this juncture, that is in light of Hart’s improvements over his initial thesis in his postscript, that we find a formulation of law beyond the “rule of recognition” (or the “pre-interpretative stage”) and not the “interpretative stage”. This is because the categorisation of the “penumbra of the law” as accommodating a “margin of uncertainty” restricted (similar to Dworkin’s “surrounding belt of restrictions” and “strong and weak discretion”) by the “assumptions” shared by officials makes Hart’s theory of legal positivism essentially accommodate legal adjudication/interpretation.

A counterargument to Dworkin’s criticism would be to deny that the criteria of legality can ever be determined by current official consensus, however this would be shortsighted. One very interesting part of Hart’s theory is how it discounts what has been termed the “literary Constitution” for the “Constitution in operation”. In giving privilege to current social practices, Hart can give legality to actions that would in other circumstances be hard to justify . For example, the Supreme Court has held that the Due Process clause of the Fifth and Fourteenth Amendments to the US constitution should be interpreted substantively and procedurally. Under the “substantive” due process analysis, the state has to provide fair procedures for adjudication of legal claims, and make sure the individuals are afforded certain rights as well. This interpretation is clearly a stretch at least. Despite the peculiarity of it, this interpretation of the provisions of the constitution is now legally binding. This is the case as most people modernly accept that the Constitution confers an absolute right of substantive due process on individuals.

Thus current consensus can be viewed as a sufficient condition for determining the ultimate criteria of legal validity. What Dworkin’s critique of Hart demonstrates then is that it cannot be a necessary condition for determination. In some cases though, “there may be a fact of the matter as to whether a certain test is legally proper despite the lack of agreement on such a question” .

It should be noted that this is consistent with the traditional and sufficient method for determining ultimate criteria, namely social facts. If the criterion of validity is specifically agreed, it is a social fact in this context, although this is only one type of social fact. This angle will now be explored, the idea that the rule of recognition can be construed by “social facts” outside of agreement on its content/existence.

Now to examine American legal systems and ones of that nature, the ones that have developed through a planned process constitutional design, unlike systems that have evolved from the ground up in a customary framework. In this type of system (American-like), there will normally exist agreement on at least three constitutional matters. 1) its basic institutional arrangements 2) those empowered to affect its structure (these can be termed “constitutional designers”) and 3) what the authoritative texts are. On the basis that a sufficient condition for deciding the content/existence of a shared plan is present agreement, these agreements themselves specify in part the shared plan of that legal system, and thus to figure out the rest of the shared plan, the correct method of interpreting the authoritative texts which set it out must be understood.

In some cases there might be an interpretive methodology in a system that shares a consensus, and that of course would be legally binding for that system. But what about when there is no clear consensus on how which methodology to use. The proposal here is that the correct method of interpretation of the materials would be, considering and giving effect to the original intentions of the constitutional designers and their reasons for adopting the basic institutional arrangements and using these reasons to figure out which interpretive methodology would best fit. Specifically, whatever interpretive methodology best furthers the constitutional designers’ reasoning, goals, and values is the correct one for interpreting the authoritative texts and accordingly uncovering the content of the system’s shared plan.

Although, as opposed to the inevitably more pessimistic outlooks of the designers, the officials of the present interpreting the text will view themselves as righteous and trustworthy, that anything they would do would be for what they “know” to be correct interpretation and effect. As such the safeguards put in place by the designers to stop them controlling the substance would be seen by said officials as an unnecessary bureaucratic hurdle to their good work. As such when they interpret the texts, they will use their own liberal outlook on how righteous & trustworthy they are to give themselves a large discretion in interpretation. interpret constraints narrowly, power conferring provisions with a broad ambit, ignore legislative texts when it gives a result with which they do not approve of, or withhold interpretation of regulations from the correct administrative bodies etc.

The clear conundrum with this the decisions and conduct of the interpreters, generation after generation completely defeats the point of having designers in the first place. It devolves into constitutional Chinese whispers, diluting and changing in a new direction with every new interpreter. The shared plans are generally intended to solve second-order uncertainty, specifically the issue of trustworthiness. However, if interpreters are authorised freely to use their own judgments of this to ascertain interpretive method, and to use that method to interpret legal texts, they inevitably destroy this goal. It is therefore the interpreters’ own views that determine the systems trust rather the current designers or the plan itself. in the words of Bishop Hoadly’s, “Nay, whoever hath an absolute authority to interpret any written or spoken laws, it is he who is truly the Law-giver to all intents and purposes, and not the person who first wrote or spoke them” .

With all the above discussion in mind, it follows that the proper way to decide on interpretive methodology must not depend on objectives that are morally best at the time nor on the officials actual trustworthiness. This approach however is then self-defeating, in that to bestow the current designers of legal systems with the powers to control the legal system’s authority structure as well as the content of its legal texts, but not its method of interpretation is simply illogical from an organisational standpoint. As trying to fix second-order uncertainty via the institutional design process & legislative drafting “would be defeated at the stage of interpretation” . Also, by allowing the interpreters’ to decide on methodology and how much discretion they should have with reference to their own stand on morality and trustworthiness, the implementers can simply substitute the designers ideas and rationale for their own.

Conclusion

In conclusion, it is very clear that there do exist theoretical disagreements in law, about the nature of the law as well as the meaning of any particular provision. The question is, does the rule of recognition exist. In light to the discussions above, it must depend on the definition. If taken in a very bare bones and wide context, it does exist as a test of legal validity in a legal system. However, if the rule of recognition is taken as a duty-imposing convention on officials as Hart saw it, the rule of recognition of course cannot exist. As has been presented, the level of disagreement prevalent could not coincide with such a unanimous master rule.

Although perhaps that does not of itself justify the statement that Dworkin’s theory explains law better than Hart’s theory of legal positivism. This is because firstly, Hart’s theory was always restricted to separating of the “legal” from the “non-legal” and Hart admittedly never sought to the interpretation of the law. Nevertheless, as Hart demonstrates in his postscript by responding to the critiques levelled against him by Dworkin, legal adjudication can very well be accommodated within Hart’s initial theory of law as the law has a “core” and a “penumbra”. The penumbra in turn has a “margin of uncertainty” guided by the “assumption” shared by the officials. Therefore, both Dworkin and Hart’s theory of law successfully describe the phenomenon that is law, and are correct in their own right. “As long as there is present agreement among officials on the basic structure of the constitutional order, the constitutional designers and the authoritative texts and past consensus among the constitutional designers about the goals and values the institution is to serve and the degree of trust that is warranted to show to members of the community”, the basic ingredients for interpretive methodology may be taken and thus, the remaining portion of the rule of recognition can be salvaged and understood. Both the theories accommodate “substantive morality” into their legal formulations (Hart in the form of “constitutional restraints” within the meaning of the supreme criterion of validity and the “conviction” of the judges”, and Dworkin by virtue of the “internal point of view” of the judges).

Bibliography

Books

Benjamin Hoadly, Bishop of Bangor, "Sermon Preached Before the King," 1717, p. 12, quoted in John Chipman Gray, The Nature and Sources of Law, Macmillan, 2d ed., 1921, at p. 125.

Dworkin, R. Taking Rights Seriously (London: Bloomsbury 2013) 31

Guest, S. Ronald Dworkin (3rd edn, 2013)

HLA Hart, The concept of law (3rd edn, Clarendon Press 2012) 94

Shapiro, Scott J., “What is the Rule of Recognition (and Does it Exist)?”. THE RULE OF RECOGNITION AND THE U.S. CONSTITUTION, Matthew Adler, Kenneth Himma, eds., Oxford University Press, 2009, Yale Law School, Public Law Working Paper No. 184

Cases

Riggs v. Palmer, 115 N.Y. 506, 22 N.E. 188 (1889)