Rule of Recognition

Hart’s Rule of Recognition

Herbert Lionel Adolphus Hart, who lived from 1907 until 1992, was the person who first proposed the concept of the rule of recognition. This was a social rule that distinguished social norms that are backed by the power of law from those that are not.

Differences between Law and Command

Content, origin, and range are three examples of such crucial variances that Hart observed. Not every piece of legislation is binding or forceful. Some of these enable us to establish contracts and other legal relationships. Austin held that every legal system needed a sovereign, like the shooter in the bank scenario, who is the sole source of instructions and is not subject to other people's commands and who produces the law (origin) while staying unaffected by it (range). According to Hart, laws may come from a variety of places, and lawmakers are often held accountable for the laws they enact. The concept of the rule of recognition, a social rule that distinguished between standards that have legal power and those that do not, was first proposed by Herbert Lionel Adolphus Hart (1907-1992).

Primary Rules

The rules or regulations that regulate broad society behaviour are referred to as primary rules. Therefore, main principles establish legal responsibilities and the penalties that follow when those commitments are violated. The law that forbids murder serves as an excellent illustration of a main rule since it makes it illegal for a person to kill another and attaches penalties to the act of committing, trying to commit, and plotting to do the crime.

Secondary Rules

The authority to establish sovereignty is bestowed by secondary norms. They also give the right to revise, modify, or enforce main rules. This power extends to secondary rules as well. The ambiguity of the law, the inefficiency of the law, and the static quality of the law are the three key problems that primary rules are unable to address in legal systems. Secondary rules do so by addressing these concerns. There are three different kinds of secondary rules, and each one tackles a different one of these problems; nonetheless, they are all interrelated. The rules of recognition, the rules of change, and the rules of adjudication are the three distinct categories that Hart identified for secondary rules.

Rule of Recognition

The rule of recognition is an acknowledgment of the things that are, in point of fact, legal. According to Hart, the use of a rule of recognition is the solution to the problem of ambiguity posed by the regime of fundamental rules. The rule of recognition is a set of norms and requisites that control the validity of all rules. As a result, the rule of recognition bestows authority onto newly formulated rules by validating them. By educating people about the factors that determine whether or not a law is legitimate, it not only fixes the problem of ambiguity but also gives individuals the authority to know for sure what the law is. To recognise a rule as legitimate is to acknowledge that it satisfies all of the requirements set out by the rule of recognition. As a result, standards of recognition are put into place to determine whether or not an additional rule is a component of the legal system. According to Hart, Kelsen's grundnorm (also known as fundamental norm) gave way to the development of the rule of recognition.

Rule of Change

A legal system's other rules may only be modified or eliminated in accordance with its most basic rule, which is known as the rule of change. It corrects the problem of not making progress (also known as being stagnant) by introducing private and public powers of legislation and repealing existing laws. The basic rules of a legal system are susceptible to being identified and altered by the system's subsidiary rules. The static nature of the regime of main rules may be remedied by instituting rules of change, which will ensure that the system is both dynamic and progressive. The authority to establish new main and secondary rules, as well as the right to amend existing ones, may be granted or taken away by the rule of change. The given powers may be unconstrained or limited in a variety of ways, such as by identifying the individuals who are to legislate or by defining the method in terms that are more or less stringent. Both of these examples are examples of how the bestowed powers may be restricted. Hart emphasised how closely connected the rule of change and the rule of acknowledgment are to one another. In situations in which the rule of change already exists, the rule of recognition will always include a reference to legislation as an identifying element of the rule. However, the rule of recognition does not have to relate to every single procedural detail that is associated with legislation.

Rules of Adjudication

The purpose of the rule of adjudication is to address the problem of inefficiency in the administration of justice by establishing courts and other institutions of the legal system. It gives the courts and other institutions the authority to decide for themselves whether or not a fundamental rule has been breached in a given instance. This gives such institutions more influence over the law. The election of judges and the procedures they follow are both governed by the rule of adjudication. In the same way that the rule of change has to be reinforced by the rule of recognition in some form, so too does the rule of adjudication. Therefore, the rule that establishes jurisdiction will also serve as a rule of recognition. It will do this by determining the fundamental rules via the decisions of the courts, which, in turn, will serve as a source of legal precedent.

Rule of Recognition as Supreme Criterion

The rule of recognition is the overarching principle that governs all of the other rules and serves as the fundamental principle around which a legal system is built. Because the rule of recognition establishes the parameters for what constitutes law inside a system, it is used to recognise and authenticate all of the other rules that are included within that system. In the legal system of the United Kingdom, the rule of recognition is the enactment of Parliament, and if that legislation is in disagreement with the common law, or with local or general custom, the enactment will take precedence. In contrast to a bylaw, for which it is possible to trace the origin of a title or validity all the way back to an act of parliament, the rule of recognition is both superior and conclusive since it precludes the possibility of any further tracing of validity.

Goals of Rule of Recognition

According to Hart, the rule of recognition is the result of a convention among officials, during which the officials recognise the criteria of the rule as standards that impose obligations and bestow authorities on officials, as well as resolves concerns and controversies within the community. It is possible to know the rule based on the social practises of officials who acknowledge the rule as a valid norm of conduct, apply social pressure on one another to comply with it, and generally meet the conditions of the rule.

Functions of Rule of Recognition

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

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

3.      To unify the laws in the applicable legal system.

Validity of Rule vs Rule of Recognition

The effectiveness of the rule of recognition has no bearing on whether a legal system is legitimate. As long as the rule derives from the rule of recognition, a rule that does not have the expected outcome may nevertheless be legal. But for a regulation to be legitimate, the legal system it is a part of must be effective. A legitimate legal rule is one that conforms with the rule of recognition.

Challenge to Rule of Recognition

The fact that the bill has been made law in accordance with proper parliamentary procedure shall, in accordance with the rule of recognition, render it valid law. The judgment in  R (Factortame Ltd) v Secretary of State for Transport  (No 1) [1990] 2 AC 85 represents an alteration of the rule of recognition, by confirming the incompatibility of UK legislation (Merchant Shipping Act) with EU law, and deciding that the provisions of such law were to be disapplied by the UK courts if they contravened EU law.

Finnis’s Criticism of Rule of Recognition

Finnis faulted Hart for not describing the authorities' attitudes towards the rule of recognition in enough detail. According to Finnis, a variety of behaviours indicate that an official has accepted the norm of recognition. Finnis thought that a rule's moral approval is the key component in determining whether an official would recognise it. Finnis said that he had discovered a conceptual and logical connection between morality and validity since the norm of recognition must have some moral purpose.

Dworkin’s Criticism of Rule of Recognition

Dworkin chastised Hart for his failure to recognise the significance of case law as an integral part of the common law legal system. The rule of recognition does not guarantee that case law in the form of precedent may be recognised with absolute certainty. This is because it is contingent on the manner in which judges read laws and make judicial judgements in which morality plays a part. Judicial reasoning is seen to be beyond the domain of law since the application of legal reasoning in difficult instances is often contentious. As a result, the rule of recognition cannot effectively define the law that should be applied.

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