What Makes Law Law?

1. What is Hart's Rule of Recognition?

Theory of what makes law law or an array of secondary rules in their content predispose the existence of other rules. To simplify, the Rule of Recognition decides under what conditions laws are actually laws.

(For example: In an imagined society, the laws are only laws if the leader of the society writes them down in a certain book with certain people being present.)

1. Background information to help you understand the concept.

1.1 Hart distinguishes primary and secondary rules.

• Primary rules are the rules themselves. For example: Kids are playing The floor is lava. The rule is: If you touch the ground, you die. That is a primary rule.

• Secondary rules make up the legal system and law enforcement. Without them, there would only be the primary rules (laws) but no one to make, change, enforce them or punish their violation.

There are three types of secondary rules according to Hart theory:

1. Rules of Adjudication (rules on how to treat violation of the rules)

2. Rules of Change (rules on how to change the rules)

3. Rules of Recognition ⇒ how we figure out if something is law (a rule) or not.

In certain legislative systems a law cannot be a law unless it has been passed by a body of people, like the parliament or being approved by a state official (a president or a monarch). Usually, only officials come into contact with this rule as a part of their profession.

1.2 Internal point of view (POV)

Is a way to view the legal system.

Typical behaviour of an individual who has the internal point of view is:

1. commitment to the rules of the legal system (abide by the rules)

2. critique of those not following the rules

3. feeling justified when correcting a person that has disobeyed a rule in some way

Although most civilians do not have this POV, they still follow the rules (mostly for their own gain, meaning not going to jail etc.), they do not usually judge or critique others if they disobey a rule.The one group of people who are supposed to have the Internal POV are officials (people, who are part of the government or the judiciary).

2. What is the history behind it?

H.L.A. Hart was a 20th century legal philosopher and teacher mostly operating in Oxford. During WW2, he worked for the British intelligence service MI5. After the war ended, he came back to Oxford to take up a fellowship and to later teach jurisprudence.

He was a legal positivist, meaning that he states that law and morality do not necessarily have to be connected. They can but do not have to. In other words, laws can be immoral and still be laws. This is one of the main points of the legal positivism philosophy.

Hart’s most famous piece of work is the book The Concept of Law, although he did publish other works, such as: Law, Liberty and Morality, Essays on Bentham and Essays in Jurisprudence and Philosophy.

The Concept of Law came out in 1961. The most crucial concept to come out of this piece of writing is the rule of recognition. As a part of it, Hart wrote a number of essays mentioning John Austin’s and Jeremy Bentham’s theories and criticising. However he acknowledges his intellectual debts to them as an academic in the field.

3. How does RoR apply in real life ?

Each country has a different way of incorporating it into their legal system. Some countries have the Rule of Recognition (RoR) written into their constitution (sometimes a different document). That however, is not the case for all countries (eg. The UK). If the Rule of Recognition is part of the constitution, a codified version and a "philosophical" version exist. These versions are not always the same and often get interpreted differently.

Kramer in his Where Law and Morality Meet recognises the Rule of Recognition in its foundational state and in the epi-phenomenal state (the codified/written one). If those differ, the foundational one remains the RoR, even if the codified one doesn't agree.

Nonetheless, this can change if the officials stop having an Internal Point of View towards the epi-phenomenal/codified state of the RoR. If that happens, then the foundational RoR ceases to become the RoR, because the Internal POV of the officials is directed at the codified version.

Let’s say that the RoR in an imagined society used to be that: the laws are only laws if the leader of the society writes them down in a certain book with certain people being present. This RoR is the epi-phenomenal/codified version. But the officials later start to believe that the RoR in addition to this also says that the national anthem has to be played whilst the ceremony is taking place. If the national anthem is not playing, then the laws written down in the book, by the leader in the presence of the required people, are not actual laws. So if the officials shift their Internal POV, first the fundamental form of the RoR changes and later the epi-phenomenal as well. Hart ‘s theory allows the RoR to change over the course of time.

*Dear reader, I hope you enjoyed reading my first blog and found it easy to comprehend.

Have a nice day:)*

* Please note that at no point in this blog am I providing legal advice or claiming to be a professional. These blogs are for entertainment and educational purposes only.*