Sunday, November 21, 2010

Hart and the rule of recognition

In the Concept of Law, H.L.A. Hart set forth his theory of the rule of recognition. An interesting aspect of this idea is that it attempts to solve a problem of legal validity/authority (the “chicken or egg” problem) by introducing an observable practice among officials and subjects as the foundation of all legal systems.  When one is confronted with a rule R claiming legal authority, a question arises: “what gives this rule R authority?”  A natural response (perhaps by an official demanding conformity to the rule) is to point to some other rule: “statute X confers authority on rule R.”  But again, one may ask “well, what gives statute X authority?”  This process could go on ad infinitum.  This is where Hart’s rule of recognition enters the picture: we eventually get to a point where the answer to the question “why is this rule (legally) authoritative?” is simply this: “it just is.” 

The “it just is” aspect of Hart’s rule of recognition is seen in its description: it is a practice among officials and subjects of locating criteria of validity, and it is manifested in the practice of identifying norms as rules of the system by applying such criteria.  It is further illustrated when Hart claims that the existence of the rule of recognition is a matter of external fact, not a matter of validity or invalidity.  He states “[n]o such question can arise as to the validity of the very rule of recognition which provides the criteria; it can neither be valid nor invalid but is simply accepted as appropriate for use in this way” (Hart at 109).  This is why the internal point of view is crucial to Hart’s theory.  The “it just is” answer is partially constituted by the fact that the substance of the ultimate rule is accepted (as manifested in practice) as a norm, thus providing the criteria applied by the officials of the system in identifying valid laws.  This practice/acceptance acts as a backstop to the perpetual question “well, what makes this rule (legally) authoritative?”  (I understand Hart as providing a descriptive account of law’s normativity, merely describing it in terms of people’s belief).

Thus, Hart provides an account aimed to ground legal validity in the practice and belief of legal officials.  This account of the grounds of law is, however, vulnerable to an important critique set forth by Ronald Dworkin in Law’s Empire.  Dworkin argues that Hart’s theory of the “grounds of law” cannot account for “theoretical disagreement” in law.  Theoretical disagreement, according to Dworkin, is disagreement about the ultimate criteria of legal validity, disagreement about the “grounds of law.”  He claims that such disagreement is prevalent in legal practice and legal academia. 

The strength of this argument is seen in its weakening of Hart’s account as illustrated above – the “it just is” aspect of the rule of recognition.  Essentially, Dworkin’s argument claims that there is no such agreement in the legal community: no one can honestly claim “it just is” in light of the theoretical disagreement about the grounds of law.  Thus, a positivist account of the grounds of law must be able to answer Dworkin’s critique, either by locating a place for theoretical disagreement within a positivist framework or denying its significance.  Brian Leiter has recently attempted such a project (Explaining Theoretical Disagreement, 76 U. Chi. L. Rev. 1215 (2009)) , but I will not review the argument here.

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