Transcript of Hart - Concept of Law - Ch 6 (The Rule of Recognition)

you can step on chairs and you can jump from one chair to another chair you can step on tables you can take the cushions off the couch and throw them on the floor and step on those but if you step on the ground well then the ground is lava you lose that leg or something like that [Music] of all of the chapters of this book the concept of law that we're talking about in this course this chapter is probably the most controversial and the most interesting we're talking about chapter six which is called the foundations of a legal system you'll remember from last time or two times ago or whatever we had read chapter five right after demonstrating that austin's theory of law doesn't work in chapters three and four heart moves on to presenting his own theory we got the first sort of half of the presentation of his own theory in chapter five that was all the stuff about primary and secondary rules remember all that and now we get a sort of extended discussion about one of those primary rules the most important one it's called the rule of recognition because you remember the three types of secondary rules that hart talked about in chapter five those were all introduced to remedy certain defects with systems of rules or proto-legal systems that only had primary rules right and so we got these these three different types of secondary rules but the rule of recognition it does more than just remedy the defect of uncertainty the defect was uncertainty about what the law even is right and the rule of recognition is this rule that is supposed to recognize which laws count as law which which laws have what we call legal validity they're legitimate laws of the legal system this rule uh you know remedies this defect but it also does something else it explains how legal systems are unified it explains how all of these different rules are not just you know separate social rules created by human beings floating out there independently of one another but rather they are in some sense collected together into a legal system right this is just a fact a manifest sort of you know undeniable fact that you know one rule the rule requiring citizens to pay taxes on april 15th and another rule a rule prohibiting drug use and another rule a rule prohibiting murder these are all these rules they're all part of the same system the u.s legal system that's a fact that needs explaining and the rule of recognition is part of hart's way of explaining that fact we'll get to all of that in a minute let's just start with something that hart says this is where he introduces a sort of pattern of thought that is very common in the philosophy of law and it sometimes gets called a regress of legal validity let's just see what he says and then we'll understand why it's called this what this name means and why this this label is applied to it but anyway here's what hart says is this purported bylaw of the oxfordshire city council valid okay so we have a question there's some there's some bylaw we don't even know what this rule is it doesn't matter it's just an example of a rule within the legal system a bylaw of the city council of oxford shire that's the county um where uh oxford the city of oxford is oh i should explain what valid means um valid legal philosophers just use the word valid to mean a part of the legal system a legitimate part of the legal system a law is valid law if it's really law if it really has the status of law whereas if you just in your garage write up some new law and then post it on the front of your house that's not valid law it's not really law okay so the question is is this purported bylaw of the oxfordshire county council valid is it law yes because it was made in exercise of the powers conferred and in accordance with the procedure specified by a statutory order made by the minister of health this law gets to be law because it fits with the regulations imposed by a statutory order made by the minister of health one law as it were comes from some other law right this bylaw comes from a statutory order okay that's what we've got so far at this first stage hart says the statutory order provides the criteria in terms of which the validity of the bylaw is assessed we can tell that this bylaw is valid law because we check the content of the statutory order that's what this means this gives us the criteria for telling whether this is law then he says we may query the validity of the statutory order and assess its validity in terms of and then he's going to say something else so now we're talking about this statutory order what makes it valid where does it come from what makes it law and the answer is in terms of the statute empowering the minister to make such orders there's some other law so first we've got the bylaw of the oxfordshire county council well that's valid because it meets some criteria set out by some order given by the minister of health and what makes the orders given by the minister of health valid what makes them give what gives them their legal status well there's some there's some rule there's some statute that says that the minister gets to make gets to give orders gets to issue legitimate valid orders then he says finally when the validity of the statute now we're talking about this one up here finally when the validity of the statute lost my place again this is a long quote has been queried and assessed by reference to the rule that what the queen in parliament enacts is law we are brought to a stop in inquiries concerning validity there's one more step here this statute that gives the power to to issue orders you know valid orders to the minister this statute comes from what he calls a rule that what the queen in parliament enacts is law once we reach this rule this rule gives legal validity to this which gives legal validity to this which gives legal validity to this right but then hart says here once we've reached this point we've come to a stop concern of inquiries concerning validity that is we're done we can no longer keep asking what makes the law or the rule legally valid we can't ask of this heart says at least not in the same way we can't ask of this this rule that gives the queen in parliament the power to enact law we can't ask of it what makes it legally valid four he says for he we have reached a rule which provides the criteria which provides criteria for the assessment of the validity of other rules but there is no rule providing criteria for the assessment of its own legal validity this rule sets out the criteria it sets out the conditions that have to be met for other rules to be valid but there's no further rule that makes this rule a legitimate valid part of the legal system this is the this is the bedrock rule this is the rule where the regress stops right a regress is um well it's anything where you go back you regress right and so we go back and back and back to the more and more fundamental laws within the system right and then we reach an end to this regress heart ends the regress with a particular kind of rule and that's a rule of recognition the rule that stops the regress is the rule of recognition and indeed there's not just one regress there's going to be hundreds of them thousands of them right this one it's for a bylaw of the oxfordshire city council but then there's some other law call it law number eight right and it is only valid it's a legitimate law of the system because of you know statute 7b right and statute 7b gets its power because well it's mentioned by this other statute right and then they all go ultimately back to the rule that the queen in parliament can enact law so there's one rule all the way at the top just one and the fact that all of these different laws down here trace their legal validity back up to this one foundational rule the rule of recognition that fact explains why one law over here and another law over here are all broadly speaking laws of the same legal system so we've got this fundamental foundational rule the rule of recognition it's the rule that sets out the criteria of legal validity for all the other rules in the system right it's the foundation of the entire legal system it's the bedrock whatever you want to call it where does it come from right if this bylaw comes from the statutory order and this statutory order comes from this statute and this statute comes from this rule where does this rule come from where does it gets it its legal validity or if it doesn't strictly speaking have legal validity where does it get its existence where does it get its status as a rule as opposed to just being nothing at all another way to put this question is just why is it that the queen in parliament can enact law the answer is this the rule of recognition according to heart is a social rule that means that it comes directly from the people say that some children make up a game right they make up a game where um you know you can't step on the floor because the floor is lava right the floor is lava you can step on chairs and you can jump from one chair to another chair you can step on tables you can take the cushions off the couch and throw them on the floor and step on those but if you step on the ground well then the ground is lava you lose that leg or something like that they make up a game this game consists of all sorts of rules like the rule that says if you step on the ground with one leg then you have to hop on the other leg for the rest of the game and if you if you step on the ground with that other leg also well then you lose you're out or whatever so they've got a game and it's got all these rules where do these rules come from well the rules are real they exist they're a part of reality it's true that there's a rule that says that if you step on the ground with that leg then you have to hop on the other on your other leg right so that's true so where do these rules come from they come from the children themselves the children create these rules just sort of the same way that that a carpenter creates a table or a building right we make stuff well the kids they make the rules they create them and the way that they create them according to heart is primarily and fundamentally with their minds with a certain attitude with a certain mental state which heart calls the internal point of view we don't need to get too into the details here and it's actually controversial in the sort of uh you know jurisprudential literature what exactly this attitude is but as a basic start let's go with this when the children see themselves or one of their playmates step on the ground and then you know hop on their other foot for the rest of the game the children think to themselves yes that's the right way to do it that's the way you have to do it that's the way you must do it they make this kind of evaluative judgment of that pattern of behavior they evaluate it as as correct or appropriate or required right they evaluate those instances of behavior based on whether those instances fit with a certain pattern that they're holding in their mind here's another example of the same type of attitude there's a rule of fashion that applies to men and and i suppose actually it also applies to women in certain circumstances and the rule is something like you have to wear a brown belt with brown shoes if you're wearing brown shoes you can't wear a black belt you have to wear a brown belt that's a rule of fashion so i was told at some point in my life right well what makes it the case that there's a rule like that or what makes it the case that there's a rule you know prohibiting wearing white after labor day or whatever if there really even is such a rule well it's just that enough people buy into those rules they have a certain attitude when they see someone wearing a black belt with brown shoes they think that's not correct that's not the way to wear belts right you have to wear a brown belt with those shoes right and when they see someone who's wearing a brown belt with brown shoes when they think about it they think that that's correct right they evaluate that instance of behavior based on whether it fits with some pattern when enough people according to heart when enough people take this attitude towards a certain pattern like the pattern of wearing brown belts with brown shoes or the pattern of hopping on your other foot when you step on the ground with the first foot right when enough people use these patterns in these ways as standards of evaluation well that transforms that pattern of behavior into a rule that's how we create social rules social rules exist because we think they exist in the certain particular sense we create social rules and the rule of recognition is a social rule there's some group of people we'll get to what that group is in a bit there's some group of people who have a certain attitude towards this rule or towards a pattern of behavior or something like that and it's in virtue of that that this rule exists and is the rule that it is this law comes from this statute which comes from this statute which comes from this rule but this rule the rule of recognition is a social rule so it comes directly from the people the people have the power they're the ones that ultimately make the legal system and they do it by making the rule of recognition and that's what makes a legal system exist here's something else that hart says about the rule of recognition this is a shorter quote for the most part the rule of recognition is not stated but its existence is shown in the way in which particular rules are identified either by courts or other officials or private persons or their advisors so what's going on here think about the example hart mentions this again in this chapter the example back from chapter four i think it was of um you know a simple legal society with rex the king the king is rex rex the first okay rex is king rex makes the rules right and so there's all sorts of rules in this society there's rules that say you know you have to pay taxes on april 15th right or thereabouts that's a rule of this society and there's another rule that says don't murder anyone and if you do you'll be punished in such in such a way right and there's going to be even rules let's say that you know empower judges stuff like that right let's say there's some uncertainty there's a dispute about what the rule exactly is you know someone goes comes to collect taxes and and someone says oh taxes aren't due today today is april 15th and the other person says no no the taxes are due on april 15th not some later date well how do they resolve this uncertainty well in this simple society when they want to know what a rule is they just think well what did rex say because in this simple legal system the laws are all made by the king by rex right and maybe there's some maybe there's some pattern or restriction on how rex can make laws like when he's just sitting around in his bathtub it's not like everything he says in there becomes law no no maybe the maybe the rule in their society is that rex he gets to make the laws but he has to stand on the big rock in the middle of the village and he has to hold his stick the staff or whatever and when he's standing on the rock holding the staff whatever he says then that counts as law so there's a dispute about what the law is and then someone says they resolved this dispute by pointing to the fact that rex said that taxes are due on april 15th when he was standing on the rock right someone says oh no they're due today don't you remember rex said so six months ago when he was standing on the rock holding the staff and the other person says oh you're right now i remember he did say that and so you're right it is law okay in this society there's there's a rule of recognition there's a rule recognizing these other laws right it's the rule of recognition and it says something like you know if rex says it on the rock then it's law right that's the rule of recognition for this simple uh legal system notice something this rule of recognition isn't written down anywhere right maybe they write down these laws right maybe in this society instead of rex just saying what the rules are on the rock he stands up on the rock and he writes the rules out on a piece of paper then he reads them out to everybody or whatever and he posts them up on the tree or something like that so all of these rules are written down on pieces of paper on the tree but this rule isn't rex never got up on the rock and wrote down and said you know whatever i say on the rock and write on these pieces of paper and post on the tree those are law so all of these are posted on the tree this one isn't this one is still a part of the legal system it's just that you can't find it written down somewhere instead if you want to figure out what the rule of recognition you have to look at the way in which particular people act right the way in which rules are identified by groups of people right when they're trying to figure out what the laws are oh they look at the tree they look at what what's posted on the tree by rex so the fact that they do this activity of looking at the documents that rex posted on the tree that shows that there must be some other rule even though that rule itself is not written down and it's the rule that decides which other rules count as law the point of all this is that in simple legal systems the rule of recognition is not written down maybe debatably in other legal systems and this is a point of controversy which we will return to later in the course right the rule of recognition is written down maybe it's just the constitution right if there's a written constitution maybe that just is the rule of recognition the ultimate law at the foundation of all the other laws maybe we'll get into the details of that later in the course but if you want to think of the constitution as the rule of recognition for now that's fine that's fine with me at least although there might be some problems to that claim it might turn out that the rule of recognition has to be some silent unspoken law that just points at the constitution and says something like whatever the constitution says goes maybe that's really the rule of recognition it's it's one step more fundamental than the constitution itself maybe the point is just this rules of recognition these social rules that are created by people in their minds right it's created by the by the people in this society right um rules of recognition don't need to be written down they don't need to be stated anywhere they can just be shown or demonstrated by the ways in which particular rules that is these specific rules here particular rules are identified either by courts or other officials right so by judges or police officers say or or council people right or private persons ordinary people or their advisors i think that means the lawyers of the private persons right if a bunch of these people enough of the right people here if they defer to the documents that rex posted on the tree right in order to determine what the law is if they if they defer in that way then that just shows that there's a rule like this operating in the background a rule that they accept by taking the internal point of view and that thereby exists and functions as the foundation of the legal system there's one more little snippet from chapter six the foundations of a legal system that i want to talk about this is the moment this is the place in the chapter it's towards the end we read this but we read this part as well this is the place in the chapter where heart just states as simply and boldly and directly as possible in a single sentence what his theory of law is that is he presents the conditions that he thinks are necessary and sufficient for the existence of a legal system here's what he says there are therefore two minimum conditions necessary and sufficient oh okay um if you don't already know what these terms mean necessary and sufficient or aren't familiar with them from philosophy classes that you've taken in the past this just means that these conditions are required they must be the case and they're enough necessary and sufficient you know needed and enough right so these conditions are all you need they're sufficient but you do need them they're necessary for the existence of a legal system okay so here are the two ingredients you've got to have both of these ingredients if you want to have a legal system and if you have both of these ingredients then you've got a legal system according to heart here we go the two necessaries fishing conditions on the one hand those rules of behavior which are valid according to the system's ultimate criteria of validity must be generally obeyed that's the first condition right so citizens citizens ordinary people enough of them how many enough right the citizens must obey you know the primary rules right so those rules right down here at the lower level that meet the criteria of validity specified at the upper level enough of those rules need to be obeyed enough of the time by enough of the people the first thing you're going to notice about this is that broadly speaking something here is right if you've got some rules that are generally disregarded then you can still have a legal system but if people are disregarding most of the rules or almost all of the rules right if everyone's running around stabbing one another taking one another's property even though all of these things are strictly prohibited but everyone's doing it then you might say that this place where this is going on is lawless that's exactly what you'd say and that's what you should say and it is lawless you'd be right to say it you need to have enough obedience how much exactly well heart is rather vague about that but i think he's right to be vague about it because the existence of a legal system is a vague matter some legal systems are borderline whether there really even is a legal system in this country there are rules that are followed some of the time is it enough to make it a legal system well it's close and so right the degree to which the the rules are consistently obeyed well that corresponds exactly to the degree to which the legal system counts as a real legal system he's vague about it but that's the right thing to do one should be vague because the the phenomenon itself is vague okay that's the first conditions enough of the people have to follow enough of the rules enough of the time that's condition one notice by the way this is a behavioral condition right this is specif this is satisfy this condition if there's just some behalf if there's just some facts about the behavior of the of the people right and behavior just means the outwardly observable movements of someone's body and the sounds that come out of their mouth and that sort of thing right what can be observed by other people so this condition is behavioral and then he specifies the second necessary and you know jointly with number one sufficient condition for the existence of a legal system he says on the other hand its rules of recognition that is the rules of recognition it's funny that this is plural anyway it is plural in the text the rules of recognition of the system specifying the criteria of legal validity that's what rules of recognition do they say what other rules have to do to be legally valid those rules of recognition and its rules of change and adjudication the rules of change and adjudication which we talked about from chapter five of this system right they must be effectively accepted as common public standards of official behavior by its officials the other condition is that the officials of the system have to do something they must accept the rule of recognition and some other rules right as standards for their own behavior and the behavior of other officials okay so it sounds like in this case hart is thinking of the rule of recognition and these other secondary rules as duty-imposing rules that apply to officials anyway that's that's a side note don't worry if if that sort of went over your head that's an extra detail but anyway the officials must accept these rules acceptance by the way is just another name that heart uses for the internal point of view they have to think of these rules in a certain way so this condition this second condition for the existence of a legal system this is a psychological condition this is a fact or a putative fact about how the officials think they have to think in a certain way they have to have a certain mental state right or be in a certain mental state if enough of the people follow enough of the rules hart says and if the officials of the system if they internalize those rules and use them to judge instances of their own behavior in the behavior of other officials well then a legal system exists