Rule Of Recognition.docx

THE FOUNDATIONS OF A LEGAL SYSTEM Rules of recognition and legal validity 

 

 





 





 



The theory criticized by Hart that is :the foundation of a legal system consists of the situation in which the majority of a social group habitually obey the orders backed by threats of the sovereign person or persons,whom themselves habitually obey no one Hart states that this theory incapable to account for some of the salient features of a modern municipal legal system Hart states of a more complex social situation where a secondary rule of recognition is accepted and used for the identification of primary rules of obligation (deserves to be called the foundation of a legal system) Wherever such a rule of recognition is accepted both private persons and officials are provided with authoritative criteria for identifying primary rules of obligation The criteria may take many forms including 1. Reference to an authoritative text 2. To legislative enactment 3. To customary practice 4. To general declarations of specified persons 5. Or past judicial decisions in particular cases In a very simple system where there is Rex 1 and he enacts the law and no legal limitations is placed upon his legislative power by customary rule or constitutional document,the sole criterion for identifying law would be reference to the enactment In a modern legal system,where there are variety sources of law,the rule of recognition is more complex,the criteria for identifying law are multiple including 1. Written constitution 2. Enactment by legislature 3. Judicial precedent Customs and precedent are subordinate to legislation since customary and common law rules may be deprived of their status as law by statute Yet they have a status in law,that is not obtained by “tacit” exercise of legislative power but to the acceptance of rule of recognition which gives them this independent though subordinate status of law Rule of recognition is very seldom expressly formulated and is not stated,but its existence is shown in the way the particular rules are identified either by courts or other officials or private persons or their advisers When the courts reach a particular conclusion on the footing that a particular rule has been correctly identified as law (rule of recognition) ,what they say has a special authoritative status conferred on it by other rules (different from individuals who recognise the law but no authoritative status on it) The use of unstated rules of recognition ,by courts and others in identifying particular rules of the system is the characteristic of the internal point of view Those who use the rules of recognition for identifying particular rules,thereby manifest their own acceptance of the rules as guiding rules and would thus have an expression of : “it is the law that…” This expression can not only be found in the lips of judges but of ordinary men living under a legal system when they identify the rule of the system

   







  





     

The observer on the other hand records the fact that the social group accepts the rules but that the observer does not himself accept the rules The natural expression of an observer is not that “ it is the law that”…but “In England they recognize as law..whatever the Queen of Parliament enacts…” The first expression would be called the internal statement because it manifest the internal point of view . Naturally the statement is used by one , who accepting the rules of recognition and without stating the fact that it is accepted,applies the rules of recognition to identify a particular rule of the system as valid . The second expression is an external statement because it is a natural language of an external observer who without himself accepting the rules of recognition to identify rules,states the fact that others accept it If this use of an accepted rule of recognition in making internal statements,is understood and carefully distinguished from an external statement of fact mayny OBSCURITIES concerning the notion of legal validity will disappear. (everyone has accepted the rule and has no contention with it with an internal statement is made and thus all are valid rules Valid is frequently though not always used in internal statements and this internal statements are made when there is an acceptance by virtue of the rule of recognition of a rule To say that a given rule is valid is to recognize that it has passed all tests provided by the rule of recognition and the rules of the system There is the idea of legal validity where a relation between validity and the “efficacy” of law If by the “efficacy of law means a rule of law which requires certain behaviour is obeyed more often than not , it is plain that there is no connection between the validity and efficacy UNLESS THE RULE OF RECOGNITION INCLUDES THE PROVISION THAT no rule is to count as a rule of the system (not valid) if it has long ceased to be efficacious In such cases,it would be generally POINTLESS either to 1. Assess the rights and duties of particular persons by reference to the primary rules of a system or 2. To assess the validity of any of its rules by reference to the rules of recognition 3. WHY : TO INSISTS ON APPLYING WHICH HAVE EITHER NEVER BEEN EFFECTIVE OR HAD BEEN DISCARDED WOULD BE FUTILE One who makes an internal statement concerning the validity of a particular rule of a system may be said to presuppose the truth of the external statement of fact that the system is generally efficacious It would be however wrong to say that the statement of validity “mean” that the system is generally efficacious Thus it is pointless to speak about the validity of a rule of the system which has never been established or has been discarded (inefficacious) The common theory is that to assert the validity of the rule is to predict that it will be enforced by courts or some other official action taken Thus the truth of the external statement of fact which an observer might record is that the system is generally efficacious and likely to continue so The above is normally presupposed by anyone who accepts the rules (internal point of view) and makes an internal statement of obligation or validity Here both cases as (presuppose and predict) ,it neglects the special character of an internal statement and treats it as an external statement about the action of the official

  



A judge in making a statement that a particular rule is valid presupposes but does not state the general efficacy of the system His statement that the rule is valid is an internal statement recognizing that the rule satisfies the tests for identifying what is to count as law in his court Hart states that it is indeed is more plausible in saying that the statement that the rule is valid is a prediction when the statement is made by a private person ,for if there is a conflict between unofficial statements of validity or invalidity with that of a court deciding the case,the former must be withdrawn There are two ideas : supreme criterion and ultimate rule Supreme criterion 1. We may say that the source of law is supreme if the rules identified by reference to it are still recognized as the rules of the system even if they conflict with the rules identifies by reference to the other criteria 2. Rules recognized by the latter are not so recognized if they conflict with the rules IDENTIFIED BY REFERENCE TO THE SUPREME CRITERION (LEGISLATURE) 3. The notion of supreme does not import the notion of legally unlimited legislative power 4. The idea of supreme criterion and legally unlimited legislature seem to converge and are easily confused because 5. Where there is a legislature subject to no constitutional limitation and competent by its enactment to deprive all other rules emanating from other sources as status of law ,it is part of the rule of recognition that the enactment by that legislature is the supreme source of law ULTIMATE RULE 1. If the question is raised whether some suggested rule is legally valid ,we must to answer this question, use the criteria of validity provided by another rule (some other rule will provide the criteria of validity for this rule for instance steps to be followed and whether this steps were followed in the making of the rule 2. For example,is this purported by law of the Oxfordshire County Council valid Yes :because it was made in accordance to the power conferred and procedures specified by a statutory order made by the Minister of Health Here the statutory order provides the criteria to determine the validity of the by law (such as procedures to be followed and to see based on this whether they are followed) 3. However we may then query the validity of statutory order and thus assess by the reference to another rule (What the queen of parliament enacts) to determine whether it is valid 4. After which we have been brought to a stop in inquiries concerning validity ,as we have reached a rule (like the statutory order and statute)that provides the criteria for assessment for the validity of other rules but there is no rule that provides the criteria for assessing its own legal validity 5. This is thus the ultimate rule 6. There are many questions which can be raised about the ultimate rule being whether it is the practice of courts,legislature ,officials or private citizens to use this rule as an ultimate rule of recognition