Hart's Rule of Recognition and American Law

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Robert Gissubel
Hart’s Rule of Recognition and American Law
According to Hart, a rule of recognition is the basis on which a society deems its laws to be valid. It is the reason for people in a society to act in accordance with primary and secondary rules set forth by the governing power. The primary justification for adherence to law is interpreted as the rule of recognition, for it defines obligation to such law as a standard for society. This foundation provides criteria for the validation of law and, though commonly understood within a society, can still be referenced as a justification. Furthermore, a rule of recognition acts as the final justification in a series of statutes.

When considering the U.S. legal and political system, the rule of recognition can be defined by how well a rule or law adheres to the U.S. Constitution. This in turn decides obligation of U.S. citizens to obey them. It may be argued that the Constitution itself is the rule of recognition, but as Hart states: “The existence of such a rule of recognition may take any of a huge variety of forms, simple or complex. It may, as in the early law of many societies, be no more than that an authoritative list or text of the rules is to be found in a written document or carved on some public monument… In a developed legal system the rules of recognition are of course more complex; instead of identifying rules exclusively by reference to a text or list they do so by reference to some general characteristic possessed by the primary rules.” (p. 45-46) The U.S. legal system is considered a developed one that consists of many levels of statutes, amendments, and precedence. Simple reference to the Constitution cannot provide complete justification for the existence of a rule. Instead, one must take into account the rule’s relation to the Constitution, previous interpretations of related rules, and the possible conflict this rule may have with the previous rules. Observation of these relations is in actuality observation of the framework of the U.S. legal system. By determining how well a rule or law adheres to the Constitution and whether or not it conflicts with other primary rules, one can determine its validity and, therefore, determine citizens’ obligation to it.

The rule of recognition cannot be viewed as a law itself. It is the framework, or blueprint used to build a legal system and establish primary rules. Hart mentions, “In the day-to-day life of a legal system its rule of recognition is very seldom formulated as a rule…its existence is shown in the way in which particular rules are identified, either by courts or other officials or by private persons or their advisors.” (p.47) The rule of recognition is more of a standard that is generally accepted by a society around which laws can be built. Hart also compares the rule of recognition to scoring rules of a game. The scoring rules are seldom stated, but are used to identify steps towards winning (Hart, p. 47). This is a good example for identifying a simple rule of recognition, but as stated before, the legal system of the U.S. is more complex. The Constitution must be taken into account when considering laws, but connections between laws must also be acknowledged. In this sense, when a person in the U.S. states that something is law, they are acknowledging that it adheres to the Constitution and acts in accordance with other primary laws, which also adhere to the Constitution.

Dispute over what constitutes the rule of recognition may occur in a society, but regardless of this dispute, Hart would argue that the rule of regulation is as it stands. There are rules and laws based upon the rule of recognition in a society. A person may disagree with the rule of recognition, but it does not change the fact that it is the reigning standard on which all other rules in the society are based. Hart uses the comparison of an external observer to show how a person can acknowledge the existence of a rule...
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