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Rafael Alejandro L.

Solis
2003-04678
Legal Theory
Assignment Number 6
Professor: Atty. Jose Laureta
Chapter 6: The Foundations of a Legal System: A Summary1
I.

Rule of Recognition and Legal Validity

In his discussion, H.L.A. Hart recapped the inadequacy of the theory the asserting the foundation of a legal system
where the majority of the social group obeys in a habitual manner orders backed by threats of the sovereign who
habitually obeys or obey no one. Although this theory contains some blurred truths, the same can better be
explained in terms of a more complex social situation where there are accepted secondary rules of recognition for
the purpose of identifying primary rules of obligation. These secondary rules of recognition provide both private
persons and officials with authoritative criteria for identifying primary rules of obligation through a variety of forms
such as authoritative text, legislative enactment, customary practice, general declarations of specified persons, or
past judicial decisions. In the world of Rex I, the simple criterion in identifying law is the face of his enactment.
Hart suggests differentiating relative subordination and derivation since confusing the two has the effect of bringing
the view that all law is essentially the product of legislation. Examples to be taken into consideration are custom and
precedent, which are subordinate to legislation since the former may be denied of their status as law by statute but
their existence is not due to an exercise of legislative power. Instead, customs are existent due to the acceptance of
the rule of recognition which gives them and independent though subordinate status. The rule of recognition is not
usually expressed as a rule but its existence is manifested by the fact that particular rules are being identified by the
courts, other officials or private persons or their advisers.
Hart says that the case is different when the judges apply the criteria since when they reach a particular conclusion
on the premise that a particular has been correctly identified as law, this conclusion has a special authoritative
status conferred on it by other rules. As Hart discusses, the rule of recognition of a legal system can be seen as the
scoring rule of a game since the general rule defining the activities are seldom formulated but is instead used by the
players in making moves to win the game while the declarations of officials acquire authoritative status attributed to
them by other rules. The use of the unstated rules of recognition in identifying the particular rules of the system is
characteristic of the internal point of view.
The differentiation of the external statement of the fact that the rule is accepted from the use of an accepted rule of
recognition in making internal statements removes many confusions or ambiguities in understanding the notion of
legal validity. For Hart, to say that a given rule is valid is to recognize that the rule passed all the tests provided by
the rule of recognition. The given rule then passes as a law of the system. This claim is incorrect only insofar as it
may obscure the internal character of such statements since when there is a claim to the validity of statements, they
normally mean the acceptance by the speaker and the others rather than that the rule is satisfied. Still about the
idea of legal validity is its relation with the efficacy of law. Hart claims that there is no necessary connection between
validity and efficacy if what is meant by efficacy is that a rule of law requiring certain behavior is obeyed more often
than not. There will only be a connection between the two if some provision is made that no rule is to count as a rule
of the system if it has long ceased to be efficacious. From the inefficacy of a particular rule, there must be
distinguished a general disregard of the rules of the system, either the rule never established itself or it has ceased
to be the legal system of the group. In either case, there is no point of assessing the rights and duties of particular
persons with respect to this ineffective rule which has never been accepted or has been discarded.
Though validity and efficacy are not the same thing, the contextual connection between the two provides an
understanding of the common theory that to assert the validity of a rule is to predict that it will be enforced by courts
or some other official action taken. Hart suggests that this theory is similar to the predictive analysis of obligation
which was also rejected by Hart in the previous chapters for both theories motive is to avoid metaphysical
interpretations and both of them are due to the fact that the truth of the external fact that the system is generally
efficacious and likely to continue so is normally presupposed by anyone who accepts the rules and makes an
internal statement of obligation or validity. The two theories also make the same mistake of neglecting the special
character of internal statement and treating it as an external statement about official action. This is shown by the

1Summary of Chapter 6 of The Concept of Law By H.L.A. Hart.


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example of the judge who makes his own judicial decision including the validity of a particular rule. In this case, the
judgment is coming from an internal point of view and the claim does not state the general efficacy of the system.
This can be considered as ultimate rule because it gives the criteria by which the validity of other rules is assessed
and among the several criteria ranked in order of relative subordination and primacy, one of the criteria is supreme.
These concepts of ultimacy of the rule of recognition and supremacy of one of its criteria must be disentangled from
the theory rejected by Hart. In every legal system, there must be a sovereign legislative power which is legally
unlimited. Hart explains that a criterion of legal validity or source of law is supreme if the rules identified by reference
to the said criterion are still recognized as rules of the system even if they conflict with rules identified by reference
to other criteria. On the other hand, the rules which made reference to the other criteria are not considered rules of
the system if they conflict with rules which made reference to the supreme criterion. This notion of a superior or
supreme criterion is characterized as relative since it does not import any notion of legally unlimited legislative
power but rather only a relative place on a scale. However the terms supreme and unlimited are easy to confuse
and seem to converge since in the simpler forms of the legal system, a legislature which is subject to no
constitutional limitations implies that the supreme criterion of validity is the enactment by the legislature.
Contrary to the claim of some writers, the mere fact that judges make statements of legal validity of particular rules
already carry with them certain presuppositions, they already are internal statements of law expressing acceptance
of the rule of recognition. Those that are left unstated form the context of the statements of legal validity and are
said to be presuppositions. One presupposition is that when a person makes a claim as to the validity of a statute,
he is making use of a rule of recognition which he accepts as appropriate for identifying the law. The second
presupposition is that the rule of recognition is not only accepted by him but also accepted and employed in the
general operation of the system.
II.

New Questions

Several questions arise with the moving away from the argument that the legal systems foundations consist of a
habit of obedience to a legally unlimited sovereign and replacing it with a criteria of validity.
The first set of questions tackle the difficulty of classification, the difficulty of determining the category of the rule
used to identify the law. An example given by Hart is the rule that what the Queen in Parliament enacts is law. This
rule is not a convention since the courts are concerned with it and they apply it in identifying a law; it is also not a
rule in the same level with laws strictly so called which depend on enactment but its existence must consist in
actual practice. There are some who consider the rule of recognition as law since it is a defining feature of the legal
system in providing criteria for the identification of the rules of the system. Others consider the rule of recognition as
a fact since to assert that the said rule exists is to make an external statement of an actual fact concerning the
manner in which the rules of an efficacious system are identified. In the end, Hart claims that the rule of recognition
cannot be chosen as a law or as a fact but rather, makes a note that the ultimate rule of recognition can be seen
from two points of view: as an external statement of fact that the rule exists in the actual practice of the system; and
as internal statements of validity made by those who use it in identifying the law.
A second set of questions arises out of the hidden complexity and vagueness of the assertion that a legal system
exists in given country or among a given social group. The Austinian model of a general habit of obedience to orders
since while it is correct in designating one necessary condition illustrates this, where the laws impose obligations,
these should be generally obeyed, it only caters to the end product of the legal system, its impact on the private
citizen. Nevertheless, there are other aspects of laws to consider such as their day-to-day existence as they are
being created, officially identified, used and applied. In the latter aspects, the relationship with law involved cannot
be called obedience in the sense in which it applies to private individuals. As long as the valid laws are obeyed by
the majority of the population, there is already evidence that a given legal system exists. However, this evidence
must be supplemented by a description of the relevant relationship of the officials of the system to the secondary
rules which apply to them as officials. On the part of these officials, there must be a shared official acceptance of the
rule of recognition containing criteria to judge the validity of rules. In their case, the notion of general obedience is
inadequate as an explanation to their actions. Obedience is a misleading description in the case of the officials since
the officials need not have the view that what they do is right, correct, obligatory and in fulfilment of a standard of
behavior.
In this more complex system, only officials might accept and use the systems criteria of legal validity. The society in
which this was so might be deplorably sheeplike; the sheep might end in the slaughterhouse. But there is little
reason for thinking that it could not exist or denying it the title of a legal system. In such a case there is no reason
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why the declaration should not stand as a rule of the restored system, determining the law which its courts must
apply to incidents and transactions occurring during the period of interruption.
Hart refers to two (2) minimum conditions essential for a legal systems existence:
(1) rules of behavior which are valid according to systems ultimate criteria of validity must be generally obeyed (the
only one which private citizens need to satisfy); and
(2) rules of recognition specifying the standards for the validity of rules together with the rules of change and rules of
adjudication must be effectively accepted as common public standards of official behavior by the officials of the
system.
The first condition must be satisfied by the private citizen for any motive while the second condition must be
satisfied also by the officials of the system. Thus, Hart finds a Janus-faced statement in the assertion that a legal
system exists since it both includes the obedience by the ordinary citizens and the acceptance by the officials of the
system of the secondary rules as the standards of official behavior. This split between the obedience of the private
citizens and the acceptance of the secondary rules by the officials is made possible by the union of primary and
secondary rules.
III.

The Pathology of a Legal System

Hart mentions that in the normal and unproblematic case where the official and private sector are congruent in their
concerns, there is no doubt that a legal system exists. Rules recognized as valid are generally obeyed but there is
also a problematic case when the official sector is detached from the private sector which means that there is no
longer a general obedience to the laws which are held as valid. This latter case is the pathology of the legal system
since they represent a breakdown in the external statement of the fact that a legal system exists.
In analyzing the pathology and embryology of legal systems, one must also look at other forms of partial failure of
the normal conditions such as when the unity among officials partly break down as when there is a division over
constitutional issues. As to when we can claim that the legal system had ceased to exist, it is when the population
becomes divided and law and order breaks down since to claim otherwise would be misleading. This is because the
expression the same legal system is too broad and elastic to permit unified social consensus on all the original
criteria of legal validity. We can only describe an abnormal case wherein there is a threat of the dissolution of the
legal system.

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