3. ANTECEDENTES
3.10. Aspecto económico. Comercialización de los biocombustibles y subproductos
Introduction
This chapter pays particular attention to what is probably the major focus of Hart’s theory: the set of criteria through which laws are identified. Hart is very specific about how we identify the rule of recognition, namely, that its existence is a question purely of empirical fact. It is therefore appropriate in this chapter to see what he says about legal method in his now well-known Postscript to The Concept of Law, because there he affirms that his aim all along in his work was just to give a factual account of law, one that did not import any moral judgment.
Learning outcomes
By the end of this chapter and the relevant readings you should be able to:
u describe the rule of recognition in detail
u describe what Hart calls ‘the necessary and sufficient conditions of the existence of a legal system’
u explain the significance of the rule of recognition for Hart for establishing his particular form of legal positivism
u discuss critically Hart’s claim that the rule of recognition is identified as ‘a matter of fact’
u outline the main arguments put by Dworkin in his criticism of the rule of recognition theory
u express your own opinion about the ‘ultimate’ criteria of legal validity, supported by reasons
u describe in general terms the position that Hart takes in the Postscript
u give an account of the significance of the Postscript (a) for interpreting the main doctrines of The Concept of Law and (b) for understanding law generally.
Essential reading
¢ Hart, H. ‘Postscript’.
¢ Dworkin, R. Taking Rights Seriously. (London: Duckworth, 1978) [ISBN 0715611747] Chapter 2.
¢ Finnis, J. Natural Law and Natural Rights. (Oxford, Oxford University Press, 1980) [ISBN 0198761104] Chapter 1.
¢ Guest, S. ‘Two strands in Hart’s The Concept of Law in Positivism Today. (Aldershot:
Dartmouth, 1996) [ISBN 1855216892] p. 29.
¢ Hart, H. Essays in Jurisprudence and Philosophy. (Oxford: Oxford University Press, 1983) [ISBN 0198253885] pp. 62–72 (on the ‘core’ and the ‘penumbra’ of legal rules).
¢ MacCormick, N. Legal Reasoning and Legal Theory. (Oxford: Oxford University Press, 1978) [ISBN 0198760809] Appendix, p. 275.
¢ Case: R. v Registrar of Births, ex parte Smith [1991] 2 QB 393; Riggs v Palmer 115 NY 506 (1889).
Jurisprudence and legal theory 6 A master rule for law: Hart’s rule of recognition page 81
6.1 Identifying the rule of recognition
Essential reading
¢ Hart, pp. 94–110, 147–54, 246–68, 292–95.
While you are studying Hart, you should distinguish a narrower, professional question from the general question – ‘What is law?’ – that Hart sets himself at the very beginning of The Concept of Law. This narrower question is ‘What is the law?’ and it is narrower because it leads to a more precise specification of the issue on which knowledge of the law is required, and (most importantly) a specification of the legal system to which the question relates. Someone who asks, for example, ‘What is the law concerning mortgages in England?’ will be disappointed by the reply that ‘it is the union of primary and secondary rules’ (the answer to the ‘general question’), considering it to have no practical relevance.
Hart’s reply would depend on his theory of legal validity. Briefly, his answer is that the law on a particular topic in a particular legal system is that which it is according to the rule of recognition in that system. We need, therefore, to examine more closely what Hart means by his rule, or rules, of recognition.
Incidentally, if you are wondering whether there is only one rule of recognition, or whether there are several, the writer can confirm that he has asked Hart this very question. Hart’s reply was that there is no importance in the issue. We can loosely refer to several rules, such as, in the United Kingdom, ‘What Crown-in-Parliament enacts is law’, or ‘What the common law courts decide is law’ and so on, or we can simply bundle them all together in one more complicated rule such as ‘What Crown-in-Parliament enacts and what the common law courts decide and ... is law’. Hart’s definition occurs on p. 94 of The Concept of Law. The rule of recognition is defined as specifying
‘some feature or features possession of which by a suggested rule is taken as a conclusive affirmative indication that it is a rule of the group to be supported by the social pressure it exerts.’
6.1.1 The supreme criterion and the ultimate rule
A rule of recognition, therefore, is simply a rule whose function is to identify whether or not another rule is part of the legal system. Hart further distinguishes between what he calls a supreme criterion and an ultimate rule of recognition:
u The supreme criterion is part of the rule of recognition and is the part which dominates over the rest. So the supreme criterion in the United Kingdom legal system is Parliamentary enactment, and if the common law, or local or general custom, conflicts with Parliamentary enactment, that enactment prevails.
u The ultimate rule of the system is the rule of recognition itself because you cannot go back further than that. It is ultimate in the sense that Kelsen’s basic norm† is, because we cannot trace validity back any further. So we can trace back the root of title or validity of a bylaw to an Act of Parliament but here, says Hart, we are brought to a stop in inquiries concerning validity.
Hart uses this distinction between a supreme criterion of validity and the ultimate rule of recognition to criticise Austin’s attempt to say that all law is the result of legislation (remember Austin’s theory of the tacit consent of the sovereign). He claims that this sort of confusion is caused by supposing that the supreme criterion of validity within the rule of recognition is the rule of recognition itself, that is, in the case of the United Kingdom, supposing that the only rule of recognition is: ‘What Crown-in-Parliament enacts is law’.
The existence of the rule of recognition is a matter of empirical fact, to be determined by looking to the actual practice of the officials of the system. But Hart says that this does not mean that the rule of recognition is explicitly declared, saying that in the day-to-day life of a legal system its rule of recognition is very seldom expressly formulated as a rule and that 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.
† For a discussion of Kelsen’s basic norms see Chapter 10 of this guide.
Activity 6.1
As you read the text, ask yourself the following questions and note down your thoughts:
a. What is the importance, if any, of the rule of recognition?
b. What is the importance, if any, of a distinction between identifying law itself, as opposed to identifying particular laws of particular legal systems?
c. Is Hart’s definition of a legal system convincing?
d. Distinguish what Hart means by ‘supreme’ criterion and ‘ultimate’ rule.
Feedback: see end of guide.
6.1.2 The definition of a legal system
The definition of a legal system (as opposed to ‘law’) is important for understanding the relationship between effectiveness and validity in Hart’s theory. He says that it is pointless to talk of legal validity unless the legal system is generally effective.
The criteria for the existence of a legal system are that:
u The officials of the legal system must have the internal attitude towards the rule of recognition of the system, and it is not necessary (although it might be true) that private citizens have the internal attitude towards the rules. Hart says that what is crucial is that there should be a unified or shared official acceptance of the rule of recognition containing the systems criteria of validity.
u The valid legal rules of the system must generally be obeyed by both officials and the private citizens.
Note that he says that sometimes there might be a point in talking as though a legal system was in existence, as when teaching a subject like Roman law. The Roman legal system is no longer effective, yet, he says, a vivid way of teaching it is to discuss the validity of the particular rules in that system as if the system were still effective.
Nevertheless, because it is no longer effective, no-one thinks that Roman law is currently valid.
Summary
The rule of recognition answers the question ‘what is the law of a particular system?’ It is found by recording the actual practice of judges and other officials of a legal system.
It is the ‘ultimate rule’ but it comprises both ‘supreme’ and ‘subordinate’ criteria of legal validity. The rule of recognition is also pivotal in defining what a legal system is.
Reminder of learning outcomes
By this stage you should be able to:
u describe the rule of recognition in detail
u describe what Hart calls ‘the necessary and sufficient conditions of the existence of a legal system’
u explain the significance of the rule of recognition for Hart for establishing his particular form of legal positivism
u discuss critically Hart’s claim that the rule of recognition is identified as ‘a matter of fact’.
Jurisprudence and legal theory 6 A master rule for law: Hart’s rule of recognition page 83
6.2 Criticism of the rule of recognition 6.2.1 Finnis’s critique
You should note two important criticisms of Hart’s rule of recognition. One is Finnis’s criticism in Natural Law and Natural Rights Chapter 1. A shorter version is to be found in his ‘Revolutions and Continuity of Law’ in the Oxford Essays in Jurisprudence: Second Series. His criticism is that Hart leaves insufficiently specified the sort of attitude towards the rule of recognition that the officials have. Finnis says that there are a number of attitudes that could be described by this phrase and that – here he employs Hart’s own definitional technique (see section 5.3 of this subject guide) – there must be a central set of elements that constitute an official’s acceptance of the rule of recognition.
Finnis’s own view, which is a complex variant of natural law, is that the central set of elements constituting an official’s acceptance of a rule of recognition, is a moral acceptance of the rule. In this way, Finnis claims to have found a conceptual, logical link between validity and morality. A similar sort of criticism of the rule of recognition is to be found in the final Appendix to MacCormick’s Legal Rights and Legal Reasoning.
You might note, too, that there is a strong connection between Finnis’s thesis and Dworkin’s thesis that a proper legal theory must explain the moral force of law and that a proper interpretation of law requires us to make the best moral sense of our legal practices.
The other criticism is Dworkin’s criticism in Chapter 2 of Taking Rights Seriously. You should read this in conjunction with Chapter 11 of this subject guide, particularly sections 11.2 and 11.3.
6.2.2 Dworkin’s criticism of the rule of recognition
Dworkin’s theory of judicial integrity is important and the difficulty is that, although he writes in the same rigorous intellectual mould of Bentham, Kelsen, Hart and so on, he is not a legal positivist. You have to be prepared for some very different ideas! The best start is to read Chapter 2 of his Taking Rights Seriously. Since Hart is the set book, this article is useful because it sums up in a very neat analysis what the rule of recognition is, before going on to give a very well-known and much argued about criticism of Hart’s theory.
The argument in a nutshell is as follows. If we take Hart at face value (and why not?) the point of the rule of recognition, which we identify as a matter of ‘empirical fact’
is ‘to cure the defect of uncertainty’ in a society of primary rules alone. It follows that any rule purporting to be a rule of law, can be identified with certainty (by applying the test of identification of the rule of recognition). It follows that any rule purporting to be a rule of law that cannot be identified with certainty is not a rule of law at all. And so all ‘hard cases’, in other words all those cases in which it is controversial what the law is, and almost all those cases that come before appellate judges do not concern law at all. To take an example, if a statutory provision prohibits ‘vehicles’ from a park, a purported rule of law that is relied on, say, by a prosecutor, that roller-skates are prohibited from the park (this is Hart’s example, incidentally, from Chapter 2 of his Essays in Jurisprudence and Philosophy), is not a rule of law at all, just because it is controversial. Dworkin says three things follow from this:
u the judge has to act as a legislator to make new law for the future on whether roller-skates are prohibited or not, and this is contrary to what we suppose the judicial role to be (judges are not elected to legislate)
u the judge characteristically then applies that law to the defendant, and so this would be retrospective legislation, which is unfair and not how we think judges act
u judges must continually be mis-describing what they are doing, because they talk as if they were ‘finding’ the law, rather than ‘legislating’ (and lawyers, law students, etc., also talk in this way). So, concludes Dworkin, there must be something wrong
with the positivistic picture because it is useless when it comes to giving an account of legal argument. And since legal argument clearly plays a central role in all matters legal, positivism fails.
You need to get a firm grasp of what Dworkin is getting at in the idea of interpretation before you can criticise him. He argues that there is no ‘descriptive’ sense of what a rule means independent of making an interpretation of that rule. It is very common to suppose that ‘vehicles are prohibited from the park’ says something very clear.
Certainly, Hart was of that opinion, and he usefully distinguished between the ‘core’
meaning of a rule – the uncontroversially clear meaning – and the ‘penumbra’ in which there is a degree of uncertainty about what the law requires (see Chapter 2 of Hart’s Essays in Jurisprudence and Philosophy). For understanding Dworkin two points need to borne in mind:
u Clear meanings are themselves only ‘clear’ because of some interpretation. So in the above example, to say that these words ‘prohibit’, say, ten-ton trucks, is to apply some understanding of the ‘point’ of the words in question, and understanding the idea of a right to prohibit, means seeing the author of those words in a particular light. After all, if you or I write on pieces of paper ‘vehicles are prohibited from the park’, this does not create a legal prohibition. So, to understand the words in a particular way is not merely to read them, but to interpret them, because we have assigned point to them.
u Unclear meanings really bring out the above. There is no answer to the question
‘what does “vehicles” include?’ in advance of an actual example and an argument.
Consider s.51 of the Adoption Act 1951. This section states:
‘If any person applies in the prescribed manner for his or her birth certificate, the Registrar-General shall supply that person with the required certificate.’
Now ask yourself what that statutory provision means. Does it apply to everyone? Does it place an absolute duty upon the Registrar of Births to supply a birth certificate to whomever applies for one in the correct manner? Or do you have to know the precise facts first?
Now read R. v Registrar of Births, ex parte Smith [1991] 2 QB 393. Smith was a mentally disordered person who was in Broadmoor† psychiatric hospital because he believed that his ‘troubles’ were caused by his natural mother in placing him for adoption and he had tried to murder one person, and successfully murdered another, because in both cases he mistakenly thought his victims were his natural mother. He applied for his birth certificate in order to find out who she was and, of course, there was clearly evidence that he might cause serious harm to her. When you are faced with this situation it seems much more difficult to say that section 51 clearly gives him a right to his birth certificate, despite what the words say, because it is difficult to suppose that Parliament intended to place the natural mother at such risk. After all, Parliament had also declared the aiding, abetting, procuring and counselling of criminal offences to be illegal, and handing this birth certificate to Smith would have been like handing a gun and ammunition to someone who has made it clear that they intend to commit a crime (this would be a classic case of procuring a criminal offence).
Summary
Finnis criticises Hart’s rule of recognition for its over-emphasis on identification through empirical fact, raising the question whether some evaluative criteria are required; if a moral evaluation (that, for example, the rule of recognition must serve some moral function such as enabling us to lead our lives in a better way) is required, then there will be a ‘necessary’ link between law and morality. Dworkin criticises the rule of recognition because it leaves judicial reasoning outside the realm of law. Since legal reasoning in hard cases is controversial, he says, the rule of recognition cannot adequately identify the law to be applied.
† Broadmoor is a secure psychiatric hospital situated about 70 km west of London.
Jurisprudence and legal theory 6 A master rule for law: Hart’s rule of recognition page 85 Reminder of learning outcomes
By this stage you should be able to:
u outline the main arguments put by Dworkin in his criticism of the rule of recognition theory
u express your own opinion about the ‘ultimate’ criteria of legal validity, supported by reasons.
6.3 The Postscript
Essential reading
¢ Hart, ‘Postscript’.
¢ Guest, S. ‘Two strands in Hart’s The Concept of Law’ in Positivism Today (1996).
This chapter concentrates on the detail of the Postscript to The Concept of Law in which Hart counter-attacks Dworkin’s attack on legal positivism and his perceived attack on Hart’s method of legal theory.
6.3.1 Hart versus Dworkin
Hart affirms that his theory was intended to be both descriptive and general, in the sense that is not tied to any one particular legal system. By ‘descriptive’ he says that he intended it to be morally neutral and with no justificatory aims. He says that this is a radically different enterprise from that envisaged by Dworkin which, he says, is in part evaluative and justificatory and addressed to a particular legal culture. Then he says that because of these differences, he and Dworkin are not in conflict (Finnis has maintained they are in conflict); it is just simply, so it seems, that they are each writing with different aims in mind.
Further, Hart takes exception to Dworkin’s having labelled him as one of those linguistic theorists guilty of the ‘semantic sting’.†
Hart denies that he ever had such a theory and says that the charge confuses the meaning of a concept with the criteria for its application. He clearly means by this the distinction that Dworkin often makes between the elaboration of a concept and a conception, with the clear implication that he (Hart) thinks that his theory allows for
Hart denies that he ever had such a theory and says that the charge confuses the meaning of a concept with the criteria for its application. He clearly means by this the distinction that Dworkin often makes between the elaboration of a concept and a conception, with the clear implication that he (Hart) thinks that his theory allows for