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Dummies' Guide To Hart Chapter 6
Dummies' Guide To Hart Chapter 6
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, who themselves blatantly obey no one (Hart Chapter 2). Hart feels that
this theory is incapable of accounting for some of the salient features of a modern
municipal legal system.
However, he recognises that these truths can only be clearly presented, and their
importance rightly assessed, in terms of the more complex social situation where
a secondary rule of recognition is accepted and used for the identification
of primary rules of obligation.
o This points to 3 important aspects of the ROR:
1. That it identifies primary rules of obligation
a. Recall Chapter 5, where Hart discusses a simplistic kind of society
where the only means of social control is by way of social
custom, which in Harts words are primary rules of obligation. Hart
notes that a disadvantage of such a system is that there is
uncertainty surrounding the precise scope of such rules. Hence,
Hart states that the Rule of Recognition can help to identify such
primary rules of obligation.
2. That it is a secondary rule
a. Hart argues that while primary rules are concerned with the
actions that individuals must or must not do, these secondary
rules are all concerned with the primary rules themselves.
3. That is it accepted and used.
a. Here, Hart is referring to his discussion of social rules in Chapter
4.
b. Austinian model of sovereignty that people have a habit of
obedience to a sovereign person. Hart feels that this fails to
explain the continuity of legislative authority, i.e. the transition
from one sovereign to another.
How does this play out in real life? We are given authoritative criteria for
identifying primary rules of obligation. E.g.
o Reference to an authoritative text
o Legislative enactment
o Customary practice
o General declaration of specified persons
o Past judicial decisions in particular cases
Modern legal systems in identifying law:
o Variety of sources of law
o Rule of recognition is thus more complex
Benjamin Soh | Nicola Volpi | Pearlynn Wang
Subordination and Derivation in ROR the Internal and External Points of View
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Hart also argues that ROR explains the relationship between validity and efficacy.
To Hart, the confusion/doubt/uncertainty surrounding the concept of legal validity
is gone when you can distinguish between:
1. Personally accepted ROR in internal statements
2. External statement of fact that a ROR is accepted by others
What then is legal validity?
o Hart: To say that a given rule is valid is to recognise that it satisfies all the
criteria provided by the ROR and is therefore a rule of the legal system.
o Then, Hart explores the relationship between the validity of law and
the efficacy of law (i.e. how effective/successful the law is).
Efficacy that a law is obeyed more often than it is disobeyed
Ergo, Hart feels that there is no necessary connection between
validity and efficacy.
Hart feels that the only time that efficacy is related to validity is
when the legal system provides that: A rule is no longer a rule of the
legal system if it stops being efficacious.
Furthermore Hart states: 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 a system is generally efficacious.
o But, it is wrong to say otherwise: that validity means efficacy.
o Eureka moment: So, if you can understand the relationship between an
internal statement of fact that a legal system is generally valid and the
external statement of fact that a legal system is generally efficacious, then
we can understand the common theory of asserting the validity of a rule
to predict whether it would be enforced by the law (if you think about
it, we do it not just as law students in law school, but also general
laypersons in deciding how to live their lives).
Also, the ROR provides the criteria by which the validity of other rules in the
system is assessed.
o The ROR is the ultimate rule, where are are several criteria ranked in order
of relative subordination and primacy
Amongst the criteria is supreme.
What is a supreme criterion?
o A criterion of legal validity or source of law is supreme if the rules identified
by reference to it are still recognised as rules of the system, even if they
conflict with the rules identified by reference to the supreme criterion.
E.g. Say there is an act titled XYZ Act. This Act not subject to any
constitutional limitation. This Act is also able to deprive all other rules
of law their status as law. Then, it is part of the ROR that in such a
system that enactment by XYZ Act is the supreme criterion of validity.
Such examples are apparent in UK according to its constitutional
theory, and even in the US where it does not have a constitution but it
contains an ultimate ROR, which provides a set of criteria for legal
validity, one of which is supreme.
9. The ROR is a legal rule in the sense that it provides the ultimate criteria for the
identification of rules as legal rules, but it other respects, it is a matter of fact.
10.A legal system consists of a ROR and all of the rules identified by it (i.e. al the rules
trace their validity back to the ROR).
11.A legal system exists when the ROR is accepted and followed and the rules
identified by it are sufficiently effective.
12. Officials must follow and accept the ROR, whereas non-officials need only follow
the rules identified by the ROR.
II.
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III.
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