Essay on Master Rule for Law: Hart's Rule of Recognition

Jurisprudence and Legal Theory is a slightly different subject from most of the undergraduate subjects because there are no clearly established superior principle and binding authorities. It is more like philosophy and could be very abstract. Most law students find the subject strange, uninteresting and extremely difficult to understand. I must confess, I found it very tough too. You need to read the topics several times before you can begin to understand that it is actually a battle between natural (moral) law theory(ies) and legal positivism. Once you begin to understand the link, you will realize that it is a very interesting subject.

To help other students, I am currently working on what I will referred to “Law Student’s Review Series” to cover the subjects I studied in my final year which have no materials on the my Blog i.e. Jurisprudence and Legal, Company Law and Public International Law. Based on the request from an e-mail I received, I will start with Jurisprudence and Legal. I must however warn that the essays in the series are not substitutes for available materials on the subject. Let me repeat for emphasis YOU NEED TO READ THE TOPICS A COUPLE OT TIMES IF YOU WANT TO HAVE A GOOD GRASP OF THE LEGAL ISSUES.

THEORY ESSAY ON A MASTER RULE FOR LAW: HART’S RULE OF RECOGNITION

INTRODUCTION

It is the rule of recognition that allows an understanding of law as it concerns certain area of law (e.g. property, contracts, criminal, commercial etc). Is there one rule of recognition of law or whether there are several? Hart’s reply was that this is not important. In UK we can say what crown-in-parliaments enacts and what the common law court decides is law. “Some feature or features possession of which by suggested rules is taken as conclusive affirmative indication that is a rule of one of the group supported by social pressure it exerts”.

THE SUPREME CRITERION AND THE ULTIMATE RULE

A rule of recognition is simply a rule whose function is to identify whether or not another rule is part of the legal system. This are (1) the supreme criterion: this is part of the rule of recognition that dominates over the rest. Parliamentary enactment in the UK prevails over common law, local or general custom (2) the ultimate rule which is the rule of recognition itself because you cannot go back further than that. We can trace back the validity of bylaw to an Act of Parliament but we cannot inquire further. Hart use this to criticize Austin’s attempt to say that all law is result of legislation (in Austin’s theory of tacit consent of the sovereign). Hart say these rules are not explicitly declared in the day to day life of legal system but its existence is shown in the way in which particular rules are identified.

DEFINITION OF A LEGAL SYSTEM

The criteria for the existence of a legal system are that (1) the officials of the legal system must have the internal attitudes towards the rule of recognition of the system otherwise called unified or shared official acceptance of the rule of recognition. (2) The valid legal rules of the system must generally be obeyed by both officials and the private citizens.

CRITICISM OF THE RULE OR RECOGNITION

Finnis’s Critique: Hart leave insufficiently specified the sort of attitude towards the rule or recognition that the officials have. Finnis’s own view is that the central set of elements constituting official acceptance of rule of recognition is a moral acceptance of the rule. As a result of this he claimed to have found a conceptual, logical link between validity and morality. A similar sort of critic is to be found in the final Appendix to McCormick’s Legal Rights ad Legal Reasoning. 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 require us to make best moral sense of our legal practices. Dworkin’s criticism of the rule recognition: if we take Hart at face value (the empirical fact) to cure the defect of uncertainty, then 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 recognition). Any rule that cannot be identified with certainty is not a rule of law and so all hard cases in which what the law is controversial do not concern law – the case of vehicle prohibition from parks and roller-skates). Three things flows from this (1) the judiciary has to act as legislator to make law for the future on whether roller-skates (against what judges are supposed to be) (2) the judges characteristically then applies the law to the defendant (retrospectively) which is unfair and not how we think judges act (3) judges must continually be misdirecting what they are doing because they talk as if they were finding the law rather than legislating it. Positivism therefore fails when it comes to giving account of legal argument.

To understand Dworkin two points needed to be bear in mind (1) clear meanings are themselves only “clear’ because of some interpretation. (2) Unclear meaning really brings out the above, there is no answer to the question ‘what do vehicles include? In advance of actual example and an argument. s.51 of the Adoption Act 1951 and R v Register of Births, ex parte Smith (Smith a mentally disordered person who killed one person and tried to kill another whom he mistakenly thought were his natural mother applied for his birth certificate to know his real mother. S.51 gives him right, but the purpose is criminal and the parliament which gave him the right also prohibited aiding and abetting crime. Hart Postscript to the concept of law in which Hart counter-attacks Dworkin attack on legal positivism and his legal theory.

THE POSTSCRIPT

Hart versus Dworkin: Hart affirms that his theory intended to be both descriptive (morally neutral with no justificatory aims) and general while Dworkin enterprise is in part evaluative and justificatory and addressed to a particular legal culture and they are not in conflict but writing with different aims in mind. Harts denies that he ever had linguistic theory but concept and criteria for its application. Harts disagrees with Dworkin that the point or purpose of law of legal practice is to justify coercion. Dworkin’s concession about the flexibility of legal language strengthens rather than weakens the positivist’s case. Hart argues that he is about universal description and Dworkin about justification of coercive power. To what extent can you make sense of a human practice without being part of that practice (mathematics and mathematician), could anybody stone-deaf analyses music.

PRINCIPLES AND THE RULE OF RECOGNITION

Hart also thinks that there are no sharp distinction between principle and rule but that of specificity and perhaps weight. Riggs v Palmer (a murderer could not inherit from the estate of the person he murdered) based on clear rule of succession, but Dworkin denies such rule and say there is only a general principle (that no man should profit from his own wrong). Hart said while theoretical difference between them, they share certain basic facts of legislative history about limit to the application of judges. The main difference lies in the fact that there are few legal systems outside UK and US that take the form of all-embracing kind (holistic) form of legal reasoning Dworkin says about constructive interpretation.

JUDICIAL DISCRETION

Hart addresses how best the unregulated cases should be resolved in answering the difference between himself and Dworkin. He thinks that there are cases where judges exercise their judicial discretion by acting and judicial law-makers and does not think that his poses a great threat to democracy. The general principle is that nulla poena sine lege (no punishment without law) i.e. no one should be punished or whatever unless there is a law which prohibited the act at the time.