Rule of Recognition

Rule of Recognition

Rule of Recognition

Introduction

The rule of recognition is such a central component of modem positivist jurisprudence that there is a danger of the phrase "rule of recognition" rolling too quickly off the tongue, allowing us to use it quite casually without proper reflection on its.

Hart on the Function of a Rule of Recognition

H. L. A. Hart introduces the term "rule ofrecognition" in a discussion of the ways in which the emergence of secondary rules might help remedy some of the inadequacies of a social regime consisting purely of primary rules.' He asks us to imagine a prelegal system consisting solely of primary rules of conduct. Such a system, he says, would suffer from a number of significant defects, one of which is uncertainty: "If doubts arise as to what the rules are or as to the precise scope of some given rule, there will be no procedure for settling this doubt.,,2 The emergence of a particular kind of secondary rule-a rule of recognition-is supposed to be the solution to this difficulty.

What exactly are people supposed to have been uncertain about? What uncertainty exactly does the rule of recognition dispel or mitigate? Or to put it another way: what does the rule of recognition recognize the rules that it recognizes as? What does it tell us about them? We should not say-as almost every legal theorist says-that it tells us they are law. For what does that mean? The rule of recognition is supposed to help us understand the idea ofa rule's being part of the law, not presuppose it. Hart's answer to these questions is given a page or so later: The simplest form of remedy for the uncertainty of the regime of primary rules is the introduction of what we shall call a "rule of recognition." This will specify 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?

I have two points to make about this, one small point and one big point. The small point is that we should assume charitably that, in this excerpt, Hart's phrase "the social pressure it exerts" refers to organized (institutionalized) social pressure including physical sanctions; otherwise the definition is way too accommodating. The positive morality of a group is no doubt supported by social pressure; yet I do not think Hart believes it is the function of a rule of recognition to recognize rules of positive morality just because the social group exerts "pressure" to uphold them. Organized social pressure has to be what we are talking about(Reidenbach 1990).

The big point is more troubling for those who want to regard the rule of recognition as the most fundamental rule of a legal system. On Hart's account, there are several kinds of fundamental secondary rules: rules of change, rules of recognition, and rules constituting institutions for ...