Why is the 'Rule of Recognition' crucial to H.L.A. Hart's theory of legal positivism?

Why is the 'Rule of Recognition' crucial to H.L.A. Hart's theory of legal positivism?

Introduction

In his famous work, 'The concept of law', Hart devised and constructed a community that has no legal system and then asked the readers to think about the different social issues that could be formed in that group. It has always been noticed that when different people come together, they form a group and this group is bound to have its own set of issues and problems. Hart suggested that by forming such a group, one could study the impact of different rules on this group by introducing different rules into this group from time to time and studying the effect and outcome. Hart emphasizes on one certain rule among the ones he discusses and this rule is known as the rule of recognition.

According to Hart, if a person is studying a 'pre-law' society then all rules in such a society are customary and not mandatory unless imposed. So, what Hart tries to suggest is that a rule in such a society would only be accepted if all the members of the society practice that rule as compulsory and accept it as a rule. Further, Hart discusses the consequences if some members of the society may choose to disagree or not follow the rule. He discusses that the behavior of people in the group might be affected if some people in the group start to decline following that rule. Hart asks the readers to imagine a society where some people want to allow two marriages whereas others believe that only one marriage should be allowed. He asks readers to imagine the social disorder and legal issues that would arise in such a society. Hart states that since the only property is the acceptance of the rule, shared by that group, there will be no other characteristic to mark the rule or something which can be pointed out by the members of the group (Sugarman & Hart, 2005).

Discussion

In his book, The Concept of Law, HLA Hart distinguishes between primary rules and secondary rules, using two different criteria of differentiation. The primary rules impose obligations while the secondary confers power. An example of a secondary rule would be one that allows judges to decide cases or Congress to make laws. The rules of criminal and civil liability cases are typically primary rules. The primary rules are about behaviors while secondary rules focus on power. Secondary rules empower individuals or groups of people to create, modify or extinguish existing standards.

Hart qualified secondary rules as follows:

Rule of recognition: Allows you to identify which rules belong to a legal system

Change Rules: Indicates a procedure to change the primary rules in the system and thus streamline the legal system

Rules of Judgment: To establish whether or not a rule can be infringed as a primary rule

Herbert Hart (1907-1992), initially from English descent and a famous philosopher of his era, is ...