A CRITICAL ANALYSIS OF HART’S RULE OF RECOGNITION

1. A brief familiarity with the topic

It will be the aim of this research to present the reader with an easy blueprint to understand
the humble beginnings of Hart’s rule of recognition in analytical jurisprudence and it’s
conception in Chapter 5 of his magnum opus “The Concept of Law”. The Hart’s conception
of law is largely seen as a reactive measure to the natural law philosophist’s such as Austin,
Kelsen and his work mainly is based on demolishing their theories1.

The basic layman’s definition to understand Rule of Recognition is given by Hart as follows:

“law is best understood as the union of primary and secondary rules., the primary
rules are the rules of obligation whereas the secondary rules are dependent upon
the primary rules which allow the creation, extinction and alteration of primary
rules."

-H.L. A Hart in Concept of Law (1961).

The conception of Hart to understand the basis of the legal system evolves from a primitive to
modern understanding. He envisages an earlier society wherein the rules that existed were
customary in nature2 and had a derivative nature but the condition on it was that it was to be
followed by a majority acceptance.

The earlier notions of the nature of law gave it a rigid nature and left no scope for other
sources. Its credit goes to Austin who coined that, “Law is the Command of the Sovereign”
and it is backed by specific sanctions. However the definition has been subjected to heavy
criticism as in the example of Wills Act3 in which he argued that a sanction encompasses a
kind of infliction which is detrimental however in nullity there is no coercive force in action
and “nullity” of law cannot be treated as a sanction and falls out of the purview of Austin’s

1
Class Lectures.
2
H.L.A. HART, THE CONCEPT OF LAW 91 (Joseph Raz and Penelope Bullock eds., 2d ed. 1994).
3
Supra at 1.
definition. Thus debunking the presumption of Austin as “orders backed by threats” and
conceptualised law as a social fact which exists and it’s qualitative aspect is another.

For a better understanding of what is the rule of recognitions as described by HLA Hart, the
rule of recognition is the ultimate rule or the supreme rule of any sophisticated municipal
legal system. It confers on the legal officials a comprehensive duty to recognize and apply
certain things as valid law of their legal system. This is also one it’s greatest drawbacks as it
can be misused as it is highly dependent on the officials for it’s recognition.

It may do so by pointing to sources of law such as Hart famously quoted “whatever the
Queen in Parliament enacts is law” or to specific rules such as the famous 1966 Practice
Statement on Precedent that took place in the house of commons. More Importantly, the rule
of recognition is a form of custom/ social practice of legal officials. It is not something
created by precedent or statute, though its change may be affected by them and this is also
heavily criticized as The German War crimes trial in Nuremberg trials cannot be justified
under the paradigm of Hart’s Theory.

2. A PARALLELISM WITH THE INDIAN LEGAL SYSTEM

According to Hart, a legal system may be best considered a "union" of primary rules of
obligation or duty and secondary rules of recognition, change, and adjudication. Hart
characterizes the distinction between primary and secondary rules in the following way:

“Rules of the first type impose duties; rules of the second type confer powers,
public or private. Rules of the first type concern actions involving physical
movement or changes; rules of the second type provide for operations which lead
not merely to physical movement or change, but to the creation or variation of
duties or obligations.”

The first set of rules in Indian context can be said to be the constitutional laws, penal
laws, civil laws etc. and the the secondary rules are the rules from which they derive
their authority from. In a narrower sense we could say that Article 368 in the
constitution is a type of secondary rule which mandates the parliament to amend the
statutes they enact.
The underlying idea about Hart’s legal system is heavily based on the importance of rules
whereas it has been widely acknowledged that in modern legal systems the complications
regarding the sources of law are various and cannot be simply and rigidly put into a box of
definition. In present legal systems, written rules are complimented by Judicial Discretion,
Precedents, The Doctrine of Checks and Balances. These empower other organs which do not
per se have legislative functions as their primary goals however the are not discouraged as an
important source of law and as an aspect of the Legal System.

In countries which have the common law tradition, the rule of recognition is recognized as

the long standing judicial practice of superior courts. For example, in India, the principle that

the decision of a larger Bench of a High Court is binding on a smaller Bench would be

considered according to the Hart’s parlance a form of judicial customary rule and it becomes

a rule of recognition but the complexity of the jurisprudential question arises here that to

which extent the other sources of law are considered in hart’s system and is one of it’s

defects.

Article 141 provides that law declared by the SC is binding on lower courts. This is based on

principle of stare decisis, i.e., law settled by highest court of the land settles a question of law

and is binding on lower court. Article 141 creates precendentiary value of SC judgements and

judgments of SC are binding on lower courts even if they are considered or perceived to be

incorrect, meaning the lower courts, including the High Court of a State has to follow the

judgement and give ruling as per the principle of law laid down in the SC judgment even if

they believe that the judgement is erroneous.

3. ARTICLE 142 AND ARTICLE 368 OF THE CONSTITUTION OF INDIA

3.1 Article 142- Drastic provision to Supreme Court to formulate law in

order to do complete justice.
I will relate the Article 142, which gives a drastic provision to the Apex court to use it’s
discretion in path to justice and the doctrine of Judicial Review that puts the rules under
pressure thus defying Rules as a basis of the legal system.

The Article 142 clearly states the following:

“142. Enforcement of decrees and orders of Supreme Court and unless as to

discovery, etc.

(1 ) The Supreme Court in the exercise of its jurisdiction may pass such decree or
make such order as is necessary for doing complete justice in any cause or matter
pending before it, and any decree so passed or orders so made shall be
enforceable throughout the territory of India in such manner as may be prescribed
by or under any law made by Parliament and, until provision in that behalf is so
made, in such manner as the President may by order prescribe

(2) Subject to the provisions of any law made in this behalf by Parliament, the
Supreme Court shall, as respects the whole of the territory of India, have all and
every power to make any order for the purpose of securing the attendance of any
person, the discovery or production of any documents, or the investigation or
punishment of any contempt of itself.”

It will be pertinent to point one of the landmark instances of application of this provision by
the Supreme was in the Union Carbide case in which the principle of ‘strict liability’ relating
to the status of victims of the Bhopal gas tragedy was ascertained wherein the Court deviated
from the available provisions of law and felt a need to deviate from existing law to bring
relief to the thousands of persons affected by the gas leak in order to do justice.

In this judgment the Supreme Court awarded the victims with a compensation of $470
million where there were lacunae in the law and even went to the extent of saying that to do
complete justice, it could even override the laws made by Parliament by holding that,
“prohibitions or limitations or provisions contained in ordinary laws cannot, ipso facto, act as
prohibitions or limitations on the constitutional powers under Article 142.” By this statement
the Supreme Court of India placed itself above the laws made by Parliament or the
legislatures of the States. This again highlights that under Hart’s system Statutes had a clear
superiority over other sources however the complexity of such rules has led to a degradation
of the actual or pragmatic use of Hart’s theory and it’s application next to impossible and
almost utopian.

He distinguishes between the two concepts regarding the rule of recognition: the ultimate rule
4
and the supreme criterion. One of the above sources of legal validity can be called as
supreme if it (e.g. a statute) prevails over other rules (e. g. precedent or custom) of the legal
system (in case of a clash).5

In simple words, a custom is subordinate to a statute or the latter is superior, whereas the
former is subordinate. In case of a clash between statute and custom, the former prevails over
the latter. This is what he calls the supreme criterion.

Hart mentions that if someone asks about the validity of a bye-law, he will be told that it is
validated by the relevant Parent Act. If the person asks what validated the Parent Act, he will
be told that it is valid because it is passed by the Parliament. If he asks why the law passed by
the Parliament is valid, he will be told that ‘what the Queen in Parliament enacts is law.’ This
is the process that has been laid down to find the source of law and the source of it’s
recognition.6

Hart argues that there can be no further inquiries concerning validity because the last rule
provides criteria for the validity of other rules but “there is no rule providing criteria for the
assessment of its own legal validity.” .7This is how this last one is the rule of recognition and
the ultimate rule of the English legal system. For Hart it is important to find the existence of
the rule of recognition, its validity is a secondary issue.

In Hart’s theory we identify the law by reference to the basic rule of recognition; but we
identify the basic rule of recognition by reference to the empirical facts of official behaviour.

4
Hart, Supra 2.
5
Ibid.
6
Cl. Lec. ,Supra 1;See Also Hart.Supra 2.
7
Ibid Hart.
In this way, the content of law can be established by a purely empirical inquiry, without
asking any controversial moral questions.

The rule of recognition i.e., what the Queen in Parliament enacts is law, is neither (strictly)
law nor (strictly) fact. Because of its characteristics, it is both. It is law because it identifies
other rules of the legal system and it is a fact because its existence is an actual fact. The first
is an internal statement made by officials of the system (who use the rule of recognition to
identify other rules of the system). The second is an external statement of fact that the rule
exists in the actual operation of the system.8

3.2 ARTICLE 368 UNDER HARTS SYSTEM

Article 368 States:

“368. Power of Parliament to amend the Constitution and procedure therefore
(1) Notwithstanding anything in this Constitution, Parliament may in exercise of
its constituent power amend by way of addition, variation or repeal any provision
of this Constitution in accordance with the procedure laid down in this article”

Under Hart’s system there is a clear hierarchy of the derivation of validity from one source to
another but the hierarchy under the Indian system is very complex as the Parliament derives
it’s authority form the written constitution and is supposed to be it’s source of validity or rule
of Recognition. However, The Parliament has power to amend the constitution as well ,
which gives Parliament superiority over the constitution thus blurring the lines between them
and making it a complex question to be justified under Hart’s contentions.

4. THE CONTEMPORARY TIMES FOR RULE OF RECOGNITION AND

HISTORICAL IMPORTANCE OF 1966 PRACTICE STATEMENT OF HOUSE
OF COMMONS

It can be said that there is no existing system which is fully based on the conception of
law as envisaged by Hart. However it can be seen functioning as an element or a
8
Supra 6.
constitutive part of the legal system. It is irrational to assert that a legal system can
survive as Hart described it as there is no scope for substantive law of the judges and
the landmark case of Navtej Sing Johar in which the court differentiated between the
constitutional and societal morality also opened up a new dimension to his theory
would not have been possible if there existed a system of Hart’s preference.

It is interesting to note here the curious case of the famous 1966 Practice Statement of
the House of The Commons in which the Commons decided to move away from their
well established practice of Stare Decisis and conferred on itself to change it’s
decisions and the precedents were held to be at the mercy of the House, his in turn
defied the Hart’s concept of Law and it’s rule of Recognition.
5. CONCLUSIONS

In my conclusion after in-depth analysis of Hart’s rule of recognition and comparing it with
legal systems to find its practicality has led me to the sole conclusion that the idea of a legal
system based solely on rules is Utopian or Quixotic needless to say that it is unrealistic will
be illogical given the vast complexities of law now.

However I agree that Hart, cannot be a constitutive rule of any legal system as a whole, but
rather a constitutive rule of (primary) legal rules as elements of a legal system.9

9
Burazin, Luka, The Rule of Recognition and the Emergence of a Legal System (2015). Revus - Journal for
Constitutional Theory and Philosophy of Law (2015) 27: 115–130. Available at
SSRN: https://ssrn.com/abstract=3020248.