I introduced H.L.A. Hart’s influential theory of positive law in my previous post. Specifically, we saw that Hart famously defined “law” as the union of primary and secondary rules: the primary rules are “the rules of the game,” i.e. rules of conduct that impose duties or confer powers on people, while the secondary rules are second-order meta rules about the primary rules, or “rules about rules,” including rules of change, rules of dispute-resolution, and rules of recognition. And we concluded our summary of Hart’s theory of law by asking, what is the source of these secondary rules themselves?
Here is where H.L.A. Hart’s theory gets extremely interesting. According to Hart, the ultimate source of all law is the mental attitude or mental disposition of those public officials whose job it is enforce the law (e.g. policemen), change the law (e.g. legislators), or decide disputes about the law (e.g. judges). This is why Hart’s third (and most important) set of secondary rules is often called, in the singular, the “rule of recognition.” In addition Hart famously referred to his psychological or sociological explanation of law as “the internal point of view” because, on Hart’s view, “law” is whatever public officials recognize as law, i.e. as imposing binding duties on them. (See, e.g., Scott J. Shapiro, “What is the internal point of view?,” Fordham Law Review, Vol. 75 (2006), pp. 1157-1170, available here.)
Notice how, in some respects, H.L.A. Hart’s “rule of recognition” looks a lot like Hans Kelsen’s “basic norm.” To begin with, the rule of recognition determines which primary rules are valid and binding on public officials, so this secondary rule plays a pivotal role in Hart’s theory of law, just as the basic norm plays a key role in Kelsen’s theory of law. But here is where any similarity between them ends. Unlike Kelsen’s basic norm, which was entirely fictional and thus untestable, Hart’s rule of recognition is oh so very, very real: it is a “social fact” with psychological and sociological features that can be observed, measured, and tested.
To sum up, Hart’s theory of law is a major achievement in legal theory. For Hart, “law” is neither based on external commands nor grounded in fictional norms; “law” is not a brooding omnipresence in the sky, to borrow Oliver Wendell Holmes’s haunting phrase. Instead, law is a social fact: law is whatever the public officials of a given legal system think law is. As a result, Hart ended once and for all the idea of law as a separate domain of knowledge, for Hart’s theory of law is psychological to the extent we must explore the mental attitudes or mental dispositions of public officials in order to understand what the law is, and his theory is also sociological to the extent these pubic officials form a class of like-minded of individuals who share similar attitudes and dispositions.
Ok, now that we have built up Hart’s highly original, parsimonious, and fruitful theory of law, we will nevertheless do our level best to tear it down in our next few posts before going on vacation for the rest of July …