Rules about rules (part 3.1)

Alternative Title: Three Blind Spots with Hart’s Theory of Law

We devoted our previous two blog posts to H.L.A. Hart’s influential theory of positive law. Here, I will identify three blind spots in Hart’s theory of law. The source of all three problems is Hart’s “rule of recognition”–i.e. the secondary rule that tells us what primary rules are part of the legal system or are binding on public officials. Problem #1 is that Hart’s rule of recognition is not really a “rule” in any conventional sense; problem #2 is that, regardless of the ontological status of the rule of recognition, it is a totally circular rule; and problem #3 is that the rule of recognition is self-defeating: there can be as many valid legal systems as there are individual legal officials! Each of these problems or blind spots, individually, is enough to mortally wound Hart’s theory of law. Combined, they utterly obliterate it.

For now, let’s focus on my first objection to H.L.A. Hart’s rule of recognition–that it is not really a legal rule in any conventional sense of the word “rule.” (Alas, I wish I could take credit for this powerful objection, but during my researches for this blog post I stumbled upon this excellent 2007 paper by Julie Dickson, which was published in Volume 27 of the Oxford Journal of Legal Studies.) Why isn’t the rule of recognition really a legal rule or legal norm? Because as we saw in my previous post, the output of this so-called “rule” depends on what Professor Hart himself called “the internal point of view.” In other words, the rule of recognition is not really a rule but rather an internal psychological process.

This objection, by itself, however, is not necessarily fatal to Hart’s theory of law, for as F. A. Hayek (pictured below), Thomas C. Schelling, Elinor Ostrom, and many others have shown (beginning with the great David Hume!), many forms of coordination or spontaneous order or rules of behavior–even complex ones–can arise via an invisible hand or decentralized process. (To learn more about the emergence of informal norms or “conventions” out of an unplanned or decentralized invisible-hand process, David Lewis’s classic work, Convention: A Philosophical Study, is a must-read. See also this helpful entry on “conventions” in the Stanford Encyclopedia of Philosophy.) Also, before proceeding any further, I should also disclose that this is one of the features of Hart’s theory of law that I really admire and appreciate: how Hart’s theory–his rule of recognition, plus the internal point of view–fits into this larger research programme on social conventions and spontaneous orders.

But is Hart’s “union of primary and secondary rules” really the product of a spontaneous order or social convention among public officials? If so, how do we explain such things as “Circuit Splits” (when the courts of two different localities disagree about a particular point of law) or the common practice of “dissenting opinions” (when the judges on a single court disagree about the law)? Stay tuned. We shall explore those particular theoretical puzzles and consider my other two objections–that the rule of recognition is not only circular; it is also self-defeating–in my next blog post …

Hayek on the importance of the spontaneous order of the market ...

About F. E. Guerra-Pujol

When I’m not blogging, I am a business law professor at the University of Central Florida.
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