A Project on RULES Of RECOGNITION

SUBMITTED TO: Prof. Anirudh Prasad

Faculty: Jurisprudence I

SUBMITTED BY:
ABHINAV SHRIVASTAVA (VI Semester, Roll No.04) B.A. LL.B. (Hons.)

SUBMITTED ON:
15th April, 2010

HIDAYATULLAH NATIONAL LAW UNIVERSITY

Raipur (C.G.)

ACKNOWLEDGEMENT ______________________________________________

I feel highly elated to work on this dynamic topic on Rules of Recognition its ratio is significant in the present legal scenario. As this topic drew my attention and so I was attracted to select this as a project topic. The practical realization of this project has obligated the assistance of many persons. I express my deepest regard for our faculty Professor, the course teacher of Jurisprudence I. His consistent supervision, constant inspiration and invaluable guidance have been of immense help in carrying out the project work with success. I would like to thank the non-teaching staff for all their kind cooperation extended till the end. I extend my heartfelt thanks to my family and friends for their moral support and encouragement.

TABLE OF CONTENTS

1. Research Methodology..... 2. Chapter-1; Introduction& Explanation to Rules of Recognition..

4. Chapter-2; Reasons for accepting Rules of Recognition 8

5. Chapter-3; Relevance of Rules of Recognition in various legal systems... 11 6. Chapter-4; Criticism of rules of recognition 12 9. Conclusion..... 10. Bibliography.. 15 16

RESEARCH METHODOLOGY

This research paper is descriptive and analytical a doctrinal in approach. It is largely based on secondary and electronic sources. Books and other reference materials from the Hidayatullah National Law University library are primarily helpful for the completion of this research paper.

Chapter-1; Introduction& Explanation to Rules of Recognition

The idea of a Rule without which we cannot hope to elucidate even the most elementary form of law. It is true that the idea of rules by no means is a simple one, the need is to do justice to complexity of a legal system, to distinguish between two different but two related types. Under rules of one type, which is primary in nature, human beings are required to do or abstain from certain actions, whether they wish to do or not. Rules of other type secondary to the first, they provide that human beings by doing or saying, introduce new rules of primary type, extinguish or modify old laws. Rules of first type impose duties, rules of second type confer powers, public or private. Rules of first type concern actions involving physical movement or changes, rules of second type provide for operations which lead not merely to physical movement or change, but to creation or variation of duties or obligations. Primary Rules are also called as Rules of Obligation; Rules are conceived and spoken as of imposing obligations when the general demand for conformity is insistent and social pressure brought to bear upon those who deviate or threaten to deviate is great. Such rules may be wholly customary in origin; centrally no organized system of punishment for breach of rules, the social pressure may take only the form of a general diffused hostile or critical reaction which may stop short of physical sanctions. In respect of rule violated; it may depend heavily on the operation of feeling of shame, remorse and guilt. The fact that rules of obligation are generally supported by serious social pressure does not entail to have an obligation under rules is to experience feelings of compulsion or pressure. To feel obliged and having an obligation are different though frequently concomitant things For ex; if a gunman claps a pistol at As head, A may feel obliged to yield his purse, but he has no obligation to do so1 ,and a person had an obligation to pay the rent but felt no pressure when he made off without doing so. One is understanding the standard accepted by an actor with a view to explaining what he does and hoe he does it, while the latter is acceptance of a standard according to which people ought to act and deviations are condemned as wrong

Hart The Concept Of Law, For obligation see pg no. 228-229

doing.2A legal system, he says, consists first of "primary rules." These confer (legal) rights in duties and Hart does not try at all to eliminate such evaluative talk. Legal commands, along with enabling legislation, repealing, declaring etc., all create change or remove rights and duties. They do this whether or not they are backed by punishment. The primary rules are valid if they follow from what Hart calls "secondary rules." Secondary Rules ; We can view the evolution of a secondary rule structure as a sign a legal system is maturing, as the secondary rules provide remedies to the three main defects of primary rules of obligation, the defects are; uncertainty, static quality, and inefficiency, and remedies of these defects are by introducing rule of recognition this will specify some features or feature possession of which by a suggested rule is taken as a conclusive affirmative indication, as it gives an authoritative mark,3 but in early societies authoritative rule or text is to be found in written document or carved on some public monument, but still it was a crucial step, because it was a rule of conclusive identification of primary rules of obligation, though a simple form of secondary rule but authoritative. By providing authoritative mark, it introduces although in embryonic form the idea of legal system; for the rules are now not a discreet unconnected set but are in a simple way, unified. Rules of Recognition will specify enactment as a unique identifying mark or criterion of validity of the rules. Remedies for static quality and inefficiency are rules of change and adjudication. The secondary rules fall into three categories which remedy what Hart portrays as three "weaknesses" of primitive law.
1.

The rules of recognition counter the vagueness and uncertainty of traditional law. It

gives some explicit criteria for determining what counts as a primary legal rule. Usually it is inclusion in some canonical collection of promulgated laws. In English systems, the rule of recognition includes (somewhat vaguely) the previous decisions of judges. In primitive systems, this secondary rule is implicit, vague or simply absent.
2.

Primitive systems also are very slow to change and adapt their laws. Developed or

evolved systems have rules of change which counter this inflexibility. They make it explicit how the law can be changed. These are legislative procedural rules
2 3

MacCormick Legal Reasoning and Legal Theory pp 274. The Concept of Law, H.L.A Hart, pg. 112.

3.

Finally, developed systems have rules of adjudication to counter the inefficiency of

private enforcement and the vendettas and feuds which result. This usually means setting up dedicated institutions (courts) together with rules for their operation in determining guilt and interpreting statutes. Hart has recourse to an "internal-external" analysis. The point of view for validity is internal. When we judge a law valid, we do so from the perspective of a member of the legal community-we take the secondary rules for granted. The secondary rules do not follow from any other rules. We can only "justify" them from the outside. Externally, then, Hart treats the normative status of secondary rules as a question "closed on fact." The fact is the fact of implicit internal acceptance. That a secondary rule is accepted is an external, descriptive fact. Inside the system, we view the secondary rules as norms. Outside (from the point of view of the sociologist) is only descriptive fact. This makes Hart's theory useful for analytic/scientific purposes. Crticism of Austins concept of Law as Command of Sovereign Hart argues that the foundations of a legal system do not consist, as Austin claims, of habits of obedience to a legally unlimited sovereign, Hart criticizes the concept of law that is formulated by John Austin4 and that proposes that all laws are commands of a legally unlimited sovereign. Austin claims that all laws are coercive orders that impose duties or obligations on individuals. Hart says, however, that laws may differ from the commands of a sovereign, because they may apply to those individuals who enact them and not merely to other individuals. Laws may also differ from coercive orders in that they may not necessarily impose duties or obligations but may instead confer powers or privileges. In Harts own words5One of the central thesis of this book is that foundation of a legal system consist not in a general habit of obedience to a legally unlimited sovereign, but in an ultimate rule of recognition providing authoritative criteria for the identification of valid rules of a system Laws that impose duties or obligations on individuals are described by Hart as "primary rules of obligation." In order for a system of primary rules to function effectively, "secondary rules" may also be necessary in order to provide an authoritative
4 5

The Province of Jurisprudence Determined (1832) Hart does not provide any detailed lists citing examples of primary or secondary rules, and limits his analysis only to general discussion of them. See generally, H.L.A Hart, The Concept of Law (Oxford; O.U.P. 1961) pg 245

statement of all the primary rules. Secondary rules may be necessary in order to allow legislators to make changes in the primary rules if the primary rules are found to be defective or inadequate. Secondary rules may also be necessary in order to enable courts to resolve disputes over the interpretation and application of the primary rules. The secondary rules of a legal system may thus include 1) rules of recognition, 2) rules of change, and 3) rules of adjudication There are two minimum requirements which must be satisfied in order for a legal system to exist: 1) private citizens must generally obey the primary rules of obligation, and 2) public officials must accept the secondary rules of recognition, change, and adjudication as standards of official conduct.6

Chapter-2; Reasons for accepting Rules of Recognition

Legal Reasons for Accepting the Rule of Recognition A judge who identifies a legal rule as valid and applies it in a case before him does not regard himself as making a prediction that the rule will be enforced by himself and by other judges (although in normal circumstances he presupposes that it will), but is treating that rule as a reason for his decision, and will regard his decision as legally justified because it is made according to a legally valid rule.7 The role which the rule plays in the judge's practical reasoning processes and the attitude which he adopts towards that rule are grossly misrepresented by reducing claims of legal validity to predictions about what will and will not be enforced by legal officials. According to Hart, then, if a rule is legally valid, this supplies a judge with a legal reason or a legal justification to follow it and apply it in cases coming before him. Hart further explains that a legal rule is valid if it conforms to a criterion of validity provided by another rule of the system. He gives as an example a by-law of Oxfordshire county council which will be valid if it was made in accordance with the procedure specified by the relevant statutory order made by a government Minister8. If we then ask why this statutory order is itself valid, or why it is legally justified for a judge to take it, and the by-laws created in accordance with it, as part of the reason for his decision,
6 7

Ibid. pg. 116 Hart at allows for possible exceptions, for example in cases where, perhaps for teaching purposes, it would be useful and meaningful to use the terminology of validity even when speaking of a legal system long since defunct, such as Roman law; see Hart, The Concept of Law, above n 5 at 105 8 Ibid at 107

we will be directed to another rule further up the hierarchy, i.e. to the statute empowering the relevant minister to make such statutory orders. Likewise, the validity of that statute, or the reasons why, legally speaking, a judge ought to apply it, can be traced to the rule that, in the English legal system, what the Queen in Parliament enacts is law. This rule, however, forms part of the rule of recognition of the English legal system.9 If, therefore, we ask why the rule that what the Queen in Parliament enacts is law is valid, then, according to Hart: ... we are brought to a stop in inquiries concerning validity: for we have reached a rule which, like the intermediary statutory order and statute, provides criteria for the assessment of other rules; but it is also unlike them in that there is no rule providing criteria for the assessment of its own legal validity.10 The rule of recognition provides the criteria of validity of other legal rules, but there is no rule in virtue of which the rule of recognition itself can be accounted as valid. The rule of recognition is therefore the ultimate rule of a legal system,11 and, as such, there are no criteria providing for its validity: No such question can arise as to the validity of the very rule of recognition which provides the criteria; it can neither be valid nor invalid but is simply accepted as appropriate for use in this way.12 Non-Legal Reasons for Accepting the Rule of Recognition We can ask whether it is a satisfactory form of legal system which has such a rule at its root. Does it produce more good than evil? Are there prudential reasons for supporting it? Is there a moral obligation to do so? These are plainly very important questions; but ...13 The but is significant here; for Hart goes on to make the point that once we have moved to asking such questions, we are no longer concerned with legal validity, or with legal reasons for adhering to the rule of recognition: So too when we move from the statement that a particular enactment is valid, to the statement that the rule of recognition of the system is an excellent one and the system based on it worthy of support, we have moved from a statement of legal validity to a statement of value.14

Reference to the English and not UK legal system in order to avoid the complications which arise from the fact that the UK is a multi-legal system state. 10 Hart, The Concept of Law, above n 5 at 107 11 Ibid at 107 12 Ibid at 109 13 Hart, The Concept of Law, above n 5 at 107 14 Ibid at 108.

Hart regards his remit in the book as being to explain the distinctive structure of municipal legal systems,15 and he contends that such systems can be analysed in terms of a union of primary and secondary rules, wherein the primary rules are by and large obeyed by the bulk of the population, and the officials of the system accept and follow the secondary rules including the rule of recognition. Hart's view seems to be that these features of law can be explained adequately without delving into the issue of what, if any, further non-legal reasons officials have for such acceptance.16 As a result, practically the only remarks which Hart makes in the 1st edn of the book concerning non-legal reasons for accepting the rule of recognition are negative ones: he is at pains to point out that such acceptance need not entail regarding the law as morally justified: ... it is not even true that those who do accept the system voluntarily, must conceive of themselves as morally bound to do so. In fact, their allegiance to the system may be based on many different considerations: calculations of long-term interest; disinterested interest in others; an unreflecting inherited or traditional attitude; or the mere wish to do as others do. There is indeed no reason why those who accept the authority of the system should not examine their conscience and decide that, morally, they ought not to accept it, and yet for a variety of reasons continue to do so.17 It seems that, for Hart, these various possible reasons for treating the rule of recognition as binding (including the belief that the system is morally justified), interesting though they may be, do not need to be investigated in order to elucidate the distinctive structure of legal systems and hence further discussion of them does not feature amongst his principal tasks in. So long as the bulk of the population obey the primary rules, and officials of the system accept and treat as binding the rule of recognition and other secondary rules for some reasonand such reasons may vary considerably from official to officialthen we have a legal system on our hands, which is what Hart is seeking to explain.18

Chapter-3; Relevance of Rules of Recognition in various legal system

15 16

Ibid at 17 Of course, Hart discusses far more in The Concept of Law than is mentioned above. My point is merely that there are some questions which he does not believe it is necessary to engage with in order to explain those important features of law elucidated in the book 17 Hart, The Concept of Law, above n 5 at 203 18 Cf. J. Finnis, Natural Law and Natural Rights (Clarendon Press, 1980), Ch. 1 who takes Hart to task for failing to identify one such reason as primary and elucidate law in terms of it

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Relevance in Indian Constitution- Hart is most appropriate one for modern constitutional system, as Hart replaced the images of power and violence in jurisprudential imagination by conceiving law as a system of rules upon rules of social practices informed by their own criterion of validity and normative obligation. Hart spoke of the shared acceptance of rules. The law it seemed belong to us all; legal rules were not to be seen as external forces upon us but as our resources.19 The Constitution of India is ultimate Rule of Recognition. Although under Article 51 of Indian Constitution, it is provided that state shall endeavour to promote international peace and security and respect its international obligation yet no rule of international law which is in conflict with the Indian Constitution can be binding on the Indian people and courts. Primary rules of obligation in the Indian legal system include custom which are recognized by courts and various statutes. Although, the Privy Council in case of Collector of Madura v Matoo Ramalinga20 ruled that in Hindu law a clear proof of custom overrides the written text of law, the situation has changed after independence. Only the customs which are recognized and accepted by parliament or courts have force of law. Pre-constitutional laws are given recognition by Article 372 of the Indian Constitution but subject to the provisions of. Constitution. In modern legal system, the rule of recognition is not stated but its existence is shown in which particular rules are identified either by courts or other officials or private persons or their advisors. Parliaments power to amend the Constitution is subject to substantive as well as procedural limitation. Court pointed out substantive limitation in Keshavananda Bharti v Union of India21 as principles of basic structure. Basic structure in simple terms can be said to indicate what Parliament, a creation of the Constitution cannot do. In other words, power of Parliament to amend the Constitution is only limited to the areas outside the sphere of basic structure. It is the core of ultimate rule of recognition. It tells what the ultimate rule of recognition does not give to Parliament ex. Conflict with separation of power and federalism to hold this will be beyond the powers of the judiciary under the ultimate rule of recognition, if these do not exist the legal system would not survive and by enunciating the basic structure the judiciary is pointing towards these rules. The Indian legal system is a fairly developed legal system comprising of both, primary rules
19

Wayne Morrison, Jurisprudence; From the Greeks to Post-Modernism[Lawman(India) Private Ltd. New Delhi, 1997], 352 20 (1868) 21 MIA 397(PC) 21 (1973) 4 SCC 225

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of obligation and secondary rules of recognition. While primary rules consist of various statutory laws and recognized customs, secondary rules are contained in Constitution of India. As it is We The People Of India who have framed the general legal framework of our country and therefore feel under an obligation to comply by it. The general legal framework is the source of validity or the rule of recognition for other rules and governmental action. Relevance of Rules Of Recognition in International Law International law is described by Hart as problematic, because it may not have all of the elements of a fully-developed legal system. International law may in some cases lack secondary rules of recognition, change, and adjudication. International legislatures may not always have the power to enforce sanctions against nations who disobey international law. International courts may not always have jurisdiction over legal disputes between nations. International law may be disregarded by some nations who may not face any significant pressure to comply. Nations who comply with international law must still be able to exercise their sovereignty.22 But, in recent years the development of principle of jus cojens in international law can be called a development towards the formulation of secondary rule of recognition.

Chapter-4; Criticism of rules of recognition

Dworkin launches a ferocious attack on Harts model, based on a distinction between legal rules and legal principles. He denies Harts claim that we can work out what the existing law is by reference to the basic rules of recognition. In words of Dworkin23 When lawyers reason or dispute about legal rights and obligations, particularly in those hard cases when our problems with these concepts seem to be most acute, they make use of those standards that do not function as rules. Dworkin criticizes rules of recognition by discussing a United States case Riggs v Palmer24 in this case, the murderer claimed he was entitled to inherit under the will of the victim, his
22

http://www.hku.hk/philodep/courses/law/Hart%20hnd05.htm

23

R.M Dworkin, Is Law system of rules?, The Philosophy of Law [ R.M Dworkin(Edn). Oxford O.U.P. 1977] p. 245 24 115 NY 506, 22 NE 188 (1889)

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grandfather. The will was valid and was in the murderers favour. Existing rule of testamentary succession contained no exception relating to such a case. The court decided, however, the application of a rule was subject to fundamental maxim of common law including the principle that no man shall be permitted to take advantage of his own wrong, or to acquire property by his own crime and held that murderer was not entitled to the inheritance. Dworkin claimed that the decisive consideration in abovementioned cases were principles, not rules. In Riggs, the principle that no man may profit from his own wrong was weighed against considerations favouring literal interpretation of statutes and was deemed to weigh more. According to Dworkin principles play an essential part in arguments supporting judgment and particular legal rights and obligations. After the case is decided we may say that the case stands to a particular rule, but the rule does not exist before the case is decided, the court cites principle as its justification for adopting and applying a new rule. Now, if we accept Dworkinian analysis it becomes clear how Harts theory cannot accommodate principles. Dworkin stresses that legal principles cannot be identified by reference to anything resembling Harts rule of recognition. He says that a principle may already be a existing legal principle if one can show that the principal provides an appropriate justification for a number of established black letter rules and decisions. For ex; No man shall profit from his own wrong, such principles may not determine a particular decision, but thet do have some influence and cannot be ignored. In tis sense we may say that principles are binding on judicial decisions. Principles supplement rules; they provide guidance for judicial discretion; and they operate to eliminate indeterminacies. Thus Dworkin famously argues, if principles are not part of the law, rules are not binding, and if we reject the idea that legal principles form a part of law, the positivist view of law as black letter rules is reduced to a through going rule scepticism25 Introspection on rules of recognition It is very true about rules of recognition that its introduction gives effectiveness and strength to the primitive laws and its introduction makes primitive society to enter into a modern form of legal system, but then it does not gives the importance to principles which I think
25

Rule Scepticism or Legal Realism holds, it will be remembered, that rules are of no real importance and the judjes may set aside the established law whenever they think it best on the whole to do so. That judges are not bound by the rules at all. See, generally, K.N Llewellyn The Normative, the Legal and the Law- Jobs; The Problem of Juristic Method. 49 Yale Law Journal (1972), p. 855.

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supplement rules, and has been decisive consideration in land mark cases, and based on these principles certain principles and provisions in the law has been enacted, Like in case of Donoghue v Stevenson26 in which Lord Atkin gave the neighborhood principle that you must love your neighbor here neighbor is the person towards whom your duty is to take reasonable care, so in this case the concept of liability of manufacturer towards its customer came into being, and based on this principle the Consumer Protection Act, 1986 was enacted and came into force, and rules of recognition talks only about rules and does not give any importance to principles. Further criticism of rules of recognition could be made in refrence of environment laws legislations, as in environmental laws, it is the rules which confer rights and duties, but as per H.L.A Hart it is only laws which confer rights and duties and not the rules. So, Harts view does not work in environmental legislations.

Conclusion
Though being criticized the importance of rules of recognition can not be neglected as it specify some features possession of which by a suggested rule is taken as an affirmative indication. Hence it can be said that rules of recognition is an ultimate rule. Further, it also makes improvement on Austins concept of sovereignty i.e on sovereign giving command to own-self, by the concept of rules of recognition, which create certain institutions in order to make rules, rules which creates obligations and from which we derive authority and hence binding, and a body to decide disputes i.e judiciary. It is the rules of recognition which established that authority of law is in the rules and not in coercion, which has now been accepted in each and every legal system. It is
26

(1932),AC 562 (HL).

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the rules of recognition which counters the uncertainty, vagueness, and static quality of primary rules, as by creating new primary rules of recognition, they modify ,repel, rectify rules of recognition, they used to identify as to which primary rule is a part of system. It is the union of primary rules with secondary rules that a legal system becomes valid. Hence, it is by the rules of recognition a primitive society steps into a mature legal system of modern society. Moreover, it is the slogan We The People Of India who have framed the general legal framework of our country and therefore feel under an obligation to comply by it. The general legal framework is the source of validity or the rule of recognition for other rules and governmental action. Even in international law the development of principle of jus cojens in international law can be called a development towards the formulation of secondary rule of recognition. Hence, its importance has been recognized in each and every legal system and it can be rightly concluded that rules of recognition are heart and soul of any legal system.

Bibliography

Books Referred: 1. Jules Coleman, Harts Postscript, Essays on the Postscript to the Concept of Law, Oxford University Press. 2. Coubrey Hidaire Mc.., Jurisprudence by Coubrey Hidaire Mc., 1983. 3. Christie C. George, Martin H. Patrick, Text and Reading on Philosophy of Law, Second Edition. American casebook seris, West Group Publication. 4. Mahajan, V. D., Jurisprudence & Legal Theory, Eastern Book Company, 5th Edition.
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5. Weir Tony, A case book on Tort, Ninth Edition, Sweet and Maxwell( A Thomson Company) 6. Hart, H.L.A, The Concept of Law, Oxford( O.U.P) 1961. Dictionaries Referred: 1. Garner A. Brayan, Blacks Law Dictionary, 7th edition, Western Group Publication 2. Judy Pearsall, Concise Oxford English Dictionary, 10th edition, Oxford Press 3. Rutherford Leslie, Osborns Concise Dictionary,8th edition, Universal Law Publication

Websites Referred: 1. www.google.co.in 3. www.wikipedia.com 4. www.ebcindia.com

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