What is the rule of recognition?

H.L.A. Hart, answered from the texts and cited to the page.

H.L.A. Hart answers

The rule of recognition is the ultimate secondary rule of a legal system — the rule that specifies the criteria by which all other rules of the system are identified as law. Its most important feature, often missed, is that it typically operates without being formally stated. Its existence is shown, not proclaimed: we see it in the way courts, officials, and private persons actually go about identifying particular rules as belonging to the system.¹

The scoring rule of a game is a useful analogy here. In the course of play, the rule defining what counts as a goal or a run is seldom recited; it is simply used by officials and players in picking out the phases of play that count towards winning.¹ The rule of recognition works in exactly this way — silently, through its applications. Those who use the rule of recognition in this manner manifest what I called the internal point of view: they accept the rule as a guiding standard and apply it as their own, rather than merely observing that others happen to follow it.¹

The characteristic expression of this attitude is something like "It is the law that..." — the language of someone assessing a situation by reference to rules he acknowledges as appropriate, in the way an umpire says "Out." The structure of the rule of recognition is best grasped by following a familiar chain of legal reasoning.¹ Is this by-law of the Oxfordshire County Council valid?

Yes, because it was made in exercise of powers conferred by a statutory order. Is the statutory order valid? Yes, by reference to the statute empowering the minister. Is the statute valid? Yes, because what the Queen in Parliament enacts is law. And there the chain of validity-inquiries stops — not because we have found a higher rule against which to test this one, but because we have reached a rule that provides criteria for assessing the validity of all others while itself having no rule above it that performs the same service for it.²

In modern legal systems the rule of recognition is not simple but complex, since several criteria of legal validity are typically in use simultaneously. In English law, for instance, law is identified both by reference to judicial precedent and by reference to parliamentary enactment — distinct criteria ranked in order of relative subordination and primacy, with precedent subordinate to statute.³

The reason for still speaking of a single rule, notwithstanding this multiplicity, is that these distinct criteria are unified by their hierarchical arrangement.³ The rule of recognition also exhibits the open texture that affects all rules framed in natural language. It has its settled core — the cases where everyone agrees on what counts as a valid source of law — and its penumbra of doubt, where the criteria themselves are uncertain and no uniquely correct answer exists until a court has ruled.³

When courts do so rule, they modify or develop this most fundamental rule of the system.³ One further distinction matters greatly, and it is one that some writers have obscured. When a lawyer or judge says that a particular statute is valid because it satisfies the rule of recognition, she is making an internal statement of law — expressing the point of view of one who accepts the rule of recognition and uses it.

When an observer of the system says that courts and officials in England in fact use this rule as their ultimate criterion, she is making an external statement of fact — one that could be made even by someone who did not accept the system at all.⁴ These are different kinds of claim, and conflating them produces the misleading suggestion that the rule of recognition is "assumed" or "postulated" in some quasi-Kantian sense, as if it were a presupposition of legal cognition rather than a social fact about what officials do.⁴

Sources

1. For the most part the rule of recognition is not stated, but its existence is shown in the way in which particular rules are identified, either by courts or other officials or private persons or their advisers... the rule of recognition of a legal system is like the scoring rule of a game. In the course of the game the general rule defining the activities which constitute scoring (runs, goals, &c.) is seldom formulated; instead it is used by officials and players in identifying the particular phases which count towards winning.

   The Concept of Law, p. 112

2. Finally, when the validity of the statute has been queried and assessed by reference to the rule that what the Queen in Parliament enacts is law, we are brought to a stop in inquiries concerning validity: for we have reached a rule which, like the intermediate statutory order and statute, provides criteria for the assessment of the validity 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.

   The Concept of Law, pp. 116–117

3. It is complex because in modern legal systems not one criterion but several criteria of legal validity are used... These are distinct criteria ranked in order of relative subordination and primacy: precedent is subordinate to statute in the sense that common law rules may be deprived of their status as law by statute... I drew attention to the fact that the feature of open-texture which affects all rules is present also in the case of the rule of recognition. This, too, has its 'penumbral' area as well as its firm, well-settled 'core'.

   PART V, p. 368

4. when we move from saying that a particular enactment is valid, because it satisfies the rule that what the Queen in Parliament enacts is law, to saying that in England this last rule is used by courts, officials, and private persons as the ultimate rule of recognition, we have moved from an internal statement of law asserting the validity of a rule of the system to an external statement of fact which an observer of the system might make even if he did not accept it.

   The Concept of Law, pp. 117–118