This is an extract of our Legal Validity document, which we sell as part of our Jurisprudence Notes collection written by the top tier of Oxford students.
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NB: 'GD' means 'Great Debates' by Sandy Steel and Nicholas McBride
Three main theories of legal validity:
(1) Hart: Rule of Recognition
(2) Dworkin: Theoretical disagreement / grounds of law
(3) Raz: Sources thesis
What are 'social facts'?
'Social fact' in the context of legal validity is best understood negatively, excluding morality as a factor which determines whether or not a norm counts as a legal norm.
Viewing the term in this sense highlights why the legal validity debate is so significant - the fears of an unelected judiciary imposing their morality through decision-making.
1. Hart - The rule of recognition
Hart: A legal system consists of the union of primary and secondary rules.
(a) Primary rules - those regular laws which guide the conduct of citizens, e.g. OAPA.
(b) Secondary rules - control and determine the content of primary rules.
o Three types: rule of recognition, rule of change, rule of adjudication.
For Hart, there are two minimum conditions necessary and sufficient for establishing the existence of a legal system:
(a) A habit of private obedience (primary rules are generally obeyed)
(b) A common standard of official behaviour (secondary rules are accepted as common public standards of official behaviour by officials).
a. The officials of a system will adopt an "internal POV" such that the RoR is an official custom à the ordinary citizen's contribution need be no more than passive compliance b. Mere agreement (as opposed to an official rule) as to the ultimate criteria for determining legal validity would be insufficient due to the rapid change which it would regularly undergo.
The RoR is a secondary rule which determines when something is a valid primary rule.
(a) There is no test of validity for the RoR because it is an ultimate rule. The content of the RoR is a matter of social fact - it is simply what the judges agree upon. The RoR is not 'valid', it simply exists as a social rule (see Social Rule Thesis).
a. What the RoR is must depend on social criteria.
i. Cannot be legal because the chain has to end somewhere.
ii. Cannot be moral because, Hart thinks, it is important to keep questions of validity and questions of merit separate; were the criteria moral, it would be impossible to have morally corrupt laws. b. Shapiro poses the chicken and the egg criticism: if you can't have a RoR
without legal officials, where did the legal officials come from?
i. GD answer that as a primitive society gradually develops into a complex society, rules of adjudication will slowly develop to respond to breaches of primary rules. The officials and RoR will develop side by side.
(b) The RoR also states the supreme criterion: rules identified by reference to the supreme criterion will still be recognised as valid laws and take precedence over other rules (e.g. rules enacted by Parliament will take priority over CL rules).
Hart posits two difficulties faced by a coercion-based model of the law, which a model based on the union of primary and secondary rules model does not face:
(a) Classification - The RoR does not fall in to other of the readily recognised categories of law which make up a legal system (laws and conventions)
a. There are two important ways in which the rule of recognition is viewed which help us in understanding its classification:
i. Internal point of view - statement of validity made by those who use the rule of recognition in identifying the law ii. External point of view - statement of fact that the rule exists in the actual practice of the system
(b) Existence - There is vagueness surrounding the assertion that a legal system 'exists'
a. Austin's conception of law as imposing obligations or duties which should generally be obeyed is concerned only with the end product of a legal system: primary rules.
i. Austin completely overlooks the other half of 'official' activity in lawmaking, where there cannot be said to be any 'obligation' but rather conformity to the procedural rules.
b. A union of primary and secondary rules only constitutes a legal system when the above requirements of (a) private habitual obedience, and (b) an accepted official standard by officials, are met.
The soft / hard positivist debate
General positivist view: Legal rules can be identified by tests to do with the manner in which they were adopted or developed (i.e. 'pedigree' or social fact). Moral considerations are not necessary to a RoR.
i. Soft/inclusive positivist (Hart): The RoR can make legal validity dependent upon conformity to certain moral principles, but it does not have to.
a. A RoR could do this in two ways: 'law bounded by morality', where a rule with a particular pedigree is valid unless it violates a moral standard, or
'law generated by morality', where a rule is valid if it satisfies a test requiring one to evaluate the content of the rule. i. Dworkin criticised the soft positivist view, claiming that it was inconsistent with positivism. He gave two reasons for this:
1. Uncertainty - Positivism aims to provide reliable standards of conduct which can be identified with certainty. If the
RoR can incorporate moral principles, it ceases to provide certainty.
a. Hart: Positivism does not aim to dispose of all uncertainty; some is desirable so judges can make an informed decision on unforeseeable cases.
2. Shared Acceptance - Positivists contend that the RoR
owes its existence to the shared acceptance by judges
(see SRT below). But if the RoR contained moral criteria for validity, judges would disagree about what laws are valid due to their different moral values.
ii. Hard positivist (Raz): Raz adopts the sources thesis (see below for full theory). As a result, he claims that the existence and content of law can always be determined by reference to its social facts without recourse to moral argument.
a. He says that the criteria for legal validity cannot include conformity to moral principles, for then law fails to be an authority. Law necessarily claims to be a legitimate authority. If the RoR could make legal validity dependent on morality, the law fails to guide people's behaviour and so cannot be an authority.
i. GD: Raz's objections work against law generated by morality, but not law bounded by morality. If a legal system states that 'rules enacted by Parliament will be valid unless they are unfair' then the fact that a rule is liable to be struck down if it is unfair does not prevent it from being authoritative (at least until it is struck down).
ii. GD: Raz dismisses that judges frequently do resort to moral considerations when determining what the law says, e.g. the
1. Raz: (1) Courts only refer to moral considerations when exercising their discretion to make law - not when they are determining what the law is. (2) Reference to moral considerations in a given case does not make morality part of the rule (King Midas point).
DWORKIN'S OBJECTIONS TO HART'S RULE OF RECOGNITION:
1. Dworkin's early objection: Legal principles
Legal principles are unarguably a part of the law. This can be seen by lawyers and judges' appeals to legal principles and not just black-letter laws (i.e.
precedents and statutes). Hart's RoR does not account for legal principles. No test of pedigree can identify legal principles - they are created by the judiciary over time. They find institutional support in case law and statutes but they are never 'enacted'. Further, no test can distinguish principles that judges count as law from those that judges do not count as law.
i. Hart: Legal principles have two roles in law:
1. The existing law - Hart says some principles are already part of the existing law and can be accommodated by the RoR.
Though these principles may not always reach a determinate result on a particular legal question, in which case there will be a gap in the law…
a. Hart: Dworkin ignores that many principles owe their status to 'pedigree', e.g. Constitutional principles. The inclusion of legal principles as part of the law requires the acceptance of the doctrine of the RoR to identify the 'settled law'. Otherwise how does Dworkin identify what the 'settled law' which he applies the interpretive method to is?
(1) Dworkin: There is no 'content of law' - law is an interpretive practice of past political decisions.
b. Hart: The rule-principle distinction is flimsy. Dworkin says rules are conclusive whereas principles merely have weight. The contrast disappears when one looks at cases where a principle 'beats' a rule, e.g. Elmer's case. The distinction is a matter of degree. A
reasonable contrast can be made between nearconclusive rules and generally non-conclusive principles. Judges can accept as the RoR that
'principles' adopted in past cases are valid legal norms,
just as 'rules' are.
(1) BUT: (Me): Legal rules are just pre-set answers to which principle is more important when particular circumstances arise. Legal rules therefore usually take precedent over conflicting principles, except in hard cases
(where judges disagree over which principle is more important) or novel cases (to which there is no pre-set answer and general conflicting principles must be weighed up in order to produce a legal rule for future cases).
This betters fits with Dworkin's interpretive theory of law.
2. Gaps in the law - Where the law runs out, or where precedents and statutes conflict, judges have a discretion to
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