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Last time’s in-class writing. More on H.L.A. Hart. Legal validity. Existence of a legal system

1.

PLAN FOR TODAY
• Last time’s in-class writing
• More on H.L.A. Hart
• The “rule of of recognition,” continued
• Legal validity
• Existence of a legal system
=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=
• Discussion:
• Gyges’ Ring (on the internal aspect of rules, or the normative
attitude)

2.

Last time’s in-class writing
• Many good comments and questions.
• Keep asking questions, that is an important way to learn.
• Primary and secondary rules.
• Primary rule imposes duties or obligations.
• It’s not that you have “no choice” about a primary rule. But if you
disobey a primary rule, you might be punished.

3.

Last time’s in-class writing
• For Hart, anything that is not a primary rule is a secondary rule
• Hart talks mainly about secondary rules that grant powers-• Private powers, to individuals, to make some legal arrangements
if they want to (for example, make a will, a contract, or enter a
marriage), and tells them how to to do it in a way the law will
recognize
• Public powers, to different parts of government (for example, to
the Oliy Majlis, to make laws; to the courts to decide cases) and
tells them what procedures they have to follow

4.

Last time’s in-class writing
• Primary and secondary rules.
• Besides power-granting rules, there are other kinds of secondary rules.
• A secondary rule that neither imposes a duty nor grants a power is the
rule of recognition.
• Some people asked about the rule of recognition. One person asked,
how does the rule of recognition give us the structure of the legal
system?
• We’ll talk more about the rule of recognition, today.

5.

Last time’s in-class writing
• Primary and secondary rules.
• Hohfeld’s ”elements of law” approach helps to understand the
other kinds of secondary rules.
• Because I want to get to Gyges’ Ring today, I hope to tell you more
about Hohfeld another day.

6.

Last time’s in-class writing
• Secondary rules.
• Someone asked, what if there only primary rules and no secondary
rules?
• Hart answers: there would be three problems…

7.

Last time’s in-class writing
• People might be uncertain which social rules were the primary legal
rules
• SOLUTION: the secondary “rule of recognition,” which tells you
which rules –primary and other secondary rules--are the rules of
the system.

8.

Last time’s in-class writing
• No way to change the rules
• SOLUTION: secondary rules of change, which tells you how to
change the rules, by making new ones, or changing or canceling
old ones.

9.

Last time’s in-class writing
• How would people resolve disputes over whether someone had
violated the rules?
• SOLUTION: secondary rules of adjudication, establishing courts
and stating the procedures for deciding cases.
• (There might be other ways—discuss it, negotiate,
compromise; but Hart answers the question--what if those
don’t work?)

10.

Last time’s in-class writing
• Finally, President Trump
• Will he be held responsible? How will it end?
• We don’t know yet. Prosecutors are investigating him on a
number of charges and have not yet decided whether to
prosecute him.
• Why is it taking so long for a decision to be made?
• I think many people are asking that question. I think: the
prosecutors want to build as strong a case as they can before
they decide whether to prosecute.

11.

Last time’s in-class writing
• Finally, President Trump
• Is he being treated differently from other citizens because he is the former
President?
• His status as a former President is not legally relevant—he is just a private
citizen now. But because a former President has never been prosecuted,
that may make the prosecutors extra-careful before they decide.
• What is my opinion?
• There is a lot of evidence already public that he may have committed a
crime. But whether there is enough evidence to convict him is something
the legal system has to decide.

12.

The “rule of recognition”
• Now let’s go on…

13.

Статья 5. Виды нормативно-правовых актов
Видами нормативно-правовых актов являются:
• Конституция Республики Узбекистан;
• законы Республики Узбекистан;
• постановления палат Олий Мажлиса Республики Узбекистан;
• указы и постановления Президента Республики Узбекистан;
• постановления Кабинета Министров Республики Узбекистан;
• приказы и постановления министерств, государственных
комитетов и ведомств;
• решения органов государственной власти на местах.

14.

The “rule of recognition” (from last time)
For a modern state,
instead of listing all the laws,
the list might name the institutions
with the authority to make law.
(As we just saw in Article 5:
the rules made by the listed institutions are laws.)

15.

The “rule of recognition”
The idea of the rule of recognition helps us understand
another important word in our original definition of law…

16.

“…the system of rules…”
“…the system
of rules
which a particular country or community recognizes
as regulating the actions of its members and
which it may enforce
by the imposition of penalties.”

17.

The rule of recognition
The idea
of the rule of recognition
helps us understand how law is a system of rules. (Gulya)
We don’t have just a list of unrelated laws:
--this law, another law, and another law…

18.

The rule of recognition
• The rule of recognition-• Relates all the laws to each other
• By bringing them together
• Unifying them into a co-ordinated system.
• (This answers the question how the rule of recognition gives us the
structure of the legal system: it gives us the primary and other
secondary rules and shows how they are related to each other.)

19.

The rule of recognition
The rule of recognition says:
These are the laws of one legal system
(of Uzbekistan, of the US, or of another state).

20.

21.

The “rule of recognition” and legal validity
Now we go on to the idea of legal “validity.”
The rule of recognition answers the question:
How do we know
whether a particular normative-legal act is a
(valid, or: is really, or actually)
part of the law of a legal system?
(I didn’t say “a” valid “law” (закон)
because parts of the law as a whole (право) are not законы.

22.

The “rule of recognition” and legal validity
Answer:
If the rule in question
is recognized by the rule of recognition.
(In Article 5, if it is listed or enacted by one of the institutions
authorized to make law.)

23.

24.

The rule of recognition
Test your understanding:
According to Hart,
how do we know
that a normative-legal act is valid part of a legal system?

25.

The rule of recognition
Test your understanding:
According to Hart,
how do we know
that a normative-legal act is valid part of a legal system?
It’s recognized by the rule of recognition.

26.

The rule of recognition
Test your understanding:
• A question I asked earlier in the module:
• If I, Dan Hassenfeld, said: “I hereby declare 1 April a national
holiday in Uzbekistan,” would my declaration make 1 April a
national holiday in Uzbekistan?”
• Why not?
o Include in your answer the words, “rule of recognition” and “valid law.”…

27.

The rule of recognition
Test your understanding:
• A question I asked earlier in the module:
• If I, Dan Hassenfeld, said: “I hereby declare 1 April a national holiday in
Uzbekistan,” would my declaration make 1 April a national holiday in
Uzbekistan?”
• Why not?
o Include in your answer the words, “rule of recognition” and “valid law.”
o It’s not a valid law, because Dan Hassenfeld is not an institution recognized by
the rule of recognition to make law.

28.

The rule of recognition
The valid laws of a legal system,
are those identified by the rule of of recognition
for that legal system.

29.

The rule of recognition
But then Hart asks,
how do we know
whether the rule of recognition itself
is valid or invalid?...

30.

The rule of recognition
How do we know whether the rule of recognition itself is valid or invalid?...
Hart’s answer:
the rule of recognition itself, is neither valid nor invalid.
The rule of recognition exists
—if it exists—
only through being accepted in a society.

31.

The rule of recognition
The rule of recognition itself can be neither nor invalid.
It exists only if it is accepted in a society.
What does this mean?

32.

The rule of recognition
We have been treating Article 5 itself as the RoR.
It exists: We saw it on the slide. You can look it up in the code.

33.

The rule of recognition
But Article 5 is just words on paper (or on a screen).
By itself, Article 5 does not show
that a rule of recognition for a legal system exists.

34.

The rule of recognition
Hart says:
The existence of a legal system
requires more than words.
Whether a legal system exists,
depends on a social fact,
a fact about a community, or a society.

35.

The rule of recognition
The rule of recognition itself can be neither nor invalid.
It exists only if it is accepted in a society.
In this statement
we see the completion of
Hart’s analysis of legal rules as a kind of social rule.
(That’s why Hart explained--and I explained to you—
his analysis of social rules.)

36.

The rule of recognition
As we discussed:
Hart asks: When does a social rule exist in a social group?
He answers: The social rule exists if it is accepted.

37.

The rule of recognition
As we discussed:
Hart asks:
How do we know that a social rule is accepted
in a social group?

38.

The rule of recognition
Hart answers:
If enough people (not necessarily everyone in a social group)-
[1] Share a common behavior (behave in similar way)
(external aspect of rules);
AND
[2] Have the normative attitude toward that common behavior
(internal aspect of rules).

39.

The rule of recognition
Hart goes on:
Legal rules are a kind of social rule.
But legal rules are different from other social rules.
They have a special characteristic or feature: legal validity.

40.

The rule of recognition
As we just saw:
The validity of any legal rule in a legal system,
depends on whether it is recognized
by a particular secondary rule
--the rule of recognition—
for that legal system.
What validates (=makes valid) a law in a legal system
is the rule of recognition for that legal system..

41.

The rule of recognition
But then, Hart asks:
What validates the rule of recognition itself?
He answers:
The rule of recognition is neither valid or invalid.

42.

The rule of recognition
The reason
the rule of recognition
is neither valid nor invalid, is this:
Although the rule of recognition
validates other rules of the legal system,
there is no other rule in the legal system
to validate the rule of recognition itself.

43.

The rule of recognition
So: ultimately (=finally, at the end of the analysis)
the rule of recognition is a social rule.
It exists, if it is accepted.

44.

The rule of recognition
In other words,
to sum up:
A rule of recognition for a legal system of a community, or a society, exists
--and the legal system that depends on that rule of recognition
for the validity of that legal system’s laws, exists--
if
enough people in the community, or society, accept it—
that is, have the internal, normative, attitude towards it.

45.

The rule of recognition
Now, for Hart—
Who are the people
whose acceptance of the rule of recognition
is enough
for the rule of recognition, and the legal system based on it, to exist?

46.

The rule of recognition
Hart answers:
The people he calls,
“officials” and “experts” of the legal system.
By “officials” and “experts,” he means:

47.

The rule of recognition
Hart answers:
The people who work in and maintain the legal system. These include:
Legislators
Judges
Ministry officials
Prosecutors
Police…AND

48.

The rule of recognition
…private lawyers, who advise and represent clients.

49.

The rule of recognition
All these workers in the legal system
show that they use the rule of recognition as a “guiding rule”
to identify the laws of the system,
by the way they do their jobs of…

50.

The rule of recognition
Legislating (making law)
Implementing the law (ministry and other officials)
Applying and interpreting the law (judges)
Enforcing the law (prosecutors and police)
and
Advising clients, and making legal arguments,
about the meaning of the laws (private lawyers).

51.

The rule of recognition
For a legal system to exist:
workers in the legal system (“officials’ and “experts”)
must have the normative attitude towards the law,
the attitude
that acting according to the law is the right thing to do.

52.

The rule of recognition
You can see whether
workers in the legal system (“officials’ and “experts”)
have the attitude
that acting according to the law is the right thing to do,
from the way their do their jobs.

53.

The rule of recognition
If they act according to the law
to maintain the legal system,
they have the normative attitude toward the law.
They satisfy the internal aspect of rules.

54.

The rule of recognition
They express their normative attitude toward the law
--their commitment to the legal system—
in statements like,
“I have to do that because that is the law,”
or
“I cannot do that because that is against the law.”

55.

The rule of recognition
If workers in a legal system are corrupt,
then they don’t have the normative attitude.

56.

The rule of recognition
We don’t need Hart’s understanding of social rules, or secondary rules,
or the rule of recognition, to know what corruption is.
But Hart’s concepts give us a way of talking about it
and thinking about what it means in relation to a legal system.

57.

The rule of recognition
Hart’s theory clarifies the choice legal system workers face,
when they are given an opportunity to do something corrupt
for their own benefit.

58.

The rule of recognition
Because legal system workers are responsible
for the maintenance of the legal system,
insofar as they act corruptly,
they undermine the existence of the legal system.

59.

Acceptance of the legal system by the people
But what about everybody else in society?
The people who are not “officials and experts”
Do they have to accept the legal system, for the legal system to exist?
What does Hart require of them?

60.

Acceptance of the legal system by the people
Hart says:
it is not necessary,
(to say that a legal system exists),
for the rest of the people in a society
—who do not work in the legal system,
either for the government or as private lawyers-to have the normative attitude towards the legal system.

61.

Acceptance of the legal system by the people
Hart says:
For a legal system to exist,
it is enough that the rest of the people obey the laws,
no matter for what reason-to avoid punishment, or just to behave as others do.

62.

Acceptance of the legal system by the people
Hart says:
To think that most ordinary citizens understand
what makes valid laws valid, would be absurd, a fiction.
The reality is:
many ordinary citizens
—perhaps a majority—
have no idea of what makes valid laws valid.

63.

Acceptance of the legal system by the people
But: general obedience to the law
is not a small condition,
even if people generally
do not have the internal attitude.
For a legal system to exist,
enough of the people,
enough of the time,
have to obey the law.

64.

Acceptance of the legal system by the people
For if, in a society,
the law is generally disobeyed,
then, no matter what the laws say,
the society will reach a point
where they cannot claim to have a legal system.

65.

Acceptance of the legal system by the people
All this is relevant
to another part
of our original definition of law…

66.

“…recognizes as regulating…”
“…the system
of rules
which a particular country or community recognizes
as regulating the actions of its members and
which it may enforce
by the imposition of penalties.”

67.

Acceptance of the legal system by the people
Hart says:
The “recognition” of a system of rules
as “regulating” the behavior of the members of a community,
is divided
between committed officials and private lawyers, on the one hand,
and obedient citizens, on the other.

68.

Acceptance of the legal system by the people
Hart concludes:
No more is needed,
for the existence of a legal system;
in other words, for us to say that a legal system exists.

69.

Acceptance of the legal system by the people
Hart adds:
A society in which citizens do have some understanding of the law
and obey the law because that is the right thing to do,
Hart calls, legally “healthy.”

70.

Take another look at: “Lawyers and the Rule of Law”
“…a lawyer should further
…legal institutions
the public’s understanding of
in a constitutional democracy
and confidence in
depend on
the rule of law and the justice
popular participation and
support
system because…
to maintain their authority.”

71.

Acceptance of the legal system as a whole
Maybe…
the kind of society
that has the best chance to be legally “healthy,”…

72.

Acceptance of the legal system by the people
…is a “constitutional democracy” in which
lawyers “further the public’s understanding of and confidence in
the rule of law and the justice system.”

73.

Questions to check your understanding of:
the rule of recognition, acceptance of the legal system as a whole, and
the legally healthy society
• How could the rule of recognition be “neither valid nor invalid”? Isn’t it a legal rule?
• If the rule of recognition is neither valid nor invalid, how do we know if it is in effect?
• When, according to Hart, can we say a legal system exists?
• Hart says that different groups of people in society show their acceptance of the legal system as a
whole, in different ways. Why shouldn’t everyone show their acceptance of the legal system in
the same way?
• How do ”officials” and “experts” (private lawyers) show their acceptance of the legal system?
• How, according to Hart, do ordinary citizens show their acceptance of the legal system? Do you
think that what Hart requires of ordinary citizens, is enough, for us to say that a legal system
exists?
• What, according to Hart, is a legally “healthy” society? (--Questions on these? Let me know.)

74.

Points to remember from Hart:
• Acting according to a social rule versus not acting according to a social rule
• External aspect of social rules
• Internal aspect of social rules
• Laws takes the form of rules
• A legal system is a combination of primary and secondary rules
• Different kinds of secondary rules
• The “rule of recognition”
• Legal validity
• Existence of a legal system

75.

As you think about Hart, think about this, too…
“A legal system is more than the laws in force at a given moment. Law is a monument
(= special building) of history, constructed over many centuries, not simply out of words
and documents but out of human actions and human lives. Law is more than rules; it is
the legal profession, the law schools [=law universities], the technique and tradition of
judging, administering, and legislating. Law is also the sense of law, the lawconsciousness, of the people. These things exist not only in space but also in time. How
deeply they are imbedded [=placed firmly and deeply] in the institutions of a society may
depend in part on the length of time they have existed, and even more on the historical
circumstances surrounding their origin and development. This is obvious in the case of
our own [American] legal institutions…; it is also true of the legal institutions of other
countries, however codified the law of those countries may be.”
--Harold J. Berman, Justice in the U.S.S.R.: An Interpretation of Soviet Law
(revised edition 1963), p. 187 (my emphasis)

76.

Gyges’ Ring story
Would someone who read the story of Gyges’ Ring
that I uploaded
please briefly tell the story.

77.

Gyges’ Ring discussion
Plato(n) has us imagine two magic rings, one given to a morally
good person and one to a person who is not morally good.
Glaucon* asks whether there would be any difference in the way the
two would behave. Do people behave morally, only because they are
afraid of the consequences of getting caught if they behave badly?
-----------------------------------------------------------------------------------------*The handout says “Plato contends [=claims].” In Plato’s Republic, it is
the character Glaucon (not Thrasymachus, as I mistakenly said, two
lessons ago) who tells the story of Gyges.

78.

Gyges’ Ring discussion
Discussion Questions
• What would you do if you had a ring that made you invisible?
• If we all had a ring of Gyges, what would happen?
• Do you think we are good (or obey the law) only because we
are afraid of getting caught?

79.

Gyges’ Ring discussion
Discussion Questions
• Do people want to be good (or obey the law) , or are they only
good because they will get something out of it, like the approval
of their parents or some other reward?
• What is the difference between someone who is morally good
(or obeys the law because they believe it is the right thing to do)
and someone who is not?

80.

Writing:
Take your whole ten minutes to answer one or more of these questions about Gyges’ Ring.
State reasons for your answer(s).
If you answer one and there’s more time, answer another, and keep going until 3:20.
(I narrowed the questions to be just about law.)
• What would you do if you had a ring that made you invisible?
• If we all had a ring of Gyges, what would happen in society?
• Do you think we obey the law only because we are afraid of getting
caught?
• What is the difference between someone who obeys the law because they
believe it is the right thing to do and someone who does not?

81.

END OF LESSON

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