February 12, 2015 The Foundations of a Legal SystemH.L.A. Hart Rule of Recognition and Legal Validity - The foundations of a legal system consist of the situation in which the majority of a social group habitually obey the orders backed by threats of the sovereign person or persons, who themselves habitually obey no one. - Wherever such a rule of recognition is accepted, both private persons and officials are provided with authoritative criteria for identifying primary rules of obligation. o The criteria so provided may, as we have seen, take any one or more of a variety of forms.  These include reference to an authoritative text, to legislative enactment, to customary practice, to general declarations of specified persons, or to past judicial decisions in particular cases. o In a modern legal system where there are a variety of “sources” of law, the rule of recognition is correspondingly more complex The criteria for identifying the law are multiple and commonly include a written constitution, enactment by a legislature, and judicial precedents. - The use of unstated rules of recognition, by courts and others, in identifying particular rules of the system is characteristic of the internal point of view. o Those who use them in this way thereby manifest their own acceptance of them as guiding rules and with this attitude there goes a characteristic vocabulary different from the natural expression of the external point of view.  The first of these forms of expression we shall call an internal statement because it manifests the internal point of view and is naturally used by one who, accepting the rule of recognition and without staring the fact that it is accepted, applies the rule in recognizing some particular rule of the system asvalid.  The second form of expression we shall call an external statement because it is the natural language of an external observer of the system who, without himself accepting its rule of recognition, states the fact that others accept it. - From the inefficacy of a particular rule, which may or may not count against its validity, we must distinguish a general disregard of the rules of the system. o One who makes an internal statement concerning the validity of a particular rule of asystem may be said to presuppose the truth of the external statement of fact that the system is generally efficacious.  A grasp of the normal contextual connection between the internal statement that a given rule of a system is valid and the external statement of the fact that the system is generally efficacious, will help us see in its proper perspective the common theory that to assert the validity of a rule is to predict that it will be enforced by courts or some other official action taken.- Finally, in both cases alike the mistake of the theory is the same: it consists in neglecting the special character of the internal statement and treating it as an external statement about official action. o This mistake becomes immediately apparent when we consider how the judge’s ownstatement that a particular rule is valid functions in judicial decision.  In making such a statement, the judge presupposes but does not state the general efficacy of the system, he plainly is not concerned to predict his own or others’ official action. - His statement that a rule is valid is an internal statement recognizing that the rule satisfies the tests for identifying what is to count as law in his court, and constitutes not a prophecy of but part of the reason for his decision. - To investigate the significance of such conflicts between official declarations and the requirements of the rules, it may be dogma to assume that it is withdrawn as a statement now shown to be wrong, because it has falsely predicted what a court would say. - We may say that a criterion of legal validity or source of law is supreme if rules identified by reference to it are still recognized as rules of the system, even if they conflict with rules identified by reference to other criteria, whereas rules identified by reference to the latter are not so recognized if they conflict with the rules identified by reference to the supreme criterion. - The sense in which the rule of recognition is the ultimate rule of a system is best understoodif we pursue a very familiar chain of legal reasoning. - Whereas a subordinate rule of a system may be valid and in that sense “exist” even if it is generally disregarded, the rule of recognition exists only as a complex, but normally concordant, practice of the courts, officials, and private persons in identifying the law by reference to certain