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PREVIEW-Ep. 303: H.L.A. Hart on the Foundations of Law (Part Three)

November 11, 2022 by Mark Linsenmayer Leave a Comment

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Subscribe to get Part 3 of this episode in its entirety.

On The Concept of Law (1961), ch. 6, "Foundations of a Legal System." This chapter goes into detail about Hart's "rule of recognition," which is what is supposed to foundationally make something legitimately a law in a given society. How can we identify something as a law? In Britain, Hart says it's when the Queen in Parliament declares something to be a law (note that I say this incorrectly as "the Queen and Parliament," which would be more ambiguous). In the U.S., the situation is more complex, as even something passed by Congress and signed by the President could be deemed not actually the law by the Supreme Court.

Even determining that the actors here are legitimate is a bit problematic, when people are challenging the legitimacy of this or that Supreme Court justice or President or member of Congress. There are laws to say what proper procedures are for obtaining that role, and legally designated officials who get to decide whether those laws have been obeyed, so the fact that there have been no judicially accepted challenges to, e.g. Neil Gorsuch's weaselly way of getting appointed means that he's legitimate, whatever the opinions of individual voters is. But despite this, there is still for Hart a question of the overall legitimacy of a government and its laws being determined by the fact that enough of the people (and in particular the judges) accept its legitimacy. Even if the ultimate authority on some matter is exerted by some agency, if the consequent law is not enforced or respected by the vast majority of those affected, then it's still not a law.

So while it might seem like the chain of justification here would be one of laws the justify other laws, the bedrock of this is not, e.g. "The Constitution," i.e. a document, but the habitual obeying of (and so the interpretation of) the Constitution by a community of legal enforcers. I say "legal enforcers" instead of just "the people" because it may well be that the masses don't actually know what the Constitution says or what the chain of justification of a law amounts to, except insofar as their respect and obedience must be in some way connected to then recognizing judges and other officials (even police) as authorities whose acknowledgement of the Constitution is what matters here.

In the full episode, we further get into the question of how a rule of recognition might change, and what makes past legislation (e.g. signing on to the Constitution) binding on current governments. Wes mentions Noah Feldman's book, The Broken Constitution and a review of it by James Oakes.

Start with part one.

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