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“All Citizens are Equal before Law and are Entitled to Equal Protection of Law”-Article 27 of the Constitution of the People’s Republic of Bangladesh

Issue No: 239
May 27, 2006

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Battle against HLA HART

Mohammad Iftekhar Bin Salam

What is the law of a particular system is found by recording the actual practice of judges and other official of a legal system. HLA Hart a jurist alive in hearts of all those involved with the legal profession and students of law need no introduction. According to HLA Hart the law on a particular topic in a particular legal system is that which is according to the rule of recognition in that system. The rule of recognition works by conferring power on people to identify the law for certain through the institution of criteria of legal validity. The rule of recognition is the 'ultimate rule' but it comprises both 'supreme' and 'subordinate' criteria of legal validity.

Hart's rule of recognition is not free from criticism. Subsequently Joseph Raz, John Finnis, Neil MacCormick, Jules Coleman, Jeremy Waldron, John Gardner and many others did have their own view in identifying what is the law in the classical tradition than other analytical philosophers did before Hart. John Finnis criticise that Hart leaves insufficiently specified the sort of attitude towards the rule of recognition that the officials have. Finnis says that there are a number of attitudes that could be described by this phrase and that here he employs Hart's own definitional technique there must be a central set of elements that constitute an official's acceptance of the rule of recognition. Finnis tried to establish a complex variant of natural law in that the central set of elements constituting an official's acceptance of a rule of recognition is a moral acceptance of the rule. In this way, Finnis claims to have found a conceptual, logical link between validity and morality.

Ronald Dworkin is one such critic of the rule of recognition who has similarities in his approach to jurisprudence like Bentham, Kelsen, Hart and so on but not a legal positivist. According to Hart, any rule purporting to be a rule of law, can be identified with certainty by applying the rest of identification of the rule of recognition. It follows that any rule purporting to be a rule of law that cannot be identified with certainty is not a rule of law at all. And so will 'hard cases', in other words all those cases which it is controversial what the law is, and almost all those cases that come before appellate judges do not concern law at all. He mentions that in such cases judge apply principles these being requirements of justice or fairness such as no man may profit from his own wrong. Principles have a dimension of weight or importance that rules lack as such Dworkin suggests that Hart's philosophy cannot accommodate principles and as a result are driven to rely on the notion of discretion. A similar sort of criticism of the rule of recognition is to be found in the works of Neil MacCormick. He has in fact formulated a positivist theory that includes principles. He shows that it is possible to incorporate non-rule standards into positivism. Dworkin suggests that judges do not make law. However, to Hart judges have discretion and that they sometimes engaged in law judicial making which is evince in a number of cases like Donoghue v. Stevenson [1932] AC 562, Rylands v. Fletcher (1868) LR 3 HL 330, British Railways Board v. Herrington [1972] AC 877, Pepper v. Hart [1993] 1 All ER 42 and Burmah Oil v. Lord Advocate [1965] AC 75.

In the second edition of The Concept of Law, Hart in a Postscript dealt with some issues raised by critics particularly Dworkin, and affirms that his theory was intended to be both descriptive and general, in the sense that is not tied to any one particular legal system. By 'descriptive' he says that he intended it to be morally neutral and with no justificatory aims. Hart disagrees with Dworkin that the purpose of law or legal practice is to justify coercion.

Hart refers his ignorance to answer any question about the justification of the application of the coercive powers of the state. Hart points at Riggs v. Palmer 115 NY 506 (1889) which involved a rule as regards inheritance and a principle of unjust enrichment rather than two principles as claimed by Dworkin. Principles were ignored but he rejected the proposition that ideas of morality have a role to play in identifying rules of law. Hart still maintains the view that the Nazi-type legal system, while undeniably of moral wickedness, was nevertheless law since the various features it shares with other modern municipal legal system are too great for a universal-descriptive legal theory to ignore.

Hart's description of a legal system in terms of a union of primary and secondary rules provides a tool of analysis for much that has puzzled both jurist and political theorist even today. We may conclude that from his works he has created the idea of law as a set of rules instituting law as we know and it is today and above all its criteria of recognising valid law through the rule of recognition. At last but not least it must be mentioned that there is no wonder why Hart thought that 'the key to the science of jurisprudence' is in the union of primary and secondary rules. As a Jurist the works of HLA Hart will be remembered and appreciated in the world of jurisprudence forever.

The author is currently studying LL.M in International Trade Law Northumbria University, UK.


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