The Normative Force of Hart's Rule of Recognition through Raz's Service Conception — Epoche C2
H. L. A. Hart's rule of recognition is the test that the officials of a legal system actually use to sort law from everything else — in the United Kingdom, roughly, that what the Queen in Parliament enacts is law; in the United States, that what conforms to the Constitution is — and in The Concept of Law (1961) Hart insisted that the existence of such a test is a question of social fact, settled by observing what judges and officials do and what attitude they take to what they do. The question pursued here is whether that is the whole story: whether Joseph Raz's account of what makes an authority legitimate can supply the rule of recognition with a normative force that Hart declined to give it. The answer defended here is that it can, but in a considerably narrower and more awkward form than the question invites — because Raz deploys the very apparatus in question to reach the opposite conclusion about legal validity, and any use of the service conception that ignores this contradicts the argument it is borrowing. What Hart claimed, and what he refused to claim The primary and secondary rule apparatus needs no rehearsal for a reader of political theory; what matters is the particular status Hart assigns to one secondary rule among the others. The rule of recognition is ultimate , and Hart means something specific and easily mislaid by that word. In his system, for a norm to be legally valid just is for it to satisfy the criteria the rule of recognition supplies. Validity is therefore a relation, and the rule of recognition is the relatum. There is no further rule for it to stand in that relation to, and so the question whether the rule of recognition is itself valid is not a hard question but a malformed one. Hart's phrase is that the ultimate rule is neither valid nor invalid but simply accepted as appropriate for use. This changes what the alleged gap in Hart's theory is. The original framing — that the factual reading "struggles to adequately account for" why officials ought to follow the rule — makes Hart look as though he attempted something and fell short. He did not; he denied that the demand was a demand upon legal theory. His account is descriptive and morally neutral: it says what a legal system is, not whether any particular one deserves allegiance. In the Postscript to the second edition he is explicit both that the rule of recognition is a conventional rule — officials' conformity being part of each official's reason for conforming — and that the legal obligations it generates are not thereby moral obligations. Officials may accept it from calculations of long-term interest, inherited and unreflective attitude, disinterested concern for others, or the mere wish to do as others do; Hart lists these to insist that legal theory need not choose among them. Two further features bear directly on what follows. First, acceptance is not mere convergent behaviour: Hart requires the internal point of view, so that officials treat the pattern as a common standard, which shows itself in criticism of deviation, in demands for conformity, and in the normative vocabulary in which both are conducted. A regularity nobody was ever criticised for breaking would not be a rule of recognition. Second — and this corrects a slip in the essay as it stood — the rule addresses officials, not the general population. Hart's minimum conditions for the existence of a legal system are asymmetric: the rules valid by the system's ultimate criteria must be generally obeyed by the population, while the rules of recognition, change and adjudication must be effectively accepted as common public standards of official behaviour by officials. A population may comply without ever forming a view about the criteria of validity; Hart's own remark is that such a society might be deplorably sheep-like, but it would still have a legal system. Any Razian justification of the rule is therefore addressed to officials in the first instance, and saying the rule "enables officials and citizens alike" to identify the law elides the distinction the two conditions were built to mark. The service conception, stated with the conditions it actually carries Raz's account of legitimate authority in The Morality of Freedom (1986) has three components, and the argument below needs all three, so each is stated in turn. The dependence thesis holds that authoritative directives should be based on reasons that already apply, independently, to the subjects of the directives and bear on what those subjects should do in the circumstances the directive covers. The normal justification thesis holds that the normal way of establishing that one person has authority over another involves showing that the alleged subject is likely to comply better with the reasons that apply to him — reasons other than the directives themselves — if he accepts those directives as binding and tries to follow them, than if he tries to act on the underlying reasons directly. The pre-emption thesis holds that an authoritative directive is not one more reason to be weighed alongside the reasons it is based on; it excludes and replaces some of them. The argument for pre-emption follows from the dependence thesis: since the directive is justified by its reflection of the dependent reasons, adding it to those reasons would count them twice. Two corrections to the essay's earlier statement of this material are needed, and the second is not a quibble. The essay wrote that an authority is legitimate "if and only if" its directives improve compliance with independent reasons. Neither half of that biconditional is Raz's. Improved conformity is not sufficient, because in his 2006 restatement Raz adds what he calls the independence condition: even where deferring would improve conformity with reason, authority fails over matters on which it is more important that the subject decide for himself than that he decide correctly. Nor is the test offered as a necessary condition, since the