I’m about to run another crazy H.L.A. Hart-inspired idea by you. It runs along the same lines as my last post, so let me just quote the first few paragraphs of that post as a preface to the thought itself:

According to H.L.A. Hart, law is a union of primary and secondary rules. A rule is a codified directive to someone. Primary rules are primary because they give directives directly to, or impose obligations directly on, those governed by the rule. Secondary rules are rules about the primary ones, specifying “the ways in which the primary rules may be conclusively ascertained, introduced, eliminated, varied, and the fact of their violation conclusively determined” (Hart, Concept of Law,  p. 94). Among the secondary rules is a “rule of recognition,” which specifies “some feature or features possession of which by a suggested rule is taken as a conclusive affirmative indication that it is a rule of the group to be supported by the social pressure it exerts” (Hart, Concept of Law, p. 94).

The rules of recognition are both ultimate and supreme with respect to a legal system. They’re ultimate in the sense that they (collectively) provide the most fundamental criterion for determining the validity of any given rule within the system. They’re supreme in the sense that they override any competing norms apparently eligible for validity within the system. On Hart’s view, it’s a necessary and sufficient condition of law that within any putative legal system, the primary and secondary rules so conceived are generally obeyed by those governed by them, and the rules of recognition are “effectively accepted as common public standards of official behaviour” by the officials in charge of the system (Hart, Concept of Law, p. 116).

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