So Hart offers a general theory of rules that does not make their authority depend upon the physical power of their authors. If we examine the way different rules come into being, he tells us, and…

So Hart offers a general theory of rules that does not make their authority depend upon the physical power of their authors. If we examine the way different rules come into being, he tells us, and attend to the distinction between primary and secondary rules, we see that there are two possible sources of a rule’s authority. (a) A rule may become binding upon a group of people because that group through its practices accepts the rule as a standard for its conduct. It is not enough that the group simply conforms to a pattern of behavior: even though most Englishmen may go to the movies on Saturday evening, they have not accepted a rule requiring that they do so. A practice constitutes the acceptance of a rule only when those who follow the practice regard the rule as binding, and recognize the rule as a reason or justification for their own behavior and as a reason for criticizing the behavior of others who do not obey it.

Evidence

A customary practice of those whose role it is to apply primary rules, a rule of recognition provides criteria of legal validity by determining which acts create law. So the fundamental constitution of a legal system does not rest on moral justifications or logical presuppositions, but on this customary social rule created by ‘a complex … practice of the courts, officials, and private persons’ (107). — HLA Hart, The Concept of Law (Clarendon Law…, 56 (#corroborates, via linked claim)

Categorization

• XREF: connects to: First, Austin’s key assumption that in each community a determinate group or institution can be found, which is in ultimate control of all other groups, seemed not to hold in a complex society. Political control in a modern nation is pluralistic and shifting, a matter of more or less, of compromise and cooperation and alliance, so that it is often impossible to say that any person or group has that dramatic control necessary to qualify as an Austinian sovereign.; A rule differs from an order, among other ways, by being normative, by setting a standard of behavior that has a call on its subject beyond the threat that may enforce it. A rule can never be binding just because some person with physical power wants it to be so. He must have authority to issue the rule or it is no rule, and such authority can only come from another rule which is already binding on those to whom he speaks. That is the difference between a valid law and the orders of a gunman.; One can see how important consensus is for this sort of grammarian. He or she is not describing a practice, but is ‘converting’ it into a different practice altogether, one that would be unmanageable without general agreement. Practices, however, consist in many kinds of uses. Practices differ in kind-unlike the undifferentiated slab of meat that arrives for the butcher’s work, practices are already differentiated. Some are evaluative, some are legal, some are aesthetic, pedagogical, political. Existing practices are subject to description-their contours, though often disputed, can be discerned. Practices are legitimate before they are described. They are bounded before their boundaries are drawn by the cartographer. A cartographer’s map may be adduced in a border dispute, but that is only because the boundedness at issue was already well understood. (+10 more)

Related

• Legal systems combine Hart’s primary and secondary rules. (similarity 0.84)
• Legal systems rest on customary social rules rather than moral foundations (similarity 0.83)
• Law emerges when a secondary rule separates legal rules from social rules (similarity 0.81)
• Hart uses primary and secondary rules distinction inconsistently across multiple dimensions (similarity 0.80)
• HLA Hart — The Concept of Law (Clarendon Law Series) (similarity 0.80)
• Custom precedes and generates law and morality from one undifferentiated norm (similarity 0.80)
• Establishment of legal succession requires an accepted rule rather than mere habit (similarity 0.79)
• In time, however, those who studied and tried to apply Austin’s model found it too simple. Many objections were raised, among which were two that seemed fundamental. (similarity 0.79)
• A functioning legal system can exist where only officials accept its rules. (similarity 0.79)
• Hart points out that Austin’s view that every rule is a general command obliterates the distinction between being obliged to do something and being obligated to do it. If one is bound by a rule he… (similarity 0.78)

Broader Connections

• Hart points out that Austin’s view that every rule is a general command obliterates the distinction between being obliged to do something and being obligated to do it. If one is bound by a rule he… #expands (0.70)
• In each political community, he thought, one will find a sovereign—a person or a determinate group whom the rest obey habitually, but who is not in the habit of obeying anyone else. The legal… #contradicts (0.60)
• Primary rules impose duties while secondary rules confer public or private powers #expands (0.50) — HLA Hart, The Concept of Law (Clarendon Law…, 288
• Legal systems rest on customary social rules rather than moral foundations #corroborates (0.50) — HLA Hart, The Concept of Law (Clarendon Law…, 56
• We must pause over each of these points Hart’s distinction between primary and secondary rules and his rejection of Austin’s command theory, and then note how they merge in Hart’s concept of law. #responds-to (0.50)
• In time, however, those who studied and tried to apply Austin’s model found it too simple. Many objections were raised, among which were two that seemed fundamental. First, Austin’s key assumption… #responds-to (0.40)
• Reductionist legal theories obscure the diverse functions of rules within a social system #corroborates (0.40) — HLA Hart, The Concept of Law (Clarendon Law…, 649