Hart's Concept of Law Lecture Eight 2000 :

16. Postscript (a) "Soft Positivism" The question here is one as to the nature of legal positivism. Hart, himself saw the separation of law and morals as central to the meaning of legal positivism: 254 "Here we shall take Legal Positivism to mean the simple contention that it is in no sense a necessary truth that laws reproduce or satisfy certain demands of morality, though in fact they have often done so" (Hart, op cit pp.181-2) Raz puts the matter in even stronger terms: 255 "A jurisprudential theory is acceptable only if its tests for identifying the content of the law and determining its existence depend exclusively on the facts of human behaviour capable of being described in value-neutral terms and applied without resort to moral argument". (Raz The Authority of Law 39-40) This is an important point and constitutes both a statement of Raz's (strong) sources thesis and a proposition which distinguishes Raz from Hart, in so far as Hart espouses a "soft positivism" 256::- "... the rule of recognition may incorporate as criteria of legal validity conformity with moral principles or substantive values ... such as the Sixteenth or Nineteenth Amendments of the United States Constitution"" (Hart, Postscript, p 250). [not clear why these are the examples chosen and see, too, Campbell, The Legal Theory of Ethical Positivism, pp 84-5 on "separation thesis" or "separability thesis"] and 257: "...I expressly state both in this book (p. 72) and in my earlier article on 'Positivism and the Separation of Law and Morals' [71 Harvard Law Review 598 (1958, reprinted in Hart, Essays on Jurisprudence and Philosophy (see especially pp 54-5)] that in some systems of law, as in the United States, the ultimate criteria of legal validity might explicitly incorporate besides pedigree, principles of justice or substantive moral values, and these may form the content of legal constitutional restraints" (Hart, Postscript, p 247).



An important aspect of positivism is its persistence in seeking to keep law and morals separate. For positivists, the mere fact that a rule violates certain standards of morality does not disqualify it as law, if the rule has been made in the appropriate way according to the rule of recognition or the sources thesis. Iniquitous rules, immoral rules, unjust rules can notwithstanding these defects be valid rules of law. And positivists usually claim that it is possible to describe the law in a value neutral manner, wherein moral evaluation plays no part. All this is often summarised in the positivist slogan that "Any content can be law" or "Law can have any content". Thus for positivists, the very "law-ness" of a rule is a matter of pedigree not content.



It is important to see that this claim is quite narrow. What is claimed is that there is no logical, or necessary, or conceptual link between law and morality, although as a matter of contingent fact, law will often coincide or approximate with morality and morality may have a significant influence on the contingent content of law. Again, there is no implication that moral considerations are unimportant. All the major positivists in varying degree of intensity, discuss moral issues at considerable length. And, moreover, as Campbell's recent work, The Legal Theory of Ethical Positivism seeks to establish, one could adopt legal positivism on ethical grounds, such as ethical commitment to a strong version of the Rule of Law. What emerges is that legal positivism separates two questions:- that about the existence of law and that about the moral worth of a law. Rightly or wrongly, positivists criticise natural lawyers for conflating these two questions into one by incorporating morality into the very meaning or concept of law, although not all natural lawyer, notably Finnis, accept such criticism as warranted.



In any event, for Raz, any complete theory of law includes tests for the identification of the content and for determination of the existence of the law. That may distinguish Raz from Hart who did not intend that the Rule of Recognition be understood as exhaustively determining outcomes. Seeking to refute some criticisms of the Rule of Recognition Hart writes of 258 "... a misunderstanding of the function of the rule. It [the criticism wrongly] assumes that the rule is meant to determine completely the legal result in particular cases ..." (Hart, Postscript, p 258). Accordingly, it is highly implausible to ascribe to Hart a conception of the rule of recognition, itself, as being so detailed that it can answer exhaustively and in advance all questions about the scope and meaning of the primary duty imposing rules, to the exclusion of fresh choices between open alternatives at the point of application of these rules. 259 "Nothing can eliminate this duality of a core of certainty and a penumbra of doubt ... [which] imparts to all rules a fringe of vagueness or 'open texture', and this may affect the rule of recognition ... as much as a particular statute" (Hart, op cit pp 119-120).



For example, the duty of care in the English law of tort is currently determined judicially by an imprecise notion of "proximity", subject to an even less precise requirement that the imposition of a duty be "just and reasonable" and whereas it may be entirely appropriate to understand the rule of recognition as containing both institutional (courts and practice) and evaluative (principles and standards) criteria for the identification of the primary duty-imposing rules, it would be altogether a different matter to seek to ascribe to the rule of recognition any capacity to determine precisely the meaning of "just and reasonable" or to settle in advance exactly when close "proximity" is or is not to be outweighed by what is "just and reasonable", especially where these questions are currently matters of judicial debate and are not entirely free from doubt. Here 260 "... we are in the area of open texture of the system's most fundamental rule" (Hart, op cit, p 147). Accordingly, the rule of recognition simply cannot eradicate the dispositive element in law and to that extent it should not be understood as conclusively determining what the duty imposing rules are. But even if the rule of recognition is treated as being exclusively 116 "a rule for conclusive identification of the primary rules of obligation" (Hart, op cit p.92) -- that is, not what the duty imposing rules are, but what duty imposing rules there are -- formidable difficulties remain in stating the rule. Hart first indicated the sort of things that might be found in a rule of recognition, for example, it may refer to an authoritative list or text of the rules. However, Hart acknowledged that in any mature legal system such a rule will be considerably more complex. In such systems, the rule of recognition is likely to refer not so much directly to the rules but indirectly to the criteria for identification of the rules such as their being enacted by some specific person or body, or their long customary practice, or their relation to judicial decision making, or a combination of such "sources". In that latter case, the rule of recognition may also establish a hierarchy amongst the several sources, such as the subordination of custom or precedent to statute.



Even excluding any evaluative criteria from the picture and concentrating only on institutional and hierarchical criteria, there must be doubts about the capacity of any rule of recognition to identify what rules there are. The vexed and vexing denial by the English contract law of a ius quaesitum tertio may be the result of the application one legal rule or of two, that is, it may be merely an entailment of the rule requiring consideration as a condition for the enforcement of contractual obligations or it may be both that and a consequence of a separate privity or third party rule. Of course, where both rules point to the same conclusion there is no practical problem but where reform is contemplated, as it currently is, it would be helpful to know exactly what rules exist.



However, a rule of recognition relying solely or chiefly on institutional criteria for the identification of law necessarily reproduces but does not resolve the doubts and uncertainties contained within the institutional materials themselves. Yet, it remains Hart's view that despite many valid criticisms of the practice theory of rules, that theory is "fully applicable" [Postscript 259] to the rule of recognition. But a practice-based rule of recognition cannot distinguish between legitimate and illegitimate practices. Accordingly, it seems to me that an effective rule of recognition must embody some critical value assumptions. But whatever the necessity and attractions of including values among the law-identifying criteria, the consequence may be to convert the rule or recognition into a principle of acceptance and that, in turn, suggests that legal norms are more open and defeasible than classical legal positivists have usually been prepared to acknowledge.



Raz distinguishes a strong and a weak version of the sources thesis. The difference between the weak and the strong social theses is that the strong one insists, whereas the weak one does not, that the existence and content of every law is fully determined by social sources. On the other hand, the weak thesis but not the strong one, builds into the law the conditions of efficacy and institutionality. Raz asks us to suppose that the law requires that unregulated disputes (i.e. those where the law is unsettled) be determined on the basis of moral considerations. 261 "Suppose further that it is argued that in virtue of this ... moral considerations have become part of the law... (and law is never unsettled unless morality is). This contention runs directly counter to the strong thesis. If it is accepted, the determination of what is the law in certain cases turns on moral considerations, since one has to resort to moral arguments to identify the law. To conform with the strong thesis we will have to say that while the rule referring to morality is indeed the law (it is determined by its sources) the morality to which it refers is not thereby incorporated into law" (Raz, The Authority of Law, pp 45-46). But there is obviously another way of looking at it, namely that the morality in question does become part of the law. That would certainly be consistent with the efficacy and institutionality conditions, and perhaps, with the sources thesis because all that is asserted is that source-based laws may from time to time incorporate parts of morality into law ... But the result of that is that 262 "... some non-source-based moral principles are part of almost every legal system, since most legal systems require judges to apply moral considerations on various occasions" (Raz, ibid.)



For Raz, the dividing line between positivist and non-positivist theories of law occurs somewhere in the area between the two sources theses: 263 "The weak thesis, though true, is insufficient to characterize legal positivism. It is compatible with (a) Sometimes the identification of some laws turn upon moral argument, but also with (b) in all legal systems the identification of some laws turns on moral argument. The first view is on the borderline of positivism and may or may not be thought consistent with it. But whereas the first view depends on the contingent existence of source-based law making moral considerations into the criteria of validity in certain cases ... the second view asserts a conceptual necessity of law by moral argument and is clearly on the natural law side of the historical positivist/natural law divide". (Raz, op cit., p 47) Raz then seeks to argue for the truth of the strong sources thesis. [OHP10] He offers two reasons. First, the strong sources thesis explains our conception of law in that it makes sense of a number of distinctions that are usually taken for granted, including the following three - A Judicial appointments - distinction between (a) knowledge of and skill in law and (b) wisdom and moral sensitivity; B Judicial arguments - distinction between (a) legally acceptable or unacceptable and (b) morally good or bad; C Settled and unsettled law - distinction between (a) moral argument in developing law where it is unsettled and (b) deciding cases by the use of legal skills where the law is settled.



For Raz the strong sources thesis explains these distinctions - law is settled where legally binding sources provide its solution ... here judges "apply law" and use technical legal skills in reasoning from these sources with no need for moral acumen: 264 "If a legal question is not answered by standards deriving from legal sources then it lacks a legal answer" Raz, op cit p 50) Secondly, the strong sources thesis 265 "...helps to identify a basic underlying function of the law : to provide publicly ascertainable standards by which members of the society are held to be bound so that they cannot excuse non-conformity by challenging the justification of the standard ... standards which are ... binding beyond moral argument"(Raz, op cit, pp 51-52) And so the sources thesis reveals law to be 266 "...a kind of human institution which is of decisive importance to the regulation if social life". (Raz, op cit, p52).



Now it is this very notion of law being "binding beyond moral argument" that I want to explore. And ultimately take exception to. I will return to that shortly under the heading of "Defeasibility" but first, let me complete the "soft positivism" point, Clearly Hart is adopting some version of what Raz has called the weak sources thesis and therefore is at most "on the borderline of positivism". The question is whether one can admit some moral material into the identificaton of law without thereby defeating the very point of a sources thesis. It is Raz's case that one cannot and Hart's case that one can.



One brilliant contribution to the debate, namely Professor Waluchow's Inclusive Legal Positivism, brings out perhaps most clearly the wider issues involved. Consider what Waluchow has happily dubbed 267"Charter societies" (Waluchow, Inclusive Legal , pp 95-8; 102, 114-7, 122, 134-5, 139-65, 223, 227-9, 262, 267), that is societies like Canada with its Charter of Rights, America with its Bill of Rights, and Europe with a Convention of Human Rights, 268 "... in which the accepted tests for legal validity do appear to include a moral dimension" (Waluchow, op cit p 102). It is a salient feature of such societies that what I call "regular legal norms" are susceptible of constitutional override, that is, are open to defeat if sufficiently inconsistent with one of several privileged values expressed in necessarily vague and general language in the constitutional text. It follows, I think, that in Charter societies all regular legal norms are at most "conditionally", not absolutely valid; that is valid upon condition of compliance with the moral values incorporated into, or running parallel to, the law by the controlling and overriding constitutional text. Thus in Charter societies there is an "open-ended" sources thesis. It seems to me a virtue of Hart's theorising that it can accommodate the law of such "Charter societies" and it seems to me not to matter very greatly whether the label "positivist" is to be denied to Hart as a consequence, although many would be surprised if Hart was to be summarily excommunicated from the positivist church but in any event, his theory, with its weak social thesis, has the merit of being both descriptively accurate and normatively appealing (at least to me).



Now contrast "Charter societies" with what I shall call "Sovereignty systems" of which Great Britain, perhaps England, is the prime example. A Sovereignty system is one which exhibits a strong sources thesis. Regular legal norms are not subject to override on constitutional, or any other grounds. The rule of recognition in such a system is "closed", identifying a sovereign source as ultimate, exclusive and exhaustive of "law, perhaps along the lines of "What the Queen in Parliament enacts is law and all the courts can do with an Act of Parliament is to apply it". It seems to me that Austin's legal theory, Dicey's constitutional theory, the history of the British Constitution, and the intellectual style of English law all conspired to produce a fertile breeding ground for sovereignty theories, with strong and closed sources theses as opposed to Charter thinking with weak and open-ended sources theses.



It also seems to me that sovereignty theories of law are profoundly misconceived and fatally flawed. I agree with Waluchow that 269 "People are prepared to accept the authority of others, but only on terms which recognize its reasonable and rightful limitation" (Walachow, op cit, p 98) and I adopt with glee, the proposition that 270 "A system of law sufficiently open to moral argument is more likely to be morally acceptable and thus capable of serving the cause of peace and order" (Summers, Lon L Fuller, p. 29). In this manner I seek to adopt, too, what I regard as a "Scottish" notion of "conditional sovereignty" rather than an "English" notion of "absolute sovereignty".



Moreover, these are timely questions. The British Constitution is facing great challenges and change. The partial integration of the European Convention of Human Rights is not "officially" to challenge Parliamentary sovereignty. Under the Human Rights Act 1998 courts in Great Britain do not have the power formally to dis-apply an Act of the Westminster Parliament, even though it is plainly inconsistent with the European Convention. But in reality British courts will increasingly assess regular legal norms against the moral aspiration of the Convention and there is an obligation so to interpret UK legislation in section 3 of the Act. That being so, we are in Britain more than ever before ready to adopt a conception of law which incorporates moral values through a weak and open-ended sources thesis (i.e. Hart) rather than cleave to outdated sovereignty theories founded upon a descriptively inaccurate and normatively unappealing strong and closed sources thesis (e.g. Raz). Nor would such a theoretical move be a radical departure in that, as I see it, some courts in Britain are already operating, perhaps have always operated, on the basis of a wider and looser conception of law than that associated with the strong and closed sources thesis. Writing about developments in administrative law , Sir Stephen Sedley observes that 271 "None of this jurisprudence [i.e. case law] is explicable as the simple implementation of Parliament's inarticulate wishes; it is, precisely, the justice of the common aw which is in play" (Nolan and Sedley, The Making and Remaking of the British Constitution, 1997, p 18). Accommodating "the justice of the common law" within a rule of recognition requires, as it seems to me, adoption of a weak and open-ended sources thesis.



There can be no doubt that Hart contemplated that a rule of recognition might expressly refer to and incorporate evaluative material. But including such evaluative criteria complicates matters still further. In some circumstances a contract which is wholly valid according to formal criteria may be denied effect as illegal or unconscionable and the duties imposed by law on insurance companies and on banks may defeat simple statement because of the subtle interplay of specific, "near-conclusive" legal rules and more general, "non-conclusive" legal principles. Furthermore the effect of illegality may change over time. For example, the so-called Bowmakers rule, relaxing or circumventing the effect of illegality on legal title, had not been thought even by its defenders to apply to equitable title until the House of Lords, by a bare majority, so decided in 1992, thereby altering significantly the effect of the "clean hands" maxim of equity (Tinsley v Milligan [1994] 1 AC 340).



Irrespective of whether the focus is on private or on public law, the susceptibility of regular legal norms to override generates a problem for the Hartian construct. 272 Either the overriding elements are "law" or they are not. "If they are "law", they must be identified by the rule of recognition as such or it must be candidly admitted that non-legal materials not only feature in legal arguments but sometimes have greater dispositive weight than do legal materials. It then follows that the rule of recognition must either strive for greater and greater breadth in order to include all possible sources of override or that the rule of recognition must be understood as identifying some but nor all relevant legal materials. But neither an over-inclusive nor an under-inclusive rule of recognition will convince critics of positivism in that, if over-broad, the separability of law and morals thesis is undermined and, if too narrow, there is a lack of descriptive fit with the linguistic practices of the community" R H S Tur, "Rule of Recognition" New Palsgrave Dictionary of Economics and the Law, Vol 3 1998 pp 386-389). This latter point is one to which Hart might have been particularly sensitive in that his theory is embedded in the linguistic philosophy of its day



(b) What is Jurisprudence? Hart address "the nature of legal theory early on in his Postscript" [p 239]. He says, 273 "My aim in this book was to provide a theory of what law is which is both general and descriptive. It is general in the sense that it is not tied to any particular legal system or legal culture ... [and] My account is descriptive in that it is morally neutral and has no justificatory aims ..." (Hart, Postscript, p 239- 240). This approach to legal theory is consistent with that outlined at the beginning of my lectures but says Hart 274 "... it is a radically different enterprise from Dworkin's conception of legal theory (or 'jurisprudence' as he often terms it) as in part evaluative and justificatory and as 'addressed to a particular legal culture' [Law's Empire, p 102] which is usually the theorist's own and in Dworkin's case is that of Anglo-American law" (Hart, Postscript, p 240). For Dworkin, as Hart notes, 275 "Jurisprudence is the general part of adjudication, silent prologue to any decision at law" (Dworkin. Law's Empire, p 90).



There are a number of distinctions here; including General and Particular jurisprudence; Expository and Censorial jurisprudence; Science of Law and Science of Legislation. Hart's suggestion here is that whereas he is concerned with General Jurisprudence, Dworkin is concerned with Particular and Censorial Jurisprudence. Moreover, whereas Hart is concerned to know and understand, Dworkin is concerned to participate in legal argument. Dworkin is concerned with what the law ought to be whereas Hart is more concerned with what the law is. For all these reasons it is very easy to sympathise with Hart's comment that 276 "It is not at all obvious why there should be or indeed could be any significant conflict between enterprises so different as my own and Dworkin's conceptions of legal theory" (Hart, Postscript, p 241).



However, for all the differences in enterprises, there are criticism made by Dworkin of Hart's theory which might persuade even a charitable reader of Hart that his theory is in need of some reconstruction and modification if is indeed to serve as a general theory of law which will assist us in our understanding of law, and is descriptively accurate and normatively appealing. So it will not quite do to take the easy way out and accept that Dworkin and Hart inhabit separate, parallel universes of discourse. That said, Hart's point about the nature of legal theory and the jurisprudential enterprise is a timely reminder of the importance of getting the questions clear before seeking to answer it.



(c) Defeasibility. I am concerned now to explore one final point which I think emerges from a juxtaposition of Hart's theory with those of Dworkin and Raz, namely whether the canonical form of the legal norm ought to be understood as absolutely conclusive where applicable, or open to defeat by other legal norms and perhaps even by extra-legal considerations. This debate runs parallel to the discussion of two approaches to identifying law according to a strong and closed sources thesis or a weak, open-ended sources thesis and therefore I return to Raz and, in particular, to his discussions of 277 "exclusionary reasons"(Raz, Practical Reasons and Norms pp 37-45, 47f., 74, 89, 181f.) This important notion turns upon a difference between first order and second order reasons for action. Whilst we might think that it is best that one always ought to do whatever one ought to do on the balance of reasons, reflection shows that we sometimes depart from this principle, for example where we refuse to make important personal or financial decisions when "tired and emotional". No matter how persuasively you put an attractive investment, romantic, or recreational proposition to me late on a convivial evening, I may refuse the opportunity not on the balance of reasons but on the basis that I never make such decisions in such circumstances. In such circumstances, a second order reason excludes first order deliberation on the proposition: 278 "An exclusionary reason is a second order reason to refrain from acting for a reason" (Raz, op cit, p 39).



There may be strong exclusionary reasons which involve 279 "... a different way of assessing what ought to be done" " (Raz, op cit, p 45) that is, by an appeal to authority rather than to reason; respect for authority is a strong second order exclusionary reason which trumps or overrides the decision that flows from the application of first order reasons. Law, or perhaps laws, function as exclusionary reasons and [265] "are binding beyond moral argument". That there is a law, on this model, precludes moral deliberation: 280 "Having a rule is like deciding in advance what to do" (Raz, op cit, p 73). Hart, himself, has shown some sympathy for this approach: 281 "Buried in the idea of command there are ... elements which are crucial to the understanding of law" (Hart, Essays on Bentham, Ch X "Commands and Authoritative Reasons" p 268) which, when we unpack it, reveals Hart to be in favour of an analysis of law that substitutes 282"peremptory and content-independent ... reasons for action" (Hart, Essays on Bentham, Ch X "Commands and Authoritative Reasons" p 255) for a Benthamite or Austinian concept of "command" the better to capture the "authority" and "normativity" of law. But this is to advocate the exclusion of deliberation and the cutting off of all debate, including moral debate, which seems much more consistent with the strong and closed sources thesis than with the weak and open-ended sources thesis, although Hart is at pains in the essay cited to insist that this preference should not be taken to 283 "... have finally settled the issue concerning the relationship of law and morals" (Hart, Essays on Bentham, Ch X "Commands and Authoritative Reasons" p 262) although clearly Hart perceives that without such a caveat, that very inference might well be drawn.



MacCormick offers the following appreciation of Raz's contribution: 284 "... while we are considering whether there should be such and such an obligation, we remain at a purely deliberative phase of practical discourse. A characteristic of legislative and judicial processes however is that they provide for a transition from "deliberative" to "executive" stages. Once an authoritative decision is taken that such and such is (or is not) obligatory, then pro loco et tempore, further deliberation is excluded or overridden from having direct practical bearing. Characteristically, the appeal to law, to legal rights or duties, is an appeal to that which has been so decided or settled. Of course, there may still be dispute or deliberation as to the proper interpretation or application of what has been settled and a variety of reasons may be canvassed for or against one or another interpretation (reasons of the same kind as must come into the account where there is an absence of settled law relevant to the problem within an established jurisdiction) . But there is a significant distinction within our practical reasoning as between what has already been decided and what reasons there are for deciding one way or the other points as yet unsettled. Whether or not this argument has sufficient power to sustain the traditional positivistic thesis as to the conceptual independence of law from morality, it is unquestionably the best defence yet offered for that thesis." (MacCormick, "Contemporary Legal Philosophy: The Rediscovery of Practical Reason" ((1983) 10 Journal of Law and Society 1-15)



Notwithstanding Hart's apparent agreement with Raz, and MacCormick's ringing endorsement, as I have said, I want to explore this notion of law being "binding beyond moral argument" and ultimately I take exception to it and so perhaps does Hart, himself, at least some of the time. He says 285 "I see no reason to accept either this sharp contrast between legal principles and legal rules, or the view that if a valid rule is applicable to a given case it must, unlike a principle, always determine the outcome of the case. There is no reason why a legal system should not recognize that a valid rule determines a result in cases to which it is applicable, except where another rule, judged to he more important, is also applicable to the same case. So a rule which is defeated in competition with a more important rule in a given case may, like a principle, survive to determine the outcome in other cases where it is judged to he more important than another competing rule" (Hart, Postscript, pp 261-262)



Now I like the idea that legal rules are subject to defeasance not necessarily or solely by principles but also by other legal rules. Indeed that is the basis of the theory of law which I am building. But this circumstance may involve significant modification of the Rule of Recognition in that some means of measuring the comparative weight and relative importance of competing rules will have to be read into the Rule of Recognition, otherwise there will be no way of correctly identifying or recognising the applicable law; and perhaps that will call for admitting further moral criteria into the determination of legal questions.



As we have already seen, there is a logical inconsistency in founding the normative notion of validity upon a factual premise. This may, however, be mitigated by reference to the dual nature of the Rule of Recognition as both essentially factual and as critically accepted from the internal point of view by at least the officials of the system as conduct guiding and valuable. Although no questions of legal validity can arise concerning the very rule which itself is the source or criterion of legal validity, commitment to the rule or recognition as worthy of support provides some explanation of how it could confer validity on the rules that it identifies for those who accept it. A difficulty with this is that it privileges the official view and treats exclusively as "law" only that domain of discourse identified by reference to criteria contained in a rule accepted as conduct-guiding by officials, but nor necessarily by citizens. The rule of recognition 286 "...must be effectively accepted as common public standards of official behaviour by ... officials" (Hart, op cit p 113) whereas it is enough that the citizens generally obey the primary rules, whatever their motives. It follows that there is little room in this scheme of things for any "critical reflective attitude"of citizens seriously to influence, shape or change primary rules and obligations. Such primary rules are treated as peremptory reasons for action and apply to citizens in an all-or-nothing manner excluding deliberation, especially moral deliberation.. Conversely, principles of acceptance may extend beyond the officials and be adopted by citizens themselves in assessing the degree to which, if at all, a legal rule is binding upon conscience in all the circumstances of the case (Kadish and Kadish, pp 190-194)



Consider now the widely unknown case (reported in The Times of October 20, 1993) of Dr Biezanek, a mother of six, a niece of the author Graham Greene, who became in 1963 Britain's first Catholic doctor operating a birth control clinic, and who was acquitted by a Liverpool jury in 1993 on a charge of supplying cannabis to her adult daughter as treatment for a serious and intractable disease. Since it could not be prescribed in Britain she had asked her daughter how to obtain supplies and had then bought cannabis from dealers and administered small doses to her daughter three times a day. Dr Biezanek's "defence" included the notion that she followed a "higher law"; that she risked becoming a criminal because of her moral conscience; and that she considered her conduct "the right and proper thing".



How are such examples to be theorised? For Hart, the rule of recognition is 287 "the proper way of disposing of doubts as to the existence of the rule ... [and] ... for conclusive identification of the primary rules of obligation" (Hart 1961:92). But it is not clear that the rule of recognition operated in the same way for the various actors in Dr Biezanek's case in that presumably the police, the prosecutor, and the judge understood the possession and supply laws to apply even to the extreme facts of the case whereas the accused, herself, and at least some of the jurors took a different view. It seems fairly obvious that the various actors approached the question of the identification of primary obligations under the criminal law in different ways and that, rather than any mechanical application of one officially accepted rule of recognition, the various actors adopted and applied different principles of acceptance. The question for an addressee of such a rule is not so much about the rule's existence but whether one is free to act on one's own judgment. That is a question which the rule receiver must answer prior to any official determination and 288 "Rules of recognition do not provide the answer but principles of acceptance do" (Kadish and Kadish, Discretion to Disobey, 1973 p 192).



The obvious price to be paid for thus "de-officializing" and democratizing questions about the precise meaning and scope of duty imposing rules is a degree of legal pluralism inconsistent with the major tenets of Anglo-American legal positivism from Bentham to Hart, namely that "law" is a single, unified, and coherent body of rules, pre-empting or excluding addressees' moral deliberations about the precise scope or meaning of the rule. Hart, perhaps more than any positivist theorist might have been expected to have been alert to this in that he stressed the open-ended nature and fuzziness of rules and accepted or insisted that 148 "A rule that ends with the word 'unless ...' is still a rule"(Hart, op cit p 136). So I ask, what might it mean to ask if there are any exceptions to the rule of recognition? If the rule of recognition is contingent upon value judgments it might be subject to defeasance at its outer limits, not merely by officials but also by citizens in the exercise of their critical, reflective judgment. If so, then Hart's theory of law, not least in its core element, the rule of recognition, has paved the way for a pluralist, thoroughly democratized and critical approach to law and legal obligation.

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