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What is missing in the command theory is the notion of a Rule, particularly social rules.
Rules establish standards of behaviour.
Rules establish the conditions under which one may be under obligations.
Rules establish obligations when the general demand for conformity is insistent and the
social pressure brought to bear upon those who deviate or threaten to deviate is great.
Pressure may include physical sanctions or social disapproval/ condemnation.
The rules that impose obligations, that are supported by serious social pressure, are
thought important because they are believed to be necessary for the maintenance of social
life or some highly prized feature of it: rules against violence; rules requiring honesty and
promise keeping; rules defining social roles or functions.
The rules that impose obligations may oppose the self-interest of the person so obligated.
There is a standing possibility of conflict between duty and self-interest.
Internal v External Point of View Toward Rules
External
Internal
Legally primitive societies have only primary rules of obligation for social control.
Given human nature and normal circumstances, such rules must include restrictions
on the free use of violence, theft and deception, as well as duties to perform services
and contribute to the common life.
A significant majority must take the internal point of view toward the rules (because
they are only enforced by social pressure).
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2) Static
The only way to change the rules is by the slow process of changing the attitudes of the
group about some conduct. There is no means to purposefully introduce new rules or
eliminate old ones. There is no means to transfer right or remove duties.
Solved by Rules of Change (Legislation)
Rules empowering an individual or group to introduce new rules or eliminate old one
for the society (legislative enactment and repeal).
May specify certain procedures.
Rules of public power.
Rules of private power (limited legislative power by individuals).
3) Inefficiency
The social pressure by which the rules are maintained may be inefficient. There are no
officials empowered to determine authoritatively whether a rule has been violated and to
impose sanctions.
Solved by Rules of Adjudication
The Rule of Recognition, and Rules of Legislation and Adjudication are all secondary
rule.
- Secondary rules are rules about the rules. They specify the ways in which the
primary rules may be conclusively ascertained, introduced, eliminated, varied,
and the fact of their violation determined.
The union of primary and secondary rules = legal system
- this is the core of foundation of a legal system.
With secondary rules we can explain the notions of legislation, adjudication, punishment,
authority, rights and duties, sources of law, officials, powers.
Those who are officials within the legal system must take the internal point of view to the
rules, especially the rules that create their official positions and define their powers.
Rule of Recognition and Legal Validity
Rule of Recognition:
Rule of recognition is accepted and used to identify primary rules of obligation.
Provides authoritative criteria for identifying primary rules
May be complex, recognize multiple sources of law.
Must specify a hierarchy of sources of law, with one being supreme.
Not usually stated; its existence is shown by the way primary rules are identified (by
judges, officials, lawyers and citizens).
Analogy to scoring rules of a game; used rather than stated; both have officials who
are authorized to apply the rules (judges or referees).
Use by people to identify the rules of the system is characteristic of the internal point
of view. Use to identify the law (It is the law that) indicates acceptance.
Internal point of view is most apparent in the behaviour of judges; they treat the rule
as a reason for their decision, not as a prediction of their own behaviour.
What the rule of recognition is can only be established by looking at the practices of
those within the system.
Validity
Can only be understood relative to a rule of recognition.
A rule is valid = it passes all the tests / meets all the criteria provided by the rule of
recognition and so is a law of the system.
Judgments of validity are made within a legal system or a system of rules.
Rule of recognition is the ultimate rule; it provides the limit to questions of validity.
Rule of recognition is itself neither valid not invalid; it is a social fact.