C. The Empirical Basic Norm (Hart)

The essential points of a critique of Hart's basic norm have already been covered in discussing Kelsen’s basic norm. Nevertheless, the eminent role played by Hart's basic norm in the literature and its status, alongside a basic norm of (he Kantian type, as the most important alternative to Kelsen’s basic norm demand a systematically comparable statement.

Hart speaks not of a ‘basic norm' but of a ‘rule of recogni­tion’. He grants that his theory of the rule of recognition is ^[198] similar in some respects to Kelsen’s conception of a basic norm.^2ls He justifies his differing terminology with, above all, the different status of his basic norm.^{[199] [200] [201] [202] [203]}

The consonance of the two theories is unmistakable. Hart’s rule of recognition comprises the criteria for identifying rules as valid law²²⁰ (he speaks of ‘rules’ instead of ‘norms’). It is the ultimate rule of the legal system.²²¹ As such, it comprises the criteria for, and thereby the basis of, the validity of all other rules of the legal system, that is, the validity of all rules excepting itself.²²² As with Kelsen’s basic norm, one reaches Hart's rule of recognition by enquiring, within the hierarch­ical structure of the legal system, into the basis of legal validity at every level. Hart demonstrates (his with an example in which the last answer and thereby the formulation of the apposite rule of recognition is, ‘[W]hat the Queen in Parlia­ment enacts is law.’²²·

Every bit as obvious, however, arc the differences between the two theories. The most important difference is that the question as to the existence of a rule of recognition as well as the question as to its content are empirical ques­tions.²²⁴ ‘[T]he rule of recognition exists only as a complex, but normally concordant, practice of the courts, officials, and private persons in identifying the law by reference to certain criteria. Its existence is a matter of fact.’²²⁵ This is supposed to be the reason one can speak only of the existence of the rule of recognition and not of its validity.

^2,9 ibid.

²²¹ Hart. CL 102, 2nd cdn. 105.

²²³ ibid.

²²⁵ Hart. CL 107. 2nd cdn. 110.

²²⁷ Hart. CL 98. 2nd edn. 101.

On first glance, (his appears to be an irresistibly simple solution to the problem of the basic norm. But it is too simple, as became clear in the discussion of Kelsen’s basic norm. Hart infers the existence of the rule of recognition from its accept­ance, manifest in legal practice, and then uses its existence as the basis for the validity of ail other legal rules. The crucial problem lies in the concept of acceptance. To accept a rule that finds its expression in a common practice is to move from the fact that the practice exists to the conclusion that it is commanded that one behave in accordance with this practice. The advantage of the Kelsenian theory of the basic norm is that this transition from ‘is’ to ‘ought’ is not hidden behind concepts like the acceptance and existence of a practice, but is held up to the light and turned into a theme. An empirical theory of the basic norm must fail in the end, for it cannot adequately come to terms with the essential problem of every basic norm theory—the transition from ‘is’ to ‘ought’.²²⁸

²²⁸ See Ralf Dreier, ‘Sein und Sollen’, in RM I 217-40. al 223.