Mind Association

On `Levels of Rules and Hart's Concept of Law'Author(s): Theodore M. BendittSource: Mind, New Series, Vol. 83, No. 331 (Jul., 1974), pp. 422-423Published by: Oxford University Press on behalf of the Mind AssociationStable URL: http://www.jstor.org/stable/2252743 .

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On 'Levels of Rules and Hart's Concept of Law' THEODORE M. BENDITT

In his note 'Levels of Rules and Hart's Concept of Law' (Mind, vol. lxxxi, January, I972) Professor D. Gerber argues against Hart's view that in the union of primary and secondary rules can be found the key to the science of jurisprudence.

Gerber asks us to imagine that all of the rules of adjudication in a com- munity are changed in 'non-systematic' ways-that is, in ways not pro- vided for by the rules of change of the system (e.g. by mistake in tran- scription), and that these changes are accepted by the officials and citizens of the community. In such a case, Gerber maintains, Hart has a dilemma: he must hold either (i) that the new rule is a rule of the system and hence that a legal system exists, which is false; or (2) that the new rule is pre- vented from being a rule of the system by the existence of some tertiary rule, and hence that there is a hierarchy of higher levels of rules whose existence must be inferred or assumed, which Hart denies. In either case, Gerber concludes, 'Hart is wrong in thinking that he can account for the existence of a legal system in terms of primary and secondary rules alone' (CL, p. I04).

(i) One of Hart's conditions for the existence of a legal system requires that the rules of change and adjudication of a system must be 'effectively accepted as common public standards of official behaviour by its officials' (CL, p. I13). In Gerber's hypothetical example, however, there is no effective acceptance; there is no criticism of deviations, and hence no internal point of view with respect to the rules. So Hart's condition for the existence of a legal system is not satisfied.

(2) It is true that there is a sense in which secondary rules are 'higher' than primary ones; but this is a metaphor, and nothing in the logic of Hart's account of law commits him to tertiary or higher level rules. All that is required is that, whatever the 'level' at which the rule of adjudica- tion is authorized, the rule which authorizes its change must be at least at the same level. For example, constitutionally required rule of adjudica- tion can be changed only by methods provided by the constitution; rules of adjudication which are legislatively authorized (but not constitutionally required) can be changed by methods provided by legislatively authorited rules; but a legislature cannot, as a matter of ordinary legislation, establish rules for changing constitutional requirements.

(3) We can perbaps take Gerber to be asking what happens when there is doubt as to the rules of change. Mustn't Hart acknowledge that such a question can be resolved only by appealing to higher level rules? Hart, however, points out that there is a very close connection between rules of change and recognition (CL, p. 93), such that to the extent that the rules of change are in doubt, to that extent the rules of recognition, and hence

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ON 'LEVELS OF RULES AND HART' S CONCEPT OF LAW' 423

the existence of the legal system, are in doubt. After all, the existence of a legal system, according to Hart, is not an all-or-nothing matter. (See CL, pp. I I4-120, esp. p. I I9.) Thus, if no legal system exists in this case, it is not for the reason that Gerber suggests.

Hart is caught on neither horn of the dilemma that Gerber sets out (points 2 and 3); and he can reject the hypothetical examples which Gerber uses to exhibit the dilemma (point i).

DUKE UNIVERSITY

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