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H.L.A. Hart's secondary rules: What do 'officials' really think?

Accepted version
Peer-reviewed

Type

Article

Change log

Authors

Howarth, D 
Stark, SW 

Abstract

jats:titleAbstract</jats:title>jats:pThe impact of H.L.A. Hart'sjats:italicThe Concept of Law</jats:italic>on modern legal thinking is undisputed. But does it reflect the reality of the way British institutions work? Injats:italicConcept,</jats:italic>Hart argued, amongst other things, that one of two ‘minimum conditions necessary and sufficient for the existence of a legal system’ was that ‘its rules of recognition specifying the criteria of legal validity and its rules of change and adjudication must be effectively accepted as common public standards of official behaviour by its officials’. In this paper, we begin the process of testing that statement empirically. Specifically, we ask whether non-judicial UK officials have a uniform view of what the rules of recognition, change and adjudication are, and whether they uniformly take an internal point of view towards them (i.e. whether they accept the rules and do not merely obey them). By way of a pilot study, thirty non-judicial UK officials were interviewed. Those officials comprised currently serving and retired senior civil servants, senior military officials, chief constables and local authority chief executives. The findings of the pilot study are presented in this paper. They allow us to deduce that Hart's statement might well be an inaccurate and incomplete description of the modern British constitution, and to comment on the implications of that conclusion.</jats:p>

Description

Keywords

48 Law and Legal Studies, 4807 Public Law, 16 Peace, Justice and Strong Institutions

Journal Title

International Journal of Law in Context

Conference Name

Journal ISSN

1744-5523
1744-5531

Volume Title

Publisher

Cambridge University Press (CUP)
Sponsorship
Le Roux Trust (unknown)
LeRoux Trust