4 Interpretation and modi fi cation
6.2 How are the sources of international law justified?
6.2.3 Induction: Herbert Hart and the problem of
Why can it be argued that the theoretical challenges of induction are the same as those of the deductive method when these two approaches are so clearly different and even appear to be diametrically opposed? Why can it be argued that if either deduction or induction is consistently applied, they transcend the dichotomy of Is and Ought and thus make cognition of norms as norms impossible? One can do so because both sides of the positivism–naturalism divide are actually much closer than they appear and because both argue from an absolute and foreign element.
From the Pure Theory’s point of view both make the same sort of mistake. For this reason, the treatment of Herbert Hart’s theory – and its application to inter- national law by G.J.H. van Hoof – will be shorter than that of Alfred Verdross’
natural legal designs.
In order to be able to speak of a legal system rather than a set of rules, Hart argues that one needs secondary rules, which are rules ‘about [primary] rules’.135 In particular, one needs a ‘rule of recognition’:
This will specify some feature or features possession of which by a suggested rule is taken as conclusive affirmative indication that it is a rule of the group to be supported by the social pressure it exerts.136
This may sound unconnected to our quest to find out how the sources of
134 ‘Am Beispiel von Verdross ist aber auch zu sehen, wie schwer es einem Anhọnger der Natur- rechtslehre fọllt, einen schwachen Relativismus konsequent durchzuhalten. Groò ist die Versuchung des Wunschdenkens, die eigenen moralischen Bewertungen in das positive Recht hineinzutragen. So gesehen verdient Position eines Verdross . . . vielleicht grửòere Bewunderung als die Kelsens, . . .’; Rainer Lippold, Recht und Ordnung. Statik und Dynamik der Rechtsordnung (2000) 274 (emphasis removed).
135 Hart (1961) supra note 36 at 91.
136 Hart (1961) supra note 36 at 92.
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international law are justified, but ‘basis’ and ‘sources’ are on the same line of argument and Hart himself acknowledges a close connection:
Plainly, there will be a very close connection between the rules of change and the rules of recognition: for where the former exists the latter will necessarily incorporate a reference to legislation as an identifying feature of the rules . . .137
Upon introducing the idea of ‘rules of recognition’ in The Concept of Law (1961), Hart argues that the Rule of Recognition is merely good evidence that norms are valid. This is a bit like recommending to someone wishing to find Austrian or German domestic law to look at the Federal Law Gazette (Bundesgesetzblatt).138 The Rule of Recognition, however, is more important than this. Conformity to it is the test for the validity of a primary rule;139 in effect it is the source of that rule.
‘We can indeed simply say that the statement that a particular rule is valid means that it satisfies all the criteria provided by the rule of recognition.’140 However, a foundation for the Rule of Recognition itself is not needed. It is not valid; it simply ‘exists’. Unlike Kelsen, for whom validity and existence (in an ideal sense) are one and the same, Hart distinguishes between validity and existence. Whereas other norms correspond to it, the Rule of Recognition does not correspond to another norm.141 ‘No such question can arise as to the validity of the very rule of recognition which provides the criteria; it can neither be valid nor invalid but is simply accepted as appropriate for use in this way.’142
For Hart, ‘the question of whether a rule of recognition exists and what its content is . . . is regarded throughout this book as an empirical, though complex, question of fact.’143 The justification shifts from finding another norm to a ques- tion of fact; Rules of Recognition come about through their acceptance by certain human beings in a society:
If a constitution specifying the various sources of law is a living reality in the sense that the courts and officials of the system actually identify the law in accordance with the criteria it provides, then the constitution is accepted and actually exists.144
137 Hart (1961) supra note 36 at 93.
138 It needs pointing out, however, that the role of the Rule of Recognition as an epistemic tool in cognising ‘law’ needs to be distinguished conceptually from the Kelsenian idea of norms as interpretation of reality (Kelsen (1960) supra note 7 at 3–4 (Ch 4 a). The former relates to cognition of the ‘law’, while the latter is ‘law’ as shaping our view of reality.
139 Hart (1961) supra note 36 at 92.
140 Hart (1961) supra note 36 at 100.
141 Norbert Hoerster, Kritischer Vergleich der Theorien der Rechtsgeltung von Hans Kelsen und H.L.A. Hart, in: Stanley L. Paulson, Robert Walter (eds), Untersuchungen zur Reinen Rechtslehre.
Ergebnisse eines Wiener Rechtstheoretischen Seminars 1985/86 (1986) 1–19 at 8; Matthew Kramer, The rule of misrecognition in the Hart of jurisprudence, 8 Oxford Journal of Legal Studies (1988) 401–433 at 425–426.
142 Hart (1961) supra note 36 at 105–106 (emphasis added), cf. also 245–246.
143 Hart (1961) supra note 36 at 245.
144 Hart (1961) supra note 36 at 246.
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We are asked to study which rules are in fact seen as creating rules, aptly exempli- fied by the English constitution where Parliament and the courts are simply recognised as law-givers, which makes them the valid law-givers.
What does this mean and why would one adopt such a theory; what are its problems? The key to Hart’s understanding of the Rule of Recognition is the difference between the internal and external views of a legal system. In effect, acceptance of a legal system as law means internalisation of behavioural stand- ards.145 This is not the place to go into detail regarding this aspect of Hart’s theory;
suffice to say that his view of what it means to be obligated by a rule is different from Kelsen’s in that Hart defines it as ‘reasons for action’. ‘Acceptance is rather something like the acceptance of a reason to act in conformity with a norm by the person accepting.’146
The problem with this and similar approaches147 is that they mix the descrip- tion of reality and prescription. This approach in effect does not acknowledge the nature of norms as an ideal, the Ought. According to Herbert Hart, the fact of acceptance is necessarily the basis of validity of a constitution, since all the various (and different) Rules of Recognition are always those accepted as such.
This argument presupposes just the same type of absolute and external standard as natural law does. Just as in natural law doctrines, the essential dichotomy148 of Is and Ought is transcended. Norbert Hoerster’s interjection that Hart does not deduce Ought from Is, but that ‘he rather understands a norm-descriptive Ought as a specific form of Is’149 cannot solve the problem, because it is the admixture of the dichotomic categories (not merely their deduction, but also their identifica- tion) that transcends the dichotomy. If Ought is reduced to Is, the effect is the same as if Ought is ultimately based on Is.150
By placing a fact (i.e. acceptance) as the ultimate arbiter, Hart psychologises norms as matters of belief. The argument that in the end the Rule of Recognition and, with it, the ‘existence’ of law ‘is a matter of fact’151 is a negation of the very possibility of Ought. Ideals cannot be deduced from reality alone; all law needs to be based on a law authorising its creation. ‘A norm can base its validity
145 Hoerster (1986) supra note 141 at 12.
146 ‘Die Akzeptanz ist vielmehr so etwas wie die Anerkennung eines Grundes zu normkonformen Verhalten seitens der Akzeptanten.’ Hoerster (1986) supra note 141 at 12.
147 Charney, Mendelson and Walden adopt a methodology explicitly based on Hart: Jonathan Charney, Universal international law, 87 American Journal of International Law (1993) 529–551; Walden (1978) supra note 36; Maurice H. Mendelson, The formation of customary international law, 272 Recueil des Cours 1998 (1999) 155–410.
148 Kelsen (1979) supra note 12 at 44–46 (Ch 16 I). In a similar, but unspecific vein: Kramer (1988) supra note 141 at 432.
149 ‘er versteht vielmehr ein normdeskriptiv . . . beschriebenes Sollen, als . . . eine spezifische Seinsform’;
Hoerster (1986) supra note 141 at 17 (emphasis added).
150 One must not confuse Hoerster’s statement with the Kelsenian idea of norms’ ‘existence’ in an ideal realm – the ideal idea. Hart sees norms as a form of Is, whereas Kelsen sees norms’
existence as Ought, as an ideal, not as a real, ontology (Chapter 7).
151 Hart (1961) supra note 36 at 107, 245.
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only on a norm.’152 This is one of the lasting accomplishments of Hans Kelsen’s theoretical work. Kelsen would not be able to stop at the level of ‘material consti- tutional norms’, because one must not base a legal system’s validity on empirical facts. Rather, Kelsen accepts the fact that the foundation will have to be laid in a self-referencing epistemological assumption: in order to cognise norms one has to think as if they were valid (Chapter 7). Thus, Hartian positivism cannot found the normative character of positive norms, just as a (reinterpreted) natural law theory cannot conceive of law’s positivity. Hart’s statement that The Concept of Law
‘may also be regarded as an essay in descriptive sociology’153 dovetails neatly with the predicable Kelsenian critique that seeing law as fact is not legal science, but sociology.154
We will next discuss Hartian international legal doctrine. Hart is known for arguing that international law is not a fully developed legal system, but merely a
‘set of rules’, i.e. without a Rule of Recognition and without any form of secondary rules. Hart did not see international law as sufficiently developed to presume that this system had secondary rules. He argues that secondary rules are a luxury found in ‘developed’ legal systems but not in primitive ones like international law.155 The factual basis of law is transferred to the primary rules themselves. Its rules are valid ‘simply because “they are accepted and function as such”.’156 Hart denies the necessity (rather than the possibility) for ‘rules’ to be within a developed system; he denies the necessity of a Rule of Recognition providing unity to rules and making it a system:157
[W]e shall question the assumption that it must contain such an element . . . why should we make this a priori assumption . . . and so prejudge the actual character of the rules of international law? For it is surely conceivable . . . that a society may live by rules imposing obligations on its members as ‘binding’, even though they are regarded simply as sets of separate rules, not unified by or deriving their validity from any more basic rule. It is plain that the mere existence of rules does not involve the existence of such a basic rule.158 In contrast, G.J.H. van Hoof has applied Herbert Hart’s theory of ‘secondary rules of recognition’ to international law in Rethinking the Sources of International Law (1983). Van Hoof is not convinced by what he calls Hart’s presumption that international law has such a simple structure. Rather, he turns the tables on Hart.
The alleged non-necessity of Rules of Recognition becomes a presumption that a set of rules has none, which is just as speculative as the opposite assumption;159 he
152 ‘Nur eine Norm kann der Geltungsgrund einer anderen Norm sein.’ Kelsen (1979) supra note 12 at 206 (Ch 59 I c) (emphasis added).
153 Hart (1961) supra note 36 at vii; Kramer (1988) supra note 141 at 409.
154 Kelsen (1960) supra note 7 at 89–93 (Ch 21).
155 Hart (1961) supra note 36 at 230.
156 Hoof (1983) supra note 3 at 53, citing Hart (1961) supra note 36 at 230.
157 Hart (1961) supra note 36 at 226–231 (Ch X.5).
158 Hart (1961) supra note 36 at 228 (emphasis added).
159 Hoof (1983) supra note 3 at 53–56.
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points out that Hart’s problem is the non-necessity of a foundation of validity for norms itself.
Hart is merely being true to his identification of Is and Ought when he argues against Kelsen’s Grundnorm that ‘[it] seems a needless reduplication to suggest that there is a further rule to the effect that the constitution [is] to be obeyed’.160 That is why the Rule of Recognition cannot be reinterpreted as a Grundnorm of sorts.
Despite Hart’s claim, the Rule of Recognition does not actually provide validity (strictly speaking) to other norms and is merely of evidential value. In contrast, Kelsen thinks that the Grundnorm is a logical necessity for all normative systems:
The basic norm of a positive moral or legal order is . . . not a positive, but merely a hypothetical norm, that is, a fiction . . . Only if it is presupposed . . . can the contents of these significations be seen as binding moral or legal norms.161
Hart’s internal consistency162 is clearly articulated, for Hart’s criticism of Kelsen’s Grundnorm as redundant reduplication is based on the idea that Ought is caused by the fact of acceptance alone. Since the Grundnorm is just a concretisation of the Is–
Ought dichotomy (Section 7.2), and since Hart does not admit to such a dichot- omy, he does not seem to need a Grundnorm either.
Yet every normative order necessarily has a Grundnorm, because only through it can we cognise the alleged norms as norm. Hart fundamentally disagrees about the nature of the basic norm, for it is not the Grundnorm that is imposed upon or that determines the normative order, but the Grundnorm is a presumption tailor-made for a normative order in order to allow for the cognition of norms. Thus it is also difficult to see how Hart can call the rules that make up ‘international law’
a ‘set of rules’ – an identifiable group of norms – when the unifying element is missing:
In the simpler case we cannot ask: ‘From what ultimate provision of the system do the separate rules derive their validity or “binding force”?’ For there is no such provision and need be none. . . . It is not the case that there is some mystery as to why the rules in such a simple social structure are binding, which a basic rule . . . would resolve. The rules of the simple structure are, like the basic rule of the more advanced systems, binding if they are accepted and function as such.163
This argument is contradictory, for either (if there is no ultimate provision) a ‘set’
is not in any way unified as normative order and therefore not a ‘set’ or ‘system’,
160 Hart (1961) supra note 36 at 246.
161 ‘Die Grundnorm einer positiven Moral- oder Rechtsordnung ist . . . keine positive, sondern eine bloò gedachte, und das heiòt eine fingierte Norm . . . Nur wenn sie vorausgesetzt wird . . . kửnnen diese Sinngehalte als verbindliche Moral- oder Rechtsnormen gedeutet werden.’ Kelsen (1979) supra note 12 at 206 (Ch 59 I c–d). (The second sentence is located a few lines above the first in the original.)
162 Hoerster (1986) supra note 141 at 10.
163 Hart (1961) supra note 36 at 229–230.
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or every rule of any normative structure has acceptance as its basis of validity and all rules are thus united, whether in a ‘set’ or ‘system’.
G.J.H. van Hoof is disconcerted with this inconsistency in Hart’s theory.
He proposes to adopt the Rule of Recognition for international law and adapts Hart’s system accordingly. Van Hoof himself sees ‘consent’ as international law’s Rule of Recognition:
This means that at the same time that the independence of States as a basic feature of international society and the ensuing lack of a hierarchically organised law- making body . . . results in one of the most fundamental aspects of the international law-making process, i.e. that the consent of States has to be regarded as the consti- tutive element of rules of international law. Consequently, in order to answer the question whether a given rule is binding upon a State as a rule of international law the point of departure must be whether or not that State has consented to the rule concerned.164
The problems of van Hoof’s adaptation are the same as Hart’s original, even though van Hoof manages to avoid the problem of ignoring international law. With van Hoof’s clear inductive expression of Hart’s theory, we can see how this method of founding the sources of international law is problematic. If we were to apply induction to customary international law, for example, we would be trying to prove the existence of custom-creating norms by the ‘practice of states’ alone.
The proof for the formula ‘customary international law is state practice plus opinio iuris’ would be obtained by a look at facts, in this case at state behaviour.
This, however, begs the question, for we would presuppose a method of proof which itself is the object of the investigation. If the explanation of the status of the law is modelled on what its subjects actually do, how can custom-based rule- conforming behaviour be distinguished from the violation of a customary norm?165 If all behaviour can transform law, the concept of law as an ideal, as something reality can be measured against, would be negated. How could one distinguish between fact and law when every fact is made law? Ens et bonum convertuntur returns from its scholasticist grave.
Hart’s theory is related to natural legal theory and there are important parallels in the matter of the bases or foundations of the legal system and of the sources of law between Hart and Verdross. This is not Hart’s ‘minimum content of natural law’,166 but a far more subconscious expression of underlying methodological communalities. The denial of the duality of Is and Ought is the same with both Verdross and Hart, even though it is an obscure denial with both. While Verdross’
theory can at least be reinterpreted to make it consistent with the dichotomy, it is much more difficult (if not impossible) to do so with inductive theories, such as Hart’s. Their reliance upon fact and fact alone, rather than some ‘Ought inherent
164 Hoof (1983) supra note 3 at 76.
165 Kramer (1988) supra note 141 at 407–408.
166 Hart (1961) supra note 36 at 189–195 (Ch IX.2).
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in fact’, makes them able to conceive of the reality of positive law, but not of the normativity of norms.
A variation of the inductive method can be found in Georg Schwarzenberger’s The Inductive Approach to International Law (1965). The purity of the title is not reflected within and it can be considered to be not really inductive. It is not inductive if one sees the basis of validity as the object of the method; it is induct- ive if one wants a working method for the identification of norms. Schwarzen- berger simply assumes Article 38 to be the relevant provision on which to build his theory, which is a deductive step. The inductive approach needs a referent by which to check the results of the induction or, rather, to clarify the ‘arbitrary origin’ of the induction. In order to do this Schwarzenberger postulates Article 38 as ‘having its sheet-anchor firmly embedded in the near-universally expressed will of the organised world society’.167 This ĩberbau of ‘law-creating processes and law-determining agencies’168 is deduced, not induced – it is the dogma Schwarzenberger does not question or validate. While the content of this ĩberbau is not objectionable from a strictly inductive viewpoint, the method employed to know it is.
The problem which this section set out to uncover is only acute if induction is used as determining the basis of validity of international law, rather than as an epistemological tool for the ascertainment of what is lex lata. A superior law must be determined deductively for the findings to be stable. Schwarzenberger did this, although he did not seem to realise that even if he could rationalise why he chose Article 38, the question remains why the reason for so choosing should be a valid one. Of course, this element of deduction opens up the question that plagues all deduction (Section 6.2.2).
Therefore, as against the inductive approach, it can be argued that it is redun- dant, since we cannot discover by induction the higher echelons of law merely by looking at behaviour and claims alone. If we purport to know or assume these higher echelons, we can deduce (with a limited role for induction) the lower level without constructing a system from scratch by way of induction. With the Pure Theory one can argue that the key lies in a combination of positivity and norma- tivity rather than in the exclusion of one element.