Hart's Theory of Acceptance
Paradox of Self-Amendment Table of Contents
A. Salient points from Hart's text
Hart's theory of acceptance is complex. He can banish the specter of Ross's
paradox only if he succeeds in arguing that acceptance and usage can confer legal
status on new rules of change. This is equivalent to arguing that not all legal
change occurs through inference-like transfers of authority from prior norms, or that
the people and officials of a legal system can accept as law a self-amended AC that
contradicts its predecessor. Hart undoubtedly urged his acceptance theory for
different programmatic reasons than to make possible the legal change of the rules
of change. But that he urged the theory at all allows him, within a systematic
philosophy of law, to answer Ross and provide an alternative to immutability and
This is not the place to assess every aspect of Hart's complex theory. But we
should ask exactly what acceptance is. Hart defines acceptance primarily via
negativa or by denying its identity with similar phenomena. One of Hart's first
concerns in The Concept of Law is to show the inadequacy of John Austin's theory
that laws are commands or coercive orders backed by threats given by a person or
body whom the populace habitually obeys. Hart rejects almost every element of
this theory, and therefore is careful to avoid identifying acceptance with habitual
obedience or mere convergence of behavior (54ff, 73).[Note 1]
He is equally concerned to distinguish his theory from the natural law
tradition that makes the final validity of positive law depend on its conformity to
moral law. Hence acceptance is not normative in the moral sense. It is independent
of consent (168). It is normative only in that it reflects an attitude —called the
"internal" point of view— that conduct is prescribed by rule rather than accidentally
convergent. It avoids the descriptive position that looks only to public force,
private feelings of obligation or compulsion (56, 85-86), and psychology (136), as
well as the "external" point of view that sees rules as binding only on some other
group that accepts them. It is not acceptance of a moral ideal, but only of legal
authority (98, 198-99).
Moreover, acceptance must differ from custom because, in Hart's theory,
custom has no law-making effect until and unless it is itself recognized or accepted
as law (44f, 98). Acceptance may be comprised, at least in part, of social pressure
or expectation to conform (56, 84, 85, 165). But social pressure and expectation
cannot be the whole story or else the distinction between law and morality would be
blurred (165ff). Hart is proud of the fact that acceptance and usage, while they are
distinct from habit, convergence of behavior, moral approval, custom, feelings, and
mere social pressure, are nevertheless matters of fact, not of metaphysics or
mystery (62, 101, 107).
Acceptance validates or authorizes the ultimate rule of recognition (92, 93,
97, 106, 205, 229). The rule of recognition is accepted as common, shared, or
communal to all members of the society, even if obedience is "each for his own
part" (112-113). Acceptance also validates some other types of law, such as
standards of judicial review (142), cases of first impression and other judge-made
rules (149-50). These examples show that Hart's acceptance model does not
require the authority of a law always to precede the law in time (see Section 6.C).
Acceptance can, but need not, catch up with acts that precede or exceed their
authority. Even when acceptance bypasses or overrules the rule of recognition, it
makes law, not merely an excuse for putting up with illegality or a climate that
makes any inquiry into legality futile.
In primitive legal systems without secondary rules acceptance directly
validates or authorizes all law (230). In international law, where there are some
secondary rules but, Hart says, no general rule of recognition, he is less sure
(230-31). However a "transition towards acceptance" is possible in international
law today (231). If any rule of international law applies to a nation that does not
assent to it (for example, by treaty), then international law must have a rule of
recognition that so held; but Hart doubts that any rule binds nations without their
assent and therefore doubts that there are any international legal rules that
acceptance could validate even in the absence of a rule of recognition (230-31).
However, he says that treaties bind only because rules external to the treaties
say they bind (219, 231); he applies the same principle to contracts (42, 220). I will
call this the irreflexive view of treaties and contracts, as opposed to the reflexive
view that they bind ex proprio vigore or by their own strength. Hart's assertion of
the irreflexive view would be vitiated if he believed that the external rule that
validated treaties could be brought into effect merely by the agreement of the
parties to a treaty. Yet he does not say whether it is validated by acceptance, a rule
of recognition, or something else. The problem of reflexive and irreflexive
validation will not go away and will be considered at greater length below.
When accepted, the rule of recognition is made law, not merely an
assumption, postulate, or hypothesis (105) and not merely a "pre-legal" or
"meta-legal" rule, or mere "political fact" (108). Acceptance, therefore, does more
than support law by assuring compliance and preventing revolt; it makes or defines
law. Legal rules bind if and only if they are accepted as binding (226, 230).
The rule of recognition is "fact" (107, 108) in that it exists only in the actual
practice of officials (105, 106). The law made or defined by acceptance is not a
brooding omnipresence, a prediction of future judicial behavior, or a formal ideality:
it is fact and practice, an observable social reality. The rule of recognition is
usually tacit (98) and is ascertainable only by empirical observation of the practice
of officials of the system (98).
Incidentally, Hart does not address the question whether the ultimate rule of
recognition is law only because it is accepted, or whether it also recognizes itself in
self-application (but see 104, 108). But while the rule of recognition is law, it is the
only law that cannot be called valid or invalid; it is "simply accepted as appropriate
for use" (105, see 106). In context Hart implies that it cannot be valid because it
cannot be said to conform in the usual way to the criterion of validity, which is
itself, the rule of recognition. To use his analogy, we could say that the standard
meter bar in Paris is one meter long by its own standard; nevertheless, we know it is
a meter, not from self-application, but from agreement or acceptance to consider it a
meter (106). The rule of recognition, then, is law only by acceptance, it seems, and
not also by self-application. Acceptance itself, however, is not law but only the
authority for law. Whether acceptance is the proper or "authoritative" authority for
law only because it is accepted, in self-application, that is, whether we should take
a reflexive or irreflexive view of acceptance itself will be discussed below (Section 7.B).
Sometimes Hart suggests that acceptance in the sense intended is performed
only by the officials of the system (106, 107, 108, 111, 113, 114, 118), sometimes
by ordinary citizens (114, 121, 142), and sometimes he insists that citizens and
officials are both needed (59, 98). Once he says that the practice of a "social
group" suffices (106).
To the extent that citizen participation is necessary, we must distinguish
citizen acceptance from obedience. Obedience is at least necessary (113, 197), and
possibly sufficient (111). Citizens contribute to acceptance primarily through
"acquiescence" while officials contribute primarily by explicit acknowledgement of
rules as law (59-60), doing their jobs (59-60), appealing to the tacit rule of
recognition (99), and by using the law from the "internal" standpoint (99). At the
same time, acceptance defines the internal standpoint (86, 99, 135), and the internal
standpoint defines acceptance. Both citizens and officials display their internal
standpoint or acceptance by accepting not merely individual legal rules, but rules
that commit one in advance to accept future rules (229, 230). Citizens display
acceptance by "acting in a certain way" (136) and justifying their action by citing
rules and criticizing departures (136). Hart sometimes speaks as if acceptance of a
rule of recognition can be displayed by "the general operation of the system" (105).
In any event, the acceptance given must be voluntary (197, 198), even if it is
induced by attitudes that are indirect products of law itself (172, 196, 199). It is the
voluntariness of acceptance that creates authority, not just another social fact (196).
Acceptance of law is not morally obligatory (198).
Certainly citizens need not consent to the criterion of legal validity embodied
in the rule of recognition, nor need they even agree among themselves on what it is.
To require anything as express or deliberate as consent or knowledge is the
"opposite error" from Austin's requirement that citizens habitually obey (111).
Acceptance by officials presupposes some understanding (59), but citizen
acceptance or obedience must be conceived consistently with the "realistic" fact
that citizens are normally "passive" participants in the legal system, and frequently
do not even know what the law is (47, 60, 110-11, 114).[Note 2]
This shows how far Hart's acceptance theory is from a classical consent theory of
law, and shows his intent to explain legality, not legitimacy.
Hart leaves somewhat unclear exactly what function he believes acceptance
serves in a legal system. It may indicate that rules exist, that they are valid, that
they are efficacious, or that they form a system. As noted, acceptance clearly
makes the rule of recognition law, but not "valid" law. Acceptance at least
indicates a rule's existence (57, 142); widespread disobedience can indicate non-acceptance and hence, non-existence (142). For ordinary rules, existence and
validity are probably not to be distinguished under the acceptance theory, at least if
the rules exist only in the practice or usage of the people (106). But the efficacy
and the validity of rules are distinct, unless the rule of recognition includes a rule of
desuetude (100). But normal inefficacy does not suggest lack of acceptance, and
therefore does not imply invalidity (100-01). However, "general disregard" may
imply invalidity regardless of the presence or absence of a rule of desuetude,
because it may imply lack of acceptance (100-01, 142; cf. 114f). Similarly, validity
does not imply efficacy, even if it implies general acceptance (100).
Acceptance at least functions to unify a set of rules into a system (59, 90, 91,
93, 106, 113, 118, 228f), but the acceptance need not extend either to consensus
among the members of the requisite group of people nor to consensus on all the
rules and criteria of validity of the unified system (118-19). Not only is unanimity
unnecessary, but the acceptance may be tacit rather than express, inferred from
usage and practice (99, 106, 107) and acquiescence (60). Some practices constitute
explicit acceptance (59). To achieve its law-making or recognizing effect, practice
need only be "general" (98) or "normally concordant" (107), and the standards
"unified or shared" (111). However, disunity may reach a point at which the system
becomes "pathological" and one may question whether it still exists or is still the
same system (100, 114-20, 141).
The fundamental role of acceptance, and the participation of citizens in it,
does not imply for Hart that "the people" are sovereign, even in their capacity as
electors in a democratic system (70-76). Sovereigns are constituted by rules that
are validated by acceptance; they are not the makers of those rules (75, 218). But
whether acceptance is the officials' or the people's, active or passive, tacit or
express, attitudinal or behavioral, knowing or ignorant, widespread or
pathologically scarce, it must be "effective" (113). Effectiveness requires majority
acceptance but not unanimity (89, 226). The effectiveness of acceptance is a
generally undefined, probably a conclusory, term in Hart's work.
B. Hartian acceptance self-applied
One of the weaknesses of the inference model is that it cannot deal with the
circularity and inconsistency of some legal processes. It must declare them invalid
even when accepted by the people and the courts. The acceptance theory can cope
with the self-contradiction and circularity of self-amendment, but it eventually
becomes enmeshed in a circle concerning its own authority to authorize rules and
practices. Is acceptance the proper source of authority only because it is accepted
as such? Here I will ignore weaknesses of the acceptance theory not relating to the
self-application of acceptance (but see Section 21.D).
Hart gets into this circle by his theory that official practice discloses
(otherwise tacit) rules that state that such practice is lawful in that system. I will
call this view the normative practice doctrine. If officials appeal to acceptance, then
by the normative practice doctrine that appeal to acceptance hides a rule authorizing
the appeal to acceptance. If officials appeal to acceptance, and not merely to rules
authorized by acceptance, then Hart is bound to this circularity. Acceptance, which
was supposed to ground the legal system alegally, and sit inertly outside the
entanglements of rules, is caught up by the normative practice doctrine in a
rule-bound web of self-justification. What was supposed to be social and historical,
not rule-like, becomes rule-like under the normative practice doctrine.
As we will see, there is a sense in which officials for Hart do appeal to
acceptance, not merely to rules authorized by acceptance; there is also a sense in
which Hartian acceptance is circularly justified even if officials do not appeal to
Is there a rule holding that what is accepted and used as law thereby is law?
(1) If there is such a rule, then its authority may be questioned, and Hart may want
to find its authority in acceptance. In that case acceptance would justify the rule
that justified acceptance, which might be fatally circular. If there is such a rule but
its authority does not lie in acceptance, then the acceptance model does not explain
that rule and therefore does not explain the ultimate source of legal authority. (2)
But if there were no such rule, then either acceptance is not justified in authorizing
law, or else it justifies itself without a mediating rule. Moreover, it would be
untrue, Hart notwithstanding, that a genuine rule of recognition could be inferred
from the practice of officials in deciding what is law.
If there is a rule to the effect that what is accepted as law is law,[Note 3]
then in Hart's terms such a rule would be a secondary rule of recognition —the type
of ultimate rule that is only validated or authorized by acceptance. Hart says we
can tell what the rule of recognition is in a society by the empirical means of
looking and seeing how officials identify valid rules (98, 106, 107).[Note 4]
If acceptance in the appropriately complex sense is the criterion of validity in a
society, at least for ultimate rules, which Hart believes is the case, then empirical
investigation should reveal the fact, and by Hart's terms we must call it a rule of
recognition for recognizing the other rules of recognition.
But abandoning the normative practice doctrine would not allow Hart to
preserve his empirical approach to law, that wants to identify tacit rules by
observing practice. Without it, tacit rules might only be discerned as Ross came
upon his tacit, transcendent, immutable, and universal rule: by a priori speculation
on what is needed to make sense of what happens, without regard for what people
and courts accept as making sense.
Another way to avoid the circularity would be to distinguish two species of
acceptance. The first is the complex sort actually articulated by Hart which is used
to authorize the rule of recognition. The second, simpler type could authorize the
former type through passive toleration and acquiescence. This remedy looks
suspiciously like meaningless hairsplitting, inventing a distinction without a
difference just to avoid a circularity. It might commit us, as well, to an infinite
regress of species of acceptance in which each new one is invoked to rescue its
predecessor from circular justification.
Or the circularity might be acknowledged and defended. It is not vicious.
Hart's theory is not circular; it is an irreflexive theory of a circular or reflexive
phenomenon. As such any charge of fallacy on account of that circularity will beg
the question of the nature of the explanandum: for acceptance might truly be
authoritative only because it is accepted as authoritative.
The statement that acceptance is the ultimate criterion of legality because it is
accepted as such, or because it authorizes a rule that authorizes it, is in content
simply an expansion of Hart's statement that the ultimate rule of recognition is the
ultimate criterion of validity about which it is irrelevant to speak of validity and
invalidity (105). If we accept this formulation, then the circularity is as harmless as
that in the statement (also arguably to be found in Hart at 45) that customary law is
law because it has customarily been law.
One might object that acceptance is not law, and therefore need not be
authorized, at least not by a rule for recognizing law such as a rule of recognition.
This objection may be sound jurisprudence, but it ignores the fact that acceptance is
the rule of recognition for the other rules of recognition, according to Hart's
normative practice doctrine.
We can avoid the self-authorization of acceptance without abandoning the
normative practice doctrine by two minor and plausible moves that Hart could well
endorse. First, we must explicitly state that acceptance is not law. Second, we
must modify the normative practice doctrine to hold that rules of recognition may
be inferred from the various practices of officials in deciding what is law except for
their practice in deciding what the rule of recognition is (that is, in deciding how to
decide what is law). The second move is the important one. Even if plausible, it
might well weaken the theory, not strengthen it, for it would leave acceptance
unjustified, on a par with a thousand and one social phenomena that neither
authorize law nor receive authority from law. Those who are happy that Hart made
the ultimate authority of law a matter of observable fact ignore the consequence that
Hart has made it impossible to ask whether the admittedly actual, authorized law of
a given system is acceptable. If it is accepted, then his inquiry stops.
If acceptance is authoritative only because it is accepted, then its authority is
self-justifying. Hart did not explicitly argue to this effect, but one may point out
that a self-justifying ultimate authority is preferable to the alternatives: an infinite
regress of authorities and an unjustified authority. Moreover, the self-justification
of acceptance is preferable, on moral and political grounds, to the self-justification
of oligarchy, monarchy, or the ipse dixit of the first aspirant to seize the reins of this
logic. In the inference model rules are justified or validated by other rules. If every
rule is to be justified, there must be an infinite regress, a self-justified rule, or at
some point higher rules must be validated by lower rules. To avoid an infinite
regress and a counter-hierarchical "stooping" for justification (which is another
form of circular justification), the ultimate rule must be self-justifying or
unjustified.[Note 5] The inference model cannot abide
self-justification and in strict forms cannot admit exceptions; hence it must rest with
an unjustified or arbitrary ultimate rule. The acceptance model, however, allows
lesser rules to be validated by higher rules and allows an escape for the ultimate
rule: it is not justified or validated by another rule within the system, but by the
acceptance of the people. Such a move anchors the artificial system of rules in
empirical, historical actuality, a side effect of the theory that Hart is very concerned
Logicians would be horrified to imagine that acceptance could provide
anything like validity or authority to a rule, let alone validity or authority to itself.
Acceptance provides no logical support, neither deductive nor inductive, and is as
irrelevant to a rule's validity as personal opinion. But here is the crucial difference
between legal and logical rules. Logical rules cannot be created, changed, or
invalidated by counting votes or heeding the expressions of human will. Legal rules
can be. The reason is not that legal rules use a different logic, or irrelevantly
depend on belief rather than truth, but that legal rules are products of human history
and not merely human thought. Whether a logical system should possess a theorem
that says this rather than that is a question subject to rigorous methods, all abstract
and determinate, even if inconclusive; but whether a legal rule should say this rather
than that depends on an indefinite number of factors, some themselves indefinite,
and always on acceptance.
Can counting votes, however, make law unless there is a prior law that
authorizes it to make law? Ronald Dworkin has argued that[Note 6]
Some part of any constitutional theory...must stand on its own in
political or moral theory; otherwise the theory would be wholly
circular....It would be like the theory that majority will is the
appropriate technique for social decision because that it what the
Dworkin would apparently be content if majority rule were justified by a political
morality external to law. If this political morality is superior to other political
moralities even in part because it is favored by the majority in that legal system,
then circularity returns. But this circularity is different from a circularity within the
legal system. A basic legal rule may justify itself (such as majority rule by a
majority vote); because it is a legal rule, the circularity is within the system. If a
basic rule is justified by something outside the system, such as acceptance or a
political morality, and that alegal phenomenon is self-justifying, then the circularity
is not within the system.
The difference between these two kinds of circularity would be small and
negligible if it were not for the political morality of the people and the limits on
what they will accept. For a circularity within the system may justify anything, as
tyrants establish tyranny or give themselves the power to give themselves power.
We curb that kind of abuse, first of all, only if we dislike it, and second, only by
making authority finally depend on a moral doctrine accepted by (or acceptable to)
a significant fraction of the public. The accepted morality will be circularly justified
outside the system, that is, it will be the final source of legal authority only because
it is morally accepted by that same public.
If we wish to avoid circular justifications of ultimate rules within the system,
because of their liability to abuse, and if we wish to avoid an infinite regress of
authorities and an unjustified authority, then we must locate the final source of legal
authority outside the system. If that source is not to be self-justifying, then we are
landed in the absurd position of requiring (for example) that the values that justify
majority rule disregard the will of the majority or that the values that justify the
appeal to acceptance of the people disregard the acceptance of the people. These
reflections suggest that a self-justifying alegal source of legal authority is less
absurd than the alternatives.
Hart almost certainly did not foresee that the normative practice doctrine and
the acceptance theory combine to give acceptance a circular authority, rather than a
status beyond authority. But that outcome is not to be dismissed lightly.
Hart does not elaborate his theory sufficiently for us to say whether he
believed that acceptance authorizes law because its function as a source of authority
is accepted, or whether it authorizes law regardless of the beliefs and widespread
dissent of the people and officials. Conceivably, acceptance could authorize law in
a society in which the people and officials believed that only a deity could authorize
law. This is only apparently denied by the proposition that acceptance is self-justifying. If the people do not accept the proposition that law is authorized by
acceptance, and instead accept the view that law is authorized by the deity or the
army, then these alternative theories are supported by acceptance and nothing more.
Acceptance is not supported by acceptance, but nothing can authorize law unless it
is accepted as authorizing law. Whether acceptance is omnipotent and can use its power to limit, change, or end its power is further discussed in Sections 8 and 21; I will argue that it has continuing omnipotence and is the true basis of the people's
The merit of a self-justifying alegal ultimate source of legal authority may be
made clearer by another example. Paul Brest notes that the supremacy clause of the
federal constitution (Article VI, §2) declares the whole constitution of which it is a
part to be supreme. He adds that "a document cannot achieve the status of law, let
alone supreme law, merely by its own assertion."[Note 7]
Brest is right. The supremacy clause is made true either by a prior rule to regard
the words of the constitution as authoritative (which virtually makes the supremacy
clause surplusage), or by direct acceptance of the terms of the clause.
This is more conspicuous with Article VII, the ratification clause, which
declared the constitution "established" upon the affirmative votes of any 9 of the
original 13 states. Upon the ninth affirmative vote (New Hampshire) the
constitution became established by its own test.[Note 8]
The words of Article VII did not authorize that establishment, but they tell us that
establishment is authorized by the will of the ratifiers. The constitution was
established because it was accepted; more particularly, it was established when and
because the condition it layed down for establishment was accepted by the ratifiers.
These examples show the acceptance theory in a context where its
contractarian elements come to the fore. A legal system which people and officials
encounter in media res is accepted or not without contract principles entering the
picture in any strong form.[Note 9] But the initial establishment of a legal
system, under the acceptance theory, requires a creative type of acceptance that will
always resemble a social contract on many points. Article VII is self-justifying in
the sense that it states the acceptance-terms of the federal contract, and is law
because it was accepted or ratified by its own terms.[Note
Hart gives contradictory suggestions on the question whether a rule is needed
to authorize the ultimate rule of recognition. His general support for what I have
called the normative practice doctrine supports the existence of a rule justifying
acceptance, insofar as acceptance is used in practice to identify the rule of
recognition. On the other hand, Hart just as clearly believes that the rule of
recognition is neither valid nor invalid (105), nor justified by a rule (104). When
Hart is thinking on these lines we should assume that he would say the same of
acceptance a fortiori. His irreflexive theory of treaties and contracts is suggestive
in this light. Treaties and contracts do not bind just because the parties agree to be
bound; they bind only if made within a legal system containing a rule that states that
mutual promises bind (40, 219, 220, 231).
If we take the liberty of applying this contract theory to the establishment of a
new regime, either because of the contractual elements in it or on the evidence of
Hart's general disinclination to cite reflexive sources of authority, then Hart would
not allow a self-justifying act of legal creation. He would not allow a contract-like
constitution that decreed that it would be valid if ratified in a certain way, and
actually was so ratified, unless the act of ratification could be construed to take
place in an already legal context in which a valid rule stated that constitutions so
decreeing and so ratified will be valid. He would probably deny the
self-justification of the constitution and rest its authority on acceptance which
neither needed nor received any further authorization.
By analogy to his contract theory, Hart might say that acceptance would not
operate to confer legal status on a rule of recognition or a constitution unless
manifested within a system containing a rule that acceptance should so govern. The
absurdity of requiring new systems to be made only in larger, preexisting systems is
more than just another way of denying a right to revolt; it also denies the legal
capacity to recover from discontinuity. It may have its own merits but Hart could
not tolerate it, for it implies that a revolutionary regime could never become legal,
even after 200 years of acceptance by the officials and the people. Like the strictest
inference models, it implies that every lawful regime requires an infinite genealogy.
Hence, we should abandon Hart's irreflexive theory of contracts and treaties insofar
as it leads to these consequences in conflict with the acceptance theory, which is
more central to his work and more defensible on its own merits. If contracts derive
their binding force from the parties's agreement, not an external rule that agreement
binds, then, as noted earlier, the AC of a contract could be amended without
paradox, for the authority of the new rule would derive from the sufficient
agreement of the parties, not the old clause or an external rule.
Hart is clearly inconsistent on the question of the existence of a rule
authorizing acceptance to authorize law. I believe the acceptance model of
authority is separable from both the normative practice doctrine and Hart's
irreflexive view of contracts. In fact I believe the most sensible way to render Hart
consistent is to abandon his theory of contracts and allow agreements to bind ex
proporio vigore, independently of any other legal rules. The self-justification
involved is harmless as well as theoretically desirable to explain the initial
establishment of legal systems or the "legalization" of a system that broke off from
another. The normative practice doctrine does not affect this question significantly.
If retained, it leads Hart to a circularity which he did not intend but which is
harmless and in any case preferable to the alternatives; if abandoned, acceptance
authorizes law as a matter of fact, not because it has a prior or higher justification
for doing so.
The views that acceptance is self-authorized and that it is beyond authorizing
are equally acceptable as solutions to the paradox of self-amendment. Like
agreements to contracts, acceptance of law is sufficient by itself, either because it
needs no justification or because it justifies itself, to give authority to legal rules.
Like agreements to contracts, acceptance of law is an anchor to legal rules in
historical actuality; it avoids the need for an inference model that forbids
self-justification and requires incomplete justification or infinite regress.
1. H.L.A. Hart, The Concept
of Law, Oxford University Press, 1961. All subsequent references to this work
in this section will be kept in the text in parentheses. [Resume]
2. My argument in Section 2
that the people's failure to use their AC could show their consent to be
governed by their constitution, provided the "consent" not to use the AC was competent by some cognitive and volitional standards, obviously required some citizen understanding of their legal system. Therefore it is consistent with Hart's statement, op. cit., at p. 76:
Failure to exercise an amending power as complex in its manner of
exercise as that in the United States constitution, may be a poor
sign of the wishes of the electorate, though often a reliable sign
of its ignorance and indifference.
If the people's role in acceptance must be compatible with their
ignorance or indifference, much of the validating burden of acceptance is
shifted to the role of the officials. But Hart has been criticized on this
point for failing to clarify the relation between the contributions of the
people and the officials of the system. See e.g. Hugh Williamson, "Some
Implications of Acceptance of Law As A Rule-Structure," Adelaide Law Review, 3
(1967) 18-45 at p. 28; and Gabriel Mosonyi, "Legal Obligation, Social
Acceptance and the Separation of Law and Morals," Connecticut Law Review 6
(1973) 36-48, at 37.n.14.
If a reflexive theory of legal authority that permits some kinds of
self-justification is rejected for its potential to validate tyranny, then the
same potential in Hart's irreflexive blessing of ignorance should not be
3. Even if this proposition
is difficult to find in Hart, it is found in another acceptance theorist. See
Conrad Johnson, "The Rule of Law and the Closure of a Legal System," American
Journal of Jurisprudence, 18 (1972) 38-56 at p. 39. [Resume]
4. Hart also says, against
this view, that there is no rule of recognition in international law (230-31),
even though there is clearly an official practice of identifying what is to
count as international law. [Resume]
5. It is for reasons of
this kind that Joseph Raz accepts the self-justification of some legal rules,
especially of constitutions made in territories where no prior constitutions
exist to authorize them. See his The Concept of a Legal System: An
Introduction to the Theory of Legal System, Oxford University Press, 1980, at
pp. 138f. [Resume]
6. Ronald Dworkin, "The
Forum of Principle," New York University Law Review, 56 (1981) 469-518 at p.
7. Paul Brest, "The
Misconceived Quest for the Original Understanding," Boston University Law
Review, 60 (1980) 204 at p. 225. [Resume]
8. For the view that the
constitution did not become established until the 13th state (Rhode Island) ratified, Article VII notwithstanding, see Appendix 1.D and T.R. Powell,
"Changing Constitutional Phases," Boston University Law Review, 19 (1939)
509-32. Powell's argument is based on the fact that amendment under the AC of
the Articles of Confederation required unanimous concurrence of the states.
The AC of the Articles of Confederation was the highest rule of change in
effect at the time; to disregard it was to make revolution.
The Supreme Court was never asked to rule on this question directly, but
in ruling on when the contracts clause became effective it ruled that the
ninth state (New Hampshire) sufficed to ratify the constitution, making the
constitution effective on the first Wednesday of March, 1789. Owings v.
Sneed, 18 U.S. 420 (1820). It ruled, incidentally, that there was no overlap
between the governments of the Articles of Confederation and the government of
the new constitution. It ignored both the question of the self-justification
of the new Article VII, and the question of the violated AC of the Articles of
Confederation. See Appendix 1.D. [Resume]
9. But see Socrates's
argument in the Crito that, by not leaving Athens and benefitting from it, he
is bound to obey its laws. Similarly, the argument is sometimes made that one
consents to the jurisdiction of a state's courts by benefitting from state
10. A persuasive argument
that self-justification is unnecessary in establishing a new legal order —the
irreflexive view of revolution— is made by J.M. Eekelaar, "Principles of
Revolutionary Legality," in A.W.B. Simpson (ed.), Oxford Essays in
Jurisprudence, Second Series, Oxford University Press, 1973, pp. 22-43.
Eekelaar argues that the sort of principles which Ronald Dworkin distinguished
from Hartian rules may survive a revolution and justify a court in declaring
that a new regime is the lawful sovereign or that the new leader is the lawful
executive. He believes that such court findings in Pakistan (1959), Uganda
(1966), and Rhodesia (1968) need not be based on judicial fear or the alleged
tautology that by hearing the cases at all the courts must have been
reconstituted under a new legal order which is therefore already legal. At p.
24 he argues that there can be legal reasons for accepting a rule of