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Patrick Emerton
sufficient for a particular legal system to exist: that its rules of recognition, change
and adjudication ‘be effectively accepted as common public standards of official
behaviour by its officials’; and that the rules which are validated by the rule of
recognition – i.e., the laws of the system – be generally obeyed by those whom
they purport to govern.
12
The second of these conditions can be put aside for the
moment while we focus on the first – that is, on the claim that the rule of recog-
nition must be not simply a rule in some abstract or putative sense, but an actual
social, normative practice among the officials of the legal system in question.
13
This
requirement that the rule of recognition be an actual practice among the officials of
the legal system distinguishes that rule from the laws that it validates. As Hart says,
[I]t is plain that there is no necessary connection between the validity of any
particular rule [i.e., a law of the system] and its efficacy, unless the rule of rec-
ognition of the system includes among its criteria, as some do, the provision
(sometimes referred to as a rule of obsolescence) that no rule is to count as a
rule of the system if it has long ceased to be efficacious.
14
Whereas,
[A] rule of recognition is unlike other rules of the system. The assertion that it
exists can only be an external statement of fact. For whereas a subordinate rule
of a system [i.e., a law of the system] may be valid and in that sense ‘exist’ even
if it is generally disregarded, the rule of recognition exists only as a complex, but
normally concordant, practice of the courts, officials, and private persons in iden-
tifying the law by reference to certain criteria. Its existence is a matter of fact.
15
This picture clearly allows for an ‘invisible’ constitution, in two senses very
similar to those identified above in relation to anti-positivism: (1) the rule of
recognition may lie outside the legal texts, while nevertheless being crucial
in validating the promulgated texts as law; (2) the social practice that consti-
tutes the rule of recognition need not be something that would typically be
included in a catalogue of the legal phenomena that occur within a society.
When we think of typical instances of contemporary state law, this second
mode of invisibility may seem implausible: any introductory account of the
United Kingdom’s legal system, for instance, will make the point that statutes
(i.e., what the Queen in Parliament enacts) are law. However, systems that are
plural in their sources of law may include, in their rules of recognition, practices
12
Hart, The Concept of Law, 116.
13
For an argument that the rule of recognition might, at least in some cases, be an institution-
alised but non-normative practice among the officials of a system, see Brian Z. Tamanaha, A
General Jurisprudence of Law and Society (Oxford: Oxford University Press, 2001), 142, 152–5.
14
Hart, Supra note 9, 103.
15
Ibid.
, 110.
The Centrality and Diversity of the Invisible Constitution
151
of having regard to, or disregarding, phenomena that would not normally be
thought of as legal phenomena; and these practices of regard or disregard may
likewise not be thought of as legal in character. This can be illustrated even
by reference to Australian law, which (like the law of the United Kingdom)
includes not only statutes but the common law. Thus, in discussing the limits
of the declaratory theory of the common law, Gummow J observes that ‘there
may be an explicit change of direction, where, in the perception of appellate
courts, a previously understood principle of the common law has become ill
adapted to modern circumstances’.
16
To the extent that such changes in the
common law unfold as part of the collective action of the senior judiciary, this
must mean – in Hartian terms – that the rule of recognition extends to the
acknowledgement of certain social changes (i.e., pertaining to ‘modern cir-
cumstances’) as warranting changes in the judge-made law.
17
However, these
practices among the judiciary, of recognising certain social changes as rele-
vant to the way the common law is developed and declared, are not typically
included in catalogues of Australian legal phenomena.
However, to show the possibility of an invisible constitution on the Hartian
picture is not to show its necessity. In particular, the dependence of the rule of
recognition upon actual social facts is not sufficient to show that it is an invis-
ible constitutional element because – as we have already seen Hart discuss –
the rule of recognition might itself be written down as part of a written consti-
tution; and as we have also seen, even an unwritten rule of recognition may
be a well-understood and acknowledged legal phenomenon within a society.
Either possibility would be sufficient to render the rule visible.
If we consider the relationship of validation that – on Hart’s account –
obtains between the rule of recognition and the rest of the laws of the system,
however, there are additional considerations that are sufficient to establish
the centrality of the invisible to the constitution. That is what the rest of this
chapter will show.
5.3. ‘Thick’ Validation and Invisibility
There seem to be two main ways of thinking about the way in which valida-
tion occurs under a rule of recognition: one relatively thick, the other rela-
tively thin. The ‘thick’ picture of validation will be explained and analysed in
this section; the following section will deal with the ‘thin’ picture.
16
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