The English philosopher Richard Wollheim has remarked that the key reason why defining law is becoming problematic is due to the fact so it sought to accomplish different purposes. He states that jurists never have only been able to not clearly distinguish the definition of laws but also a criterion for the validity of regulation and a much more general way for the criterion of validity of any legal system. Now, whether a legislations is valid or not can be correctly tested up against the constitution of this country but striving to find out whether there is an existence of a formal general criterion that may be tested in virtually any legal system is a hard proposition because the "empirical characteristics'' ranges from one legal system to some other. This is exactly what Bentham and Austin in the nineteenth century and Kelsen and Hart in the twentieth hundred years have tried to find out with varying examples of success. A serious limitation of this method is that certain cannot say with certainty that a particular criteria which includes been picked can be applicable to the real content of other legal systems, since (as said early on) these have empirical characteristics definitely not capable of being restricted within this straight coat it is desired to impose upon them.
Kelsen wrote thoroughly through the 20th century. He assumed in the normativity of rules. The law, relating to Kelsen, is a system of norms. Norms are 'ought' statements, prescribing certain settings of carry out. It expresses not what it is, or must be, but what to be, given certain conditions. Its lifestyle can only suggest its validity, and this refers to its connection with something of norms which it forms a component. Quite simply, they are restrictions placing forth how people are to act. It cannot be proved to exist on facts, but simply to be derivable from other norms, and is, therefore valid in that sense. Used, as norms are concerned with human conduct, there must be some ultimate norm on which all the other norms recovery.
Unlike moral norms, relating to Kelsen, legal norms are always created by functions of will. Such an act can only just create law if it is in accord with a 'higher' legal norm that authorizes its creation in that way. As well as the 'higher ' legal norm, subsequently, is valid only when it has been created relative to yet another, even 'higher' legal norm that authorizes its enactment. Inevitably, Kelsen argued, one must reach a spot where the authorizing norm is no more the product of any action of will, but is merely presupposed, which is, what Kelsen called, the Basic Norm. He also said that in tracing back such a 'chain of validity' you might reach a spot where "a 'first' historical constitution is the essential authorizing norm of the rest of the legal system, and the essential Norm is the presupposition of the validity of that first constitution. "
So way as the legal system is concerned this basic norm must be extra-legal, since it generally does not rest after another legal norm. But Kelsen also point out that the choice of the basic norm is not arbitrary and he shows that it must be determined by the legal scientist on the principle of efficacy, i. e. to say that the legal order all together must rest on the hypothesis that is more often than not reliable, in the sense that people carry out themselves in conformity with it.
On the other hand, Hart's guideline of acceptance also determines the standards which govern the validity of the rules of the machine. There are, matching to Hart, two lowest conditions necessary and sufficient for the existence of a legal system. These are "those guidelines of behaviour that are valid in line with the system's ultimate criteria of validity must be generally obeyed, and its own rules of reputation specifying standards of legal validity and its guidelines of change and adjudication must be effectively accepted as common general population standards of standard behavior by its representatives. ''
The first condition should be obeyed by private people plus they may obey for just about any reason. The next condition must be satisfied by the officers of the machine and they must regard the secondary rules as general ideas of official behaviour and determine decisively their own and each other's deviations. They need to accept the rule of reputation and monitor them from, what Hart calling, 'the internal point of view. '
Hart's main idea is that we now have two guidelines of acknowledgement - most important and secondary. Matching to his principal rule of acknowledgement, he says that in a culture there are certain rules which inform people to do or never to do certain things. Thus they lay out protection under the law as well as obligations. These primary guidelines are to do with physical matters. The principal rules include those that prescribe or prohibit certain forms of action and those which permit individuals to realize their wishes with the help of specified strategies creating rights and tasks enforceable at laws, e. g. by causing a contract or will. Extra rules, on the other hands, presume the life of primary rules. They provide ways of ascertaining what regulations is, of producing new regulations or changing or abolishing old ones and they define the task to be used in applying the laws. Quite simply, secondary rules are the guidelines conferring or determining legislative and judicial capabilities.
Hart has offered the idea of legislation as a union of two varieties of guidelines: one enjoining carry out, the other conferring capabilities. Such a conception must concern itself first with the question of why legal guidelines are binding, so Hart proceeds to look at the matter of legal obligation. He then discusses the necessity for blend of two sorts of rules in an operating legal system that assists the need of the world that has advanced beyond its most primitive phases. Finally, he addresses the matter of legal validity and the thought of a guideline of acceptance is developed to provide a criterion for distinguishing phony boasts from true ones.
Hart retains that in this mixture of both types of rules alternatively than in the idea of a coercive order is usually to be found 'the key to the knowledge of jurisprudence '. In other words, in a legal system, as well as the primary rules there are also secondary guidelines by the help of which you'll be able to decide whether something is female rule or not and exactly how it is to be interpreted and adjudicated upon. The idea of a sovereign legislator in the sense of a legislator unrestricted by law is not required. What's needed is a 'rule of acceptance' that is a rule providing the standards for identifying the principal rules. This rule of identification is ultimate in the sense that there is no further guideline to assess its validity.
Thus, after reading and looking at both Kelsen and Hart, it gives one an idea that we now have similarities as well as variations between Kelsen's basic norm and Hart's rule of identification.
The guideline of identification has some resemblance to Kelsen's Basic Norm. The main difference is that while Kelsen thinks the validity of his basic norm should be assumed or postulated, Hart considers that his guideline of acknowledgement can be ascertained by reference to genuine practice.
Hart admits that the rules of popularity, though not overtly portrayed, can show how particular guidelines are determined by the courts and other officials. Whether a primary rule is 'valid' really sums to saying only that it passes all the assessments provided by the appropriate rule of identification.
Like Kelsen, Hart seems to notice that such rules may themselves be shaped over a hierarchical pattern and that, therefore, the validity of one or more of these rules may depend upon some higher rule of recognition. It is here that we see some traces of Kelsen's argument.
But the question regarding the position of any ultimate rule since the only point is whether it is accepted by those who generate the system. There may be therefore no assumption of validity but its popularity is simply factual.
The rule will provide requirements of validity within the system and therefore it will probably be worth phoning such a rule, law: there is however also a case for dialling it simple fact insofar as it depends for its lifetime upon actual popularity. This fact of popularity may be appeared after from two factors of view, particularly, from the idea of view of the external statement of idea that the rule is accessible in the real practice of the system, and also from the inner claims of validity which may be made by those within an established capacity who actually use to recognize law.
Hart also points out that, although the notions of validity and efficiency may be strongly related in a legal system, they are by no means identical. He says that if there is so little effectiveness in a whole system of law, then it might be really pointless to attempt to assess what real rights and obligations might are present thereunder or the validity of particular rules.
As to the question whether every system of laws must be referable for some basic norm, Hart rejects Kelsen's view that this can be an essential assumption of all legal systems. Everything that it means, where a system lacks a basic norm, is the fact there will be no chance of indicating the validity of specific rules by indication to some last rule of the system.
There are also interesting similarities and differences between Kelsen's basic norm and Hart's rule of recognition. Both rule of recognition and the essential norm slumber on the idea of chains of normative validity; a particular legal norm is only valid since it has been authorised by a more general or more basic legal norms. The chain of validity must end anywhere; with a foundational norm that holds no more justification, apart from its acceptance or it's having been presupposed. It is again important to note the difference of approach and strategy here: hart's theory is meant as an analytical description of actual tactics, while Kelsen searched for a theory purified even of sociological observation.