The Change of and in the Rule of Recognition

Like Kelsen, Hart, also takes into account a number of situations in which the rule of recognition of a legal system may be thought of as it has changed. Hart considers situations, like a revolution, or an ex-colonial country retaining its independence etc., in all of which the rule of recognition, which existed before the mentioned situations occurred, ceased to exist. Therefore, a new rule of recognition replaced the old one.464 However, for our concern here, this is a less problematic aspect. What is more important for us is to examine under what conditions (the part of) the rule of recognition of a stable legal system is thought to be changed. Namely, it is more crucial for us to take up the change in the rule of recognition instead of the change of the rule of recognition.

In this regard, Hart’s example from South Africa may be of use. In the example, the officials in South Africa (parliament, the special appellate courts created by the parliament and an ordinary court) disagreed on what counts as law as to the power of the legislature. The problem was initiated by adopting a politically problematic law attempting to disenfranchise non-white voters, but it was declared null and void by the Court of Appeal,465 and then a series of political and legal contestations followed. The Parliament adopted another act, by means of which it created a special appellate court, which would decide the first case again. But this act was also declared null and void by the court. It was a dramatic, albeit short-lived, breakdown among the officials on the issue of legal power of the legislature of the time.

463 _{Himma, “The U.S. Constitution and the Conventional Rule of Recognition”, p.111.} 464

Hart, The Concept of Law. pp. 118-122.

465_{Ibid. p. 122. The case Hart refers to is Harris v. Dönges, which concerned the South African Act 46 of 1951}

(known as the Separate Representation of Voters Act) that attempted to disenfranchise non-white voters, but it was declared null of void by the South African Court of Appeal of the time. The reason for declaring the Act null and void stemmed from an attempt to repeal by an ordinary parliamentary act of an entrenched provision of the South African Constitution, which reads: Parliament may by law repeal or alter any of the provisions of this Act

... provided ... that no repeal or alteration of the provisions contained in this section 5 or in sections 35 or 137 shall be valid unless the Bill embodying such repeal or alteration shall be passed by both Houses of Parliament sitting together and at the third reading be agreed to by not less than two-thirds of the total number of members of both Houses. For the quotation of this provision and on the case see H. L. A. Hart, Essays in Jurisprudence and Philosophy (London ; New York: Clanderon Press- Oxford, 1983), p. 174. For further detail of the case see

D. V. Cowen, “Legislature and Judiciary. Reflections on the Constitutional Issues in South Africa: Part I” The

It seems to Hart avoids the question of whether this might lead one to think that the rule of recognition has (partly) changed or not. He prefers to treat this kind of situation, not the change in the rule of recognition, as pathology of legal systems. Nonetheless, we shall go one step further and undertake such an analysis.

The reason for such a consideration may be the result of significant disagreement (or a breakdown) among officials as to what counts as law in a highly significant constitutional question. It might be possible to consider such a situation as a change in the rule of recognition of the system – but under what conditions? Let us pose a question: might there be any case that would be interpreted as a change in the rule of recognition of a given legal system? If so, then, how?

The most relevant part in The Concept of Law is found in Chapter VII, where Hart makes an analogy between games and law. That analogy deserves to be given in full: “Up to certain point, the fact that some rulings given by a scorer are plainly wrong is not inconsistent with the game continuing: they count as much as rulings which are obviously correct; but there is a limit to the extent to which tolerance of incorrect decisions is compatible with the continued existence of the same game, and this has an important legal analogue. The fact that isolated or exceptional official aberrations are tolerated does not mean that the game of cricket or baseball is no longer being played. On the other hand, if these aberrations are frequent, or if the scorer repudiates the scoring rule, there must be come a point when either the players no longer accept the scorer’s aberrant rulings, or, if they do, the game has changed”466

So at a given time, if we are to make sense of talking about the existence of the rule of recognition, and thus of a legal system, there must be no persistent departure from its core meaning. If there is, then we move to the idea that the game, the rule of recognition, is in transition or change. If the departure is persistent – or even if it is not persistent but it gains acceptance by officials (and maybe citizens), then we can make sense of talking about the change in the rule of recognition. In a penumbral case, the consideration and acknowledgment

466

that the decision in that case is within the tolerable scope of the rule of recognition depends on its success, that is, its acceptance and accompanying practice by officials.467

In fact, the legal history, from different jurisdictions, is full of examples that can be interpreted in the ways Hart conceives.468 Suffice to recall the Marbury v. Madison case and its subsequent endorsement and the effect of this endorsement on the US constitutional law. From this unique case the institution of judicial review of legislative acts emerged, which was not (and is not), however, enshrined in the written text of the US constitution. Nevertheless, the practice is endorsed within the course of time and now it can be asserted that it is a consensually accepted practice in American constitutional law, 469 or as put by Samuel Freeman, it is taken for granted in the US legal system.470 So, without any further detail, we can say that the US Supreme Court decision in Marbury v. Madison has created an institution, which was originally not contemplated by the legal system, thus it was (considered to be) within the tolerable limits by the officials as well as by citizens of the US. In this respect, that decision has changed (part of) the rule of recognition.

We will recall Hart’s analogy between games and law when we analyse the judicial review of the unconstitutional constitutional amendment in three jurisdictions – Germany, India, and Turkey. It will make sense at that point to consider whether the game of constitutional democracy and its accompanying rule of recognition, which we have demonstrated at the beginning of this study as a scheme with six items, has changed or not.

Now that we have everything at our disposal concerning the theoretical framework, we can apply this to our three cases: Germany, India, and Turkey.

467 _{As we may recall, Gerald Postema had thought that the change of a convention might be construed in the}

same way. He thinks that as long as a present convention succeeds in solving the recurrent coordination problem, that convention survives or persists. But, if it fails to provide a solution to a novel coordination problem, which is within the range of the convention concerned, then eventual breakdown as well as a radical shift may be considered. Postema, “Coordination and Convention at the Foundation of Law”, p.179.

468 _{This line of argument can even explain the establishment of the US (federal) legal system. According to this,}

the US federal system was built on the acceptance of the illegal legal design of the US Constitution of today. The illegality here refers to Bruce Ackerman’s argument that “…the Founders [of the US Constitution] were designing a higher lawmaking procedure [Article VII of the US Constitution] that was plainly illegal under the Articles of Confederation [Article XIII]”. Bruce A Ackerman, “The Storrs Lectures: Discovering the Constitution” The Yale Law Journal 93, no. 6 (1984), p. 1058. Apparently, even if this argument is accepted, it would mean that the mere acceptance of this illegality renders the current US federal system legal. For the same view see Albert, “Nonconstitutional Amendments”, p.8. For a similar argument, see Kay, “Constituent Authority”, p.728.

469 _{In this line of argument see Greenawalt, “The Rule of Recognition and the U.S. Constitution”, p.31.} 470

CHAPTER 3

COMPARATIVE CASE LAW CONCERNING JUDICIAL REVIEW OF CONSTITUTIONAL AMENDMENTS ON SUBSTANTIVE GROUNDS IN