Rule of Recognition: Legal Validity

Introduction

The rule of recognition, drawn from H. L. A. Hart’s theory of law, is the ultimate test officials use to decide which standards count as law in a given system. It is not written in a single statute. Instead, it exists as a settled social practice among judges, legislators and other officials who accept certain sources—such as Acts of Parliament, senior court decisions and validly made statutory instruments—as legally authoritative.

The rule concerns pedigree, not moral quality. A rule may be morally attractive or objectionable, yet still be law if it comes from a recognised source. In England and Wales, this practice has long included parliamentary sovereignty, the doctrine of precedent and, in limited circumstances, custom. The criteria can change over time when officials shift what they accept as valid sources (for example, EU law’s priority during the era of the European Communities Act 1972, and the different position after the EU (Withdrawal) Act 2018).

What You’ll Learn

• What the rule of recognition is and why it matters for legal validity
• How acceptance by legal officials gives the rule its force
• Which sources the English legal system treats as valid (statutes, precedent, delegated legislation, custom)
• How the rule relates to precedent and statutory interpretation
• How it has operated in England and Wales, including the EU law period and post-Brexit changes
• How professional regulation (e.g., the SQE and SRA Standards and Regulations) fits into the picture
• Practical steps for problem questions and SQE preparation

Core Concepts

What the rule of recognition means

• The rule of recognition provides criteria for telling valid law from non-law. It answers “How do we know this rule is legally valid?”
• Typical criteria point to:
  • A recognised source (e.g., Act of Parliament, binding decision of a senior court, properly made statutory instrument)
  • Proper pedigree (e.g., passed through the required parliamentary procedure; made under a valid power in an enabling Act)
  • Where relevant, a test of status (e.g., is the court high enough that its decision binds others?)
• It does not test moral worth. Validity flows from the source and its acceptance by officials, not from ethical merit.

Acceptance by officials (the “internal point of view”)

• For Hart, officials do more than simply predict or observe behaviour. They treat the criteria as standards that ought to be applied when deciding disputes, drafting legislation and advising the state.
• This acceptance:
  • Distinguishes legal rules from ordinary social rules
  • Confers authority on certain sources
  • Explains why the public’s obedience alone does not make a rule legal
• The public may follow a rule, but the system counts it as law only if officials accept its source and status.

Which sources typically count in England and Wales

• Acts of Parliament (including those passed using the Parliament Acts 1911 and 1949 procedure)
• Delegated legislation (statutory instruments, rules and orders made under a valid statutory power)
• Judicial precedent (decisions of the Supreme Court and Court of Appeal binding lower courts)
• Common law principles recognised by the senior courts
• Prerogative powers as recognised and limited by the courts
• Custom, in rare cases, where strict tests are met (e.g., legality, certainty and long usage)

Constitutional conventions guide political behaviour, but are not usually treated as legal rules by the courts.

A social rule, not a statute

• The rule of recognition is not enacted by Parliament and does not sit on the statute book.
• It exists as a social rule—an accepted practice—among legal officials. Because it is the top-level test, it is not validated by a higher legal rule.
• It can shift over time as official acceptance changes (e.g., the period when EU law had priority because officials accepted the effect of the European Communities Act 1972).

How it connects with other rules (precedent and interpretation)

• Precedent: The rule of recognition includes which courts create binding authority and how far that authority reaches. It gives the doctrine of precedent its legal status.
• Statutory interpretation: Courts interpret Acts using established methods. The acceptance of those methods is part of the practice that allows legislation to function as law.
• Rules of change and adjudication: Hart also described rules that allow law to be changed and disputes to be decided. The rule of recognition works alongside these by identifying who can change the law and who can give binding judgments.

Key Examples or Case Studies

Jackson v Attorney General [2005] UKHL 56

• Context: Challenge to the validity of the Hunting Act 2004, passed using the Parliament Acts procedure.
• Point: The House of Lords accepted that the manner-and-form procedure under the Parliament Acts could produce valid Acts without the House of Lords’ consent.
• Use: Shows that validity depends on accepted criteria about how an Act may be made. The rule of recognition includes those criteria.

R v Secretary of State for Transport, ex p Factortame (No 2) [1991] 1 AC 603

• Context: EU law’s effect on UK legislation through the European Communities Act 1972.
• Point: The courts accepted that, while the 1972 Act remained in force, EU law could disapply inconsistent domestic law.
• Use: Demonstrates that officials can accept a statute that changes priority between sources. Post‑Brexit legislation altered these criteria.

Anisminic Ltd v Foreign Compensation Commission [1969] 2 AC 147

• Context: Ouster clause aimed at preventing judicial review.
• Point: The House of Lords read the clause narrowly, keeping review available for legal errors.
• Use: Illustrates that accepted interpretative practices form part of what courts treat as law, and that statutory wording does not automatically exclude review unless clearly effective under accepted methods.

Professional regulation: the SQE and SRA Standards

• Context: The Solicitors Regulation Authority (SRA) sets entry and conduct rules under powers in the Legal Services Act 2007.
• Point: The SQE and SRA Standards and Regulations are not Acts of Parliament, but are valid rules within their domain because they are made under statutory powers and accepted by officials and tribunals as binding on solicitors.
• Use: Shows how the rule of recognition reaches beyond primary legislation to validly made regulatory instruments.

Practical Applications

• When asked “Is this rule legally valid?” apply these steps:

  1. Identify the candidate rule (statute, case, statutory instrument, guidance, code).
  2. Trace its pedigree:
     • Statute: Was it enacted with Royal Assent, possibly via the Parliament Acts?
     • Delegated legislation: What enabling Act confers the power? Were procedures followed (e.g., consultation, laying before Parliament)?
     • Case law: Which court decided it? Does the hierarchy make it binding or persuasive?
     • Custom: Does it meet tests of legality, certainty and long usage?
  3. Check acceptance by officials:
     • Do courts and public bodies treat this source as binding?
     • Are there authority and procedure cases supporting its status?
  4. Resolve conflicts between sources:
     • Which source has priority under accepted criteria (e.g., valid statute over common law; pre‑Brexit EU law priority via the ECA 1972; post‑Brexit position under the EU (Withdrawal) Act 2018)?
  5. Separate validity from morality:
     • Assess legal status first. Ethical evaluation is a separate question unless the legal system itself builds morality into the rule (rare in Hart’s model).

• Using the concept in public law and procedure:

  • Ouster clauses: Ask whether, under accepted interpretative practices, the clause in fact bars review.
  • Ministerial codes and guidance: Identify whether they are legally binding or soft guidance. Check for a statutory power and any case law on enforceability.
  • Professional rules: For solicitors, point to the Legal Services Act 2007 and SRA rule‑making powers to explain why the SQE and Standards bind candidates and practitioners.

• For SQE study and exams:

  • Use “source, pedigree, acceptance” as a quick test of validity.
  • Cite key cases (Jackson, Factortame, Anisminic) to show how courts apply accepted criteria.
  • Mention post‑Brexit statutory changes when discussing priority between sources.
  • Be clear that conventions are political rules, not usually legal rules.

Summary Checklist

• Rule of recognition = officials’ accepted test for legal validity
• Validity depends on source and pedigree, not moral merit
• In England and Wales, accepted sources include Acts, precedent, delegated legislation and (rarely) custom
• Conventions guide politics; they are not usually enforceable as law
• The rule is a social practice, not a statute, and can change over time
• Precedent and interpretative methods operate because officials accept them
• Jackson: manner and form can produce valid Acts
• Factortame: priority followed from the ECA 1972 (changed post‑Brexit)
• Anisminic: narrow reading of ouster clauses keeps review alive
• SQE/SRA: valid professional rules made under statutory powers and accepted by officials

Quick Reference