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The Reality of the British Constitution: H.L.A. Hart and What 'Officials' Really Think

37 Pages Posted: 15 Jul 2014 Last revised: 6 Aug 2015

David R. Howarth

University of Cambridge - Department of Politics and International Studies (POLIS); University of Cambridge - Department of Land Economy; University of Cambridge - Faculty of Law

Shona Wilson Stark

Christ's College, Cambridge

Date Written: July 14, 2014

Abstract

In The Concept of Law, H.L.A. Hart argued that one of two 'minimum conditions necessary and sufficient for the existence of a legal system' was that 'its rules of recognition specifying the criteria of legal validity and its rules of change and adjudication must be effectively accepted as common public standards of official behaviour by its officials'. Those rules, his 'secondary rules', form a crucial part of Hart's theory that the way to understand law is as the union of primary and secondary rules. This paper sets out to test that claim as a matter of empirical fact. If one asks UK officials what they think the UK's rules of recognition, change and adjudication are, and whether they accept them as common public standards, what do they say?

Instead of interviewing judges, whose official views are readily accessible in their judgments, we concentrated on high non-judicial officials - senior civil servants, including former Cabinet Secretaries, military officers, including former Chiefs of the Defence Staff, chief constables and chief executives of local authorities. A series of recent examples of UK constitutional rules coming under stress were put to interviewees, in particular the request by Admiral Sir Michael Boyce at the cusp of the Second Iraq War for authoritative advice on the legality of the war. Interviewees discussed their understanding of how one identified legal rules, how legal rules changed and how they were settled if there was disagreement.

We found some consensus but also a great deal of divergence. We also found, at least in the Civil Service, a degree of willingness to defy the courts entirely incompatible with the existence of any straightforward Hartian 'internal point of view' towards the law, at least as the courts understand it.

But we also found evidence not so much for lawlessness within the UK government as for the existence of a separate legal system, centering on the figure of the Attorney-General. One way of interpreting our evidence is that there is not just one British constitution, but three, one built around the perspective of the courts, one around the perspective of the Government and around the perspective of Parliament.

Keywords: Great Britain Constitutional Law, Jurisprudence, HLA Hart, Sociology of Law, Sociology of the State, UK Civil Service, UK Military, UK Police, UK Local Government

Suggested Citation

Howarth, David R. and Stark, Shona Wilson, The Reality of the British Constitution: H.L.A. Hart and What 'Officials' Really Think (July 14, 2014). University of Cambridge Faculty of Law Research Paper No. 53/2014. Available at SSRN: https://ssrn.com/abstract=2466001 or http://dx.doi.org/10.2139/ssrn.2466001

David R. Howarth (Contact Author)

University of Cambridge - Department of Politics and International Studies (POLIS) ( email )

First Floor, 17 Mill Lane
Cambridge, CB2 1RX
Great Britain

University of Cambridge - Department of Land Economy ( email )

19 Silver Street
Cambridge, CB3 9EP
United Kingdom

University of Cambridge - Faculty of Law ( email )

10 West Road
Cambridge, CB3 9DZ
United Kingdom

Shona Wilson Stark

Christ's College, Cambridge ( email )

Christ's College
Cambridge, CB2 3BU
United Kingdom

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