The U.S. Rule of Recognition: A Hartian Objection to Presidential Self-Pardoning

The problem of presidential self-pardoning has made its way into public discourse, especially after Trump’s presidency. Can a President pardon him or herself? This article argues that a President cannot self-pardon. It is hard to see by solely reading the constitution why this is the case, however. To remedy this problem, I invoke H.L.A Hart’s legal philosophy, specifically his concept of the Rule of Recognition. I argue the Rule of Recognition includes the idea that no one is above the law, including the president. To provide evidence for why this is the case, this article turns to a structural reading of the constitution, in which the whole can only be understood through its constituent parts.

1. Introduction

This article takes the perspective that Presidential self-pardoning ultimately concerns the range of application of the law: namely, does the law apply to those who make it? Intuitively, it seems like the answer is yes, the President is not above the law. Beyond the simple fact that the framers of the constitution did not want another King to rule them, the constitution allows for impeachment and prosecution of officials. I claim that it would be contradictory for a president to self-pardon because that would imply that they are above the law.

It is not so easy to see which laws apply to the President in the case of pardoning. Restrictions on self-dealing provide a clue. I argue, along with Kalt, for a structural reading of the constitution, which might indicate that prohibitions against overt self-benefiting actions are analogous to self-pardons (Kalt 1996). A structural reading, according to Bobbit, utilizes “inferences from the existence of constitutional structures and the relationships that the Constitution ordains among the structures of government” (Bobbit 1980, 721). A structural reading, then, holistically examines the constitution. Instead of focusing on only one of its parts, it reads the parts through the whole. However, as Perry states, it is very difficult to prove beyond a doubt that self-pardons are disallowed under the constitution (Perry 2019). To remedy this problem, I utilize an idea from Hart, namely that there are rules which grant authority. While these rules are often implicit, I claim they show that self-pardons are prohibited.

I draw principally from Hart’s distinction between primary and secondary rules. Primary rules are either laws that people are under an obligation to follow or laws that help facilitate wishes. Primary rules essentially say what citizens can and cannot do in different situations. Secondary rules are laws that provide for the creation, modification, identification, and adjudication of primary rules (Hart 1961).

These secondary rules are tied up with certain problems that confront a legal system with only primary rules. Importantly, it is not the case that these secondary rules are written down, though in determining what a secondary rule is, one might indeed reference written documents. Hart writes in the context of the ‘rule of recognition’, “For the most part the rule of recognition is not stated, but its existence is shown in the way in which particular rules are identified…” (Hart 1961, 98).

This article will first lay out Hart’s primary and secondary rules, the focus of which will be what Hart calls the ‘rule of recognition.’ Then, I will aim to show how a structural reading of the constitution might hint at the existence of a feature of the rule of recognition, namely an implicit—but explicable—norm that the President is not above the law. Finally, this article will conclude with the claim that presidential self-pardons are disallowed, as they are inconsistent with the Rule of Recognition of the United States.

2. Primary and Secondary Rules

In conceiving “law as the union of primary and secondary rules,” Hart is building upon and responding to previous legal positivist philosophers, most prominently Austin, who looked at social facts to identify what law is. By emphasizing social facts, legal positivists do not judge the content of law against some standard of morality, but rather look at the standards which those under a legal system follow. Despite this common ground with previous positivists, Hart takes his distinction of primary and secondary rules to solve many problems in analyzing features of law, where Austin and others might have gone wrong (Hart 1961).

In particular, Hart is responding to Austin’s claim that ‘coercive orders’ form the key to legal philosophy. This is the idea that “Every law or rule . . . is a command” (Hart 1961, 79, Austin 1832, 5). A command, in Austin’s usage, means a wish under threat of sanction that one should do or forbear from some act (Austin 1832). A law, which is a type of command that applies generally to a class of certain acts, is given from a political superior to a political inferior (Austin 1832). In many ways, this conception of law corresponds to what Hart dubs primary rules, which may “impose duties” on a citizen that place them under an obligation (Hart 1961).^[1] However, Hart’s conception of primary rules is more expansive, including non-coercive rules that do not impose duties. For example, the laws surrounding the creation of marriages and wills, which instead “provide individuals with facilities for realizing their wishes, by conferring procedures and subject to certain conditions…within the coercive framework of the law” (Hart 1962, 27). These facilitative rules are still rules for Hart, because they provide standards that guide conduct in a certain manner.

For Hart, rules are not merely the “convergence in behavior between members of a social group,” but rather must guide conduct (Hart 1961, 9). Consequently, if a rule is deviated from, not only is there a prediction as to a “hostile” reaction, but also given is a “reason or justification” for such a reaction (Hart 1961, 82).  If the rule indeed places one under an obligation, then it must include three main features: 1) The existence of social pressure to follow the rules. 2) The rules are perceived to be important or necessary for the “maintenance of social life or some highly prized feature of it.” 3) The conduct required by the rules may benefit some and conflict with the wishes of others (Hart 1961, 84-5).

An important difference between Hart’s conception of primary rules with Austin’s conception of laws as commands is that Hart emphasizes the ‘internal point of view.’ The internal point of view, or the view as if one was a citizen within a specific legal system, shows “the manner in which members of the group who accept the rules view their own regular behaviour” (Hart 1961, 87). For example, the internal point of view can show the motivations behind stopping at a red light, as opposed to running through it. Hart believes that an observer, without an account of the internal point of view, cannot provide a “description of their life…in terms of rules at all, and so not in the terms of the rule-dependent notions of obligation or duty” (Hart 1961, 87).

This is because a purely external point of view, in which the observer merely notes regularities of conduct, cannot say why it is that this conduct is regular. To return to the traffic example, the external observer can say that when there is a red light, “there is a high probability that the traffic will stop” (Hart 1961, 87). Thus, the red light becomes a sign which correlates to certain behavior. From the internal point of view, however, the light is not “merely a sign that others will stop” but it is a “signal for” stopping (Hart 1961, 87). Hart takes the internal point of view to show why certain regularities in social behavior are rules, using the metaphor that social behavior functions like a game: when playing a game, one accepts the rules as guiding, and when something is in dispute, one might say ‘It is a rule of the game that…’(see Hart 1961, 99). If a situation falls under a certain rule, then there is a reason from the perspective of those in that situation to match their social behavior accordingly.

If there is a rule that does not impose an obligation, for example, the creation or modification of wills, it is still the case that one might be in a situation in which a rule guides conduct for a wish to be rendered valid. In this situation, the analogy of rules still applies, because, from the internal point of view, there is reason to behave in certain ways that facilitate a wish.^[2] This perspective sharply contrasts with Austin’s view, who did not look from the internal point of view, but rather the external one. This means Austin’s account was unable to show why behaviors were rules in the first place, which give reasons and justifications for certain actions and reactions, as opposed to merely “observable regularities of conduct, predictions, probabilities, and signs” (Hart 1961, 87).

Hart does not take all rules to be legal rules: for example, dinner table etiquette might have certain rules attached to it. But it is not a law to eat in a certain way. A rule can only be determined to be a law, even if it is a widely followed rule, in reference to a secondary rule. There are three defects from which a society would suffer if they only had primary rules. The first, and the one which has the most bearing on this article, is called uncertainty and arises when there are doubts about the existence or scope of a rule (Hart, 1961).^[3] In this case, there would not exist a way of determining whether a rule does or does not apply to a certain case. Whatever procedure is used to settle the doubt would utilize other rules than the primary rules that society has at their disposal.

This problem of uncertainty is solved by the “rule of recognition” which specifies some “feature or features possession of which by a suggested rule is taken as a conclusive affirmative indication that it is a rule of the group to be supported by the social pressure it exerts” (Hart 1961, 92). In other words, does the primary rule in question have a feature/features that cause it to be recognized as a law of the society? If yes, then the primary rule is a law. If not, then it is not a law. In relation to a question about a primary rule, the rule of recognition would take into account “some general characteristic possessed by the primary rules,” including “their having been enacted by a specific body, or their long customary practice, or their relation to judicial decisions” (Hart 1961, 92). If any of these features conflict with each other, the features will be ranked in order of superiority to settle the conflict.

The presidential self-pardon question must be settled by the rule of recognition, as it is a question of whether the possibility of a certain action falls under a law. That is, the procedure to remedy uncertainty must be undertaken.

3. The Rule of Recognition and Moral Norms

The above discussion leads naturally to the question of the status of the rule of recognition in the United States. In seeking out the rule, it will be possible to determine whether the president is precluded or allowed from self-pardoning. While Hart points out that the complexity of some legal systems makes it difficult to infer a rule of recognition from one document, drawing from the constitution will provide a solid starting point.^[4] Ultimately, the rule of recognition will be presented as detailed by Carey, described according to the complex interactive process between the constitution, government officials, and moral norms (Carey 2009). However, to present the rule in full, it will be necessary to first elaborate on what a rule of recognition in the United States would have to contain.

The Rule of Recognition in any given legal system must contain the three following features—as a matter of legal fact—to be the correct rule of recognition. 1) The rule is not subject to any other test for validity. It has the final say on whether a norm is law or not law. 2) The citizenry obeys the norms indicated by the rule. If the citizens of a state did not show behavior in line with the norms outlined by the rule of recognition, as a matter of empirical fact, the rule could not be the rule of recognition. 3) Government officials regard the rule as setting the standard of behavior, and actively seek to adhere to it. This is perhaps one of the more important features and has the utmost bearing on actually determining the rule in a given legal system. Here the relevance of the internal point of view comes in again: if the officials were to not recognize the rule of recognition as binding and actively seek to carry it out, the rule, as a matter of empirical fact, could not be the rule of recognition (Carey 2009).

Any account of the rule in the United States would need to fulfill all three of these criteria. But it seems necessary to mention a critique of Hart’s positivism to do so. For Hart, law takes its point of departure from social facts: there are standards that guide behavior that are viewed as binding from the perspective of those in that society. One might wonder, however, if moral norms are able to be incorporated in the rule of recognition. For example, there are cases where judges have seemingly run out of guidance on what to do from the law itself and must appeal to other standards, namely moral ones. For example, should a criminal be able to benefit monetarily from his crime?^[5] Would a moral standard such as this be part of the law? This is a question Dworkin poses to Hart, which amounts to a critique of positivism as based exclusively or predominantly on social facts (Dworkin 1967).

Responses to Dworkin’s contentions come in two main camps. For ‘inclusive’ positivists, principles that are not rules in Hart’s sense, but are nonetheless appealed to in the practice of law, can be accounted for by positivism without abandoning its main tenets. Inclusive positivists maintain that there is no necessity that morality and law are linked (Shapiro 2007). This position is known as the “separability thesis” (Shapiro 2007, 33). A further position that inclusive positivists take is known as the “social fact thesis,” which holds that despite an appeal to moral facts, as in the case of certain discretionary choices by judges, it remains the case that social practices ultimately underlie law (Shapiro 2007, 33). Shapiro writes, “The Social Fact Thesis would be satisfied, on this view, just in case such tests of legality themselves have social pedigrees” (Shapiro 2007, 33). The rule of recognition, as a test of legality, is grounded in social, not moral, practices. Thus, the inclusive positivist is able to include moral norms in the rule of recognition while preserving its fundamentally social character.

In the second camp are the “exclusive” positivists, who deny that the principles which judges apply when the law “runs out” are moral at all (Shapiro 2007). They claim that many times when a judge appeals to such a principle that might be considered moral, they are following a social history of interpreting the law in such a way (Shapiro 2007). Thus, their decision remains based on social facts. If the principles do not seem to have a history of social use, then these principles are not law (Shapiro 2007). In this case, the principles invoked are not seen as “legislation from the bench” because exclusive positivists hold that judges are under an obligation under the law to use a moral principle to decide the case (Shapiro 2007). This does not mean that the moral principle itself is a part of the law.

These initial responses from both camps still face further challenges, despite their effectiveness at countering some of Dworkin’s initial critiques. A further problem for positivism lies in the fact that disputes about the grounds of the law, such as the procedures and institutions in which laws are made, cannot be accounted for (Dworkin 1986). A law itself is subject to true or false judgements: was the law passed by Congress? If it was, then it is a law, if it was not, then it is not a law. But it might be the case that there are disagreements about the grounds of the law. The example Shapiro gives is a dispute about the authority of Congress to legislate at all (Shapiro 2007). If there is a dispute of this kind, otherwise known as a “theoretical disagreement,” the positivist position—either exclusive or inclusive—would have a problem. The problem arises because positivists suppose that there is consensus on the grounds of the law because these grounds are social conventions and are binding (Shapiro 2007). If Dworkin is right, one must concede that since the settling of theoretical disagreements involves invoking principles, such as moral norms, that are not in the law itself, that morality is necessarily linked to law. This would undermine the positivist position.

Shapiro thinks that this critique does not destroy positivism, because it is possible to have a form of positivism in which social facts still determine the grounds of law and which can deal with theoretical disagreements on these grounds (Shapiro 2007). Shapiro theorizes that this form of positivism could account for both when “a consensus exists about the factors that ultimately determine interpretive methodology” (Shapiro 2007, 48). The factors that determine the correct interpretive methodology include “if the current designers agree about the basic objectives of the system, the competence and character of participants, and the proper distribution of roles” (Shapiro 2007, 48). Since these factors are social facts, Shapiro hopes to continue to ground law in social facts, thus saving positivism.

While the Hart-Dworkin debate is extensive and cannot be presented in full here, it bears on the discussion of the Rule of Recognition in the United States. This is because when determining if the President can self-pardon, it might seem plausible to appeal to moral norms in deciding on its legality. I contend that Shapiro’s solution is a plausible one, but it still leaves open the decision between exclusive and inclusive positivism. For the rule of recognition to interpret moral norms as law, it seems like an inclusive positivist position is necessary. Alternatively, if through the rule of recognition one merely appeals to moral norms, exclusive positivism could work also. Since the rule of recognition, as presented in the next section, speaks of moral norms, the inclusive position will be favored.

While I cannot defend the inclusive position completely from the exclusive one, there are reasons to favor it. For one, exclusive positivists take for granted Dworkin’s characterization of positivism, which is at least contestable. One part of Dworkin’s critique that Hart explicitly rejects is the “Pedigree thesis,” which has to do with the necessary reference of the rule of recognition to social facts only (Shapiro 2007). However, Hart himself notes that “In some systems, as in the United States, the ultimate criteria of legal validity explicitly incorporate principles of justice or substantive moral values” (Hart 1961, 199). This indicates that Hart acknowledges moral norms being incorporated into the rule of recognition and does not see the inclusion of moral norms as contradictory for a philosophy based on social facts. The exclusive positivist’s acceptance of Dworkin’s “pedigree thesis,” despite Hart’s rejection of it is puzzling, and precludes moral norms from the start.

4. The U.S. Rule of Recognition

Three major attempts have been made to formulate the rule of recognition in the United States.^[6] Carey argues for a synthesis of all three as the most plausible formulation. Each view speaks to an important feature of the American legal system: the constitution, the Supreme Court (and other officials), the ability to amend the constitution, state laws, and importantly, moral norms. Due to the inclusion of moral norms, the formulation Carey presents adheres to the inclusive positivist position. This synthesis has the following features, excepting the features pertaining to state laws as they do not impact Presidential pardons (Carey 2009, 1192-4):^[7]

1. All duly enacted norms that do not conflict with the objectively best interpretation of the appropriate part(s) of the Federal Constitution, which interpretation has not lost its legal force and does not derive its present legal force from enactment by a proscribed constitutional procedure, are law,

a. the objectively best interpretation of the Federal Constitution shall be determined by:

i. existing Supreme Court precedent, unless such precedent is rejected through proscribed constitutional amendment procedures, or

ii. the interpretation of any and all appropriate United States officials, administrative bodies, or lower-court judges if Supreme Court precedent does not apply or existing Supreme Court precedent has lost legal force due to longstanding official practice.

2. The above norms are law unless:

a. such norms conflict with existing Supreme Court precedent that has not lost its legal force due to longstanding official acceptance, or

b. such norms conflict with duly enacted norms as described in (1).

The rule thus accounts for the power of the Supreme Court in making decisions on laws, the power of Congress to check the Court through amendments, and the activities of all officials in interpreting the law. In the section on the interpretation of the state constitution, Carey retains the language of “best moral interpretation” (Carey 2009, 1193-4). It is puzzling that he should not do so in the case of the Federal Constitution. Carey writes later that “Under this rule, a duly enacted norm will only be law if it does not conflict with the objectively best moral interpretation of the Constitution and if consistency with the moral norms contained in the Constitution is a necessary condition of a norm’s legal validity” (Carey 2009, 1194). It seems straightforward that Carey does want to speak of both moral norms and moral interpretation. I see this coming in most plausibly in the actions of the officials in interpretation of the law, who often appeal to moral norms that are not laws.

This inclusion means that moral norms can and do count as law. This means that a duly enacted norm cannot be law if it conflicts with the “best moral interpretation of the Constitution” (Carey 2009, 1194). The legal validity of Presidential self-pardons, then, where the law has seemingly “run out”—where we can’t determine a decisive answer either way—must look to moral norms (specifically those that speak to the best ways to interpret the constitution) to test whether they are/are not allowed.^[8] In other words, the question of Presidential self-pardons will be resolved through reference to a moral norm.

5. Presidential Self-Pardoning

Does the Rule of Recognition elaborated above give us a definitive answer for claiming that a presidential self-pardon is an impossibility? This section lays out why it does, considering an objection at the end. While the constitution alone may not be definitive either way, the rule of recognition in totality gives the requisite resources to disallow self-pardons. Further, it is claimed that through a structural reading of the constitution, it is possible to gain hints of the additional moral norms present in the rule of recognition.

First, what does a structural reading look like? For one, it means that one does not only analyze the pardon clause itself. One must find the limits of the power “in the constitution itself” (Kalt 1996, 790). But what exactly does it mean for something to be “in the constitution”? Kalt argues that for something to be considered a part of the constitution, “it does not need to be spelled out explicitly in the text. Concepts like the separation of powers, checks and balances, and…disfavor for self-dealing, are implicit in the Constitution” (Kalt 1996, Footnote 86). This holistic—structural—reading that includes implicit concepts like a (moral) reprobation of self-dealing seems very compatible with the rule of recognition laid out by Carey. Recall that the rule includes the “best moral interpretation” of the constitution, which includes implicit moral norms.

In the case of the constitution, it seems likely that a self-pardon is implicitly disallowed, because “In other parts of the Constitution… government officials are kept from acting as decisionmakers in matters that directly, materially, and uniquely affect them” (Kalt 1996, 796). A self-pardon is exactly this kind of decision making. Why allow impeachments if not to prohibit a politician from abusing their power? And why prohibit self-dealing in other instances but not prohibit self-pardons? It seems structurally more consistent if this was implicitly forbidden, because of the simple fact that no one is above the law. But as the rule of recognition states, this might not be enough. The constitution is only one of the ways through which legal norms are valid. One main question to ask is: do the officials that judge the law see it this way? And further, does the disavowal of self-pardons directly conflict with norms that are already in place through constitutional amendment or otherwise?

To answer the first question: as a matter of empirical fact, officials tend to uphold the idea that no one is above the law. If one is impeached and removed from office, the decision is accepted. In the history of the United States impeachment proceedings, 8 officials have been found guilty on impeachment charges, 7 of which were subsequently removed and 1 who was prevented from holding public office again (U.S. Senate, accessed 2024, Price 2024). All of these officials were removed from office, and none advocated that they should stay in office—except for those with positive biases towards the aforementioned officials. As for the Supreme Court, it is well known that they are committed to enforcing equal treatment under the law.^[9] In addition, justices view themselves also as falling under the rule of law, which includes “constraining” themselves to preclude biases in discretionary rulings and setting forth clear and general—non arbitrary—principles (Scalia 1989). In other words, justices make sure that the principles used to arbitrate unclear cases are rigorous and as unbiased as possible.

To answer the second question: it does not seem that there are direct conflicts with other valid norms if Presidents were disallowed from self-pardons. Even protections like so-called “presidential immunity” only count for civil charges, not criminal charges or charges against the United States (the latter of which are the only things that a presidential pardon applies to anyway) (Palma 2024).

6. Conclusion

This article has argued that presidential self-pardoning is not consistent with the rule of recognition in the United States, as the best moral interpretation of the constitution—which was in turn supported by a holistic or “structural” reading—would disallow such an act that would effectively put one “above the law.” This argument drew from the (inclusive) positivist tradition of looking at the social facts of the legal system to explain its structures, without neglecting moral norms.

In the context of the Hart-Dworkin debate, the choice between exclusive and inclusive positivism threatened difficulty. If the exclusive position were favored, the thesis that moral norms, including ones that might disallow Presidential self-pardoning, would crumble. It was through a return to Hart that the exclusive position was claimed to have a weakness, namely that it excepted uncritically Dworkin’s presentation of the “pedigree thesis.” In a different interpretation, the positivist would not need to accept this thesis, thus leaving open the possibility of moral norms being incorporated into law.

With a contentious 2024 election behind us, it seems important to get straight that Trump—or any other potential president in the future—cannot appropriate the pardon power towards freeing themselves from charges against the United States.

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