that this characterization is a purely factual statement, which is in principle amena-
ble to falsification. Hart did not claim that competently created rules deserve to
count as legal rules or to be obeyed. The only thing he claims is that modern legal
systems in fact identify legal rules by means of the criterion whether these rules
were created by somebody who had the legal competence to do so. Whether that is
good or bad is a different issue, an issue moreover that lies beyond the problem field
that Hart wants to cover. Hart is—inThe Concept of Law—concerned not with the
question what we should do or which rules ought to be obeyed but only with giving
an adequate characterization of law. His presupposition is that such an adequate
characterization can be given by having only eye for social practices and without
dealing with normative issues.
14.2.1.4 A Chain of Rules
The second comment is that valid legal rules are identified at the hand of powers
that were themselves conferred byvalid legal rules. In other words, the rules that
assign the powers required for making valid law must belong to the law themselves.
This means that these power conferring rules must have been made by persons or
bodies who were assigned the power to do so by power conferring rules that must
themselves be valid legal rules, meaning that these latter rules...etc.
Let us consider an example to see what this means in practice. Suppose that the
Dutch city of Maastricht has a parking regulation, especially for the market place.
This regulation is valid law, let us assume, because it has been created by the Mayor
and Aldermen of Maastricht. This body received the power to make parking
regulations for particular streets and squares from a local bylaw on parking. This
bylaw was created by the municipality council of Maastricht, which received the
power to make such bylaws from a statute created by the Dutch parliament and
government. Parliament and government received their power to do so from the
Dutch constitution (see also Fig.2.1).
The same chain of rules can also be followed top-down. Many statutory rules are
created on the basis of a power conferred by the constitution. These rules include
both a rule on the organization of municipalities and a rule about contract forma-
tion. The parking regulation of Maastricht ultimately derives from the rule about the
organization of municipalities. A contractual rule about the time at which some
good must be delivered derives from the rule on contract formation. The “tree” of
rules deriving from the constitution is very complicated, but, as we will see, Hart’s
view is that in the end all rules have the same foundation.
14.2.2 Social Practice as Foundation of Law
14.2.2.1 The Chain of Validity
So we have a chain of validity in which rules and powers alternate: a valid rule was
created on the basis of a power to create rules, and this power was assigned by a
valid rule that was created on the basis of a power...etc. This last “etc.” signals a
complication, however. The chain ends with the constitution. Arguably, this
316 J. Hage