The Sources of Authority: How Power Is Legalised

Hart's rule of recognition: the rule, accepted and practised by the officials of a system, which settles what counts as law in that system. Hart's version is a fact about behaviour rather than a presupposition: it exists because judges, officials and lawyers actually use it.

Both make the same political point, and it is the point of this whole module. At the bottom of the most rule bound legal order there is not another rule but an acceptance. Legal rational authority does not escape the need for legitimacy; it postpones it to the top of the pyramid.

In India that acceptance is expressed in the Preamble, which says that the people of India adopt, enact and give the Constitution to themselves. It is a claim about the source of authority, made in the instrument itself.

Step 2: the Constitution confers power on organs

The executive power of the Union is vested in the President by article 53 and extends, under article 73, to the matters on which Parliament may legislate; the executive power of a State is vested in the Governor by article 154 and extends, under article 162, to matters on which the State legislature may legislate. Legislative power is conferred and distributed by articles 245 and 246, read with the three Lists.

Step 3: the organ makes law within its competence

A statute is valid if the legislature had competence and the statute does not contravene the Constitution. Article 13 makes any law inconsistent with the Fundamental Rights void to the extent of the inconsistency.

Step 4: the statute confers power on an authority

Almost every statute names an officer or a body and states what it may do, on what grounds and by what procedure.

Step 5: delegated legislation fills in the detail

Rules, regulations, notifications and orders are made under the enabling section, and they are valid only so far as the section permits.

Step 6: the individual order

The permit, the licence, the notice, the assessment, the decree. This is where a citizen meets authority, and it is valid only if every step above it was valid.

And the loop back to the top

Article 368 provides how the Constitution itself may be amended, so even the top of the chain can be changed by a procedure the chain prescribes. And the Supreme Court has held that this power of amendment does not extend to damaging the Constitution's basic structure, which places a limit above the highest rule the text confers, on the reasoning that a power to amend cannot include a power to destroy.

What legalisation actually adds

An answer that lists the chain has described the mechanics. What earns marks is saying what the mechanics achieve.

A test of validity. Any order can be measured against the step above it, so a citizen can ask a court whether the power existed.

Limits. Each step confers something narrower than the step above.

Impersonality. The power belongs to the office, so it survives the holder and can be exercised by a successor.

Predictability. Because the rules are general and published, a person can know in advance what may be done to them.

Accountability. Because each step is traceable, somebody can always be identified as responsible.

Legitimacy. A power that can be traced to the Constitution can be defended in public as rightful, which is what converts power into authority.

A worked example: a regime legalising itself

A general seizes power in a state and suspends its constitution. He has power. He has no authority.

What he does next is the same everywhere, and it is a case study in legalising power.

He issues a proclamation that all existing laws continue in force, so that daily life goes on and the courts keep sitting. He obtains, from those courts, some acknowledgment that his orders are being given effect. He appoints a commission to draft a new constitution. He holds a referendum or an election, and the result is announced as the will of the people. The new constitution then declares that everything done since the seizure was lawfully done, which is a validation clause, and every subsequent order is traceable to that constitution.

What has happened. Nothing changed the fact that the origin was force. What changed is that the origin has been covered by a chain of rules that people accept, so the general's successors will command as officers rather than as conquerors. That is precisely what "legalising power" means, and it is why the question MU asks is a real one and not a formality.

And the limit of the technique. Legalisation is not the same as legitimation. A validation clause makes acts lawful; it does not make them accepted. Which is why the next two chapters, on legitimacy, are the necessary completion of this one.

Distinctions that carry marks

What this topic is NOT

Legalising power is not the same as making it just. The chain tests validity, not content.

The chain is not a formality. It is what a writ petition is made of. Every ground of judicial review is an allegation that one step in the chain is missing.

The Grundnorm is not a rule of Indian law. It is a jurisprudential device for explaining why the chain has an end. Hart's rule of recognition is a different device for the same problem.

Authority does not require legalisation. Traditional and charismatic authority are unlegalised and perfectly real. Legalisation is what the legal rational type does.

Quick revision

1. Sources of authority: constitution and law, tradition and custom, consent through election, personal qualities, expertise, office, religion, and force, which is a source of power that must be legalised before it becomes authority.
2. The chain in India: acceptance expressed in the Preamble; the Constitution confers power on organs (articles 53, 73, 154, 162, 245, 246); law is valid if competent and not void under article 13; the statute confers power on an authority; delegated legislation fills in detail; the individual order is issued. Article 368 governs change, and the basic structure limits even that.
3. At the bottom of every legal order is an acceptance, not a rule. Kelsen's Grundnorm and Hart's rule of recognition are the two classical accounts.
4. What legalisation adds: a test of validity, limits, impersonality, predictability, accountability and a public justification.
5. Legalisation is not legitimation. A validation clause makes acts lawful; only acceptance makes them authoritative.

Test yourself

1. What are the sources of authority? Constitution and law, which dominate in a modern state; tradition and custom; consent expressed through election, which is the democratic source; personal qualities, which is Weber's charisma; expertise, which modern administration relies on; office, which is derivative but is what a citizen actually encounters; and religion. Force must be added honestly: it produces power that is obeyed, and it becomes authority only when it is legalised.

2. Trace how power is legalised in India. The Preamble locates the source in the people, who adopt and give themselves the Constitution. The Constitution then confers executive power by articles 53 and 154 and legislative power by articles 245 and 246 with the Lists. A statute made within that competence and not void under article 13 confers a specific power on a named authority. Delegated legislation made under the enabling section supplies the detail. The individual order follows, and it is valid only if every step above it is valid. Article 368 governs amendment, and the basic structure doctrine limits even that.

3. What is the Grundnorm, and how does Hart's account differ? Kelsen's Grundnorm is the presupposed basic norm that confers validity on the first constitution, presupposed rather than enacted because the chain of validity must otherwise have no beginning. Hart's rule of recognition is not a presupposition but a social fact: the rule actually accepted and practised by the officials of a system, which settles what counts as law there. Both make the same political point, that at the foundation of a legal order lies an acceptance rather than a further rule.

4. Distinguish legalisation from legitimation. Legalisation makes an exercise of power traceable to a valid rule, and it is tested by asking whether a rule conferred it and proved by a document or a court's ruling. Legitimation makes power accepted as rightful, and it is tested by asking whether those subject to it believe the holder is entitled, and proved by compliance given without compulsion. Each can exist without the other: a validly enacted law nobody accepts, and a leader obeyed who holds no office at all.

5. Describe how a regime born of force legalises itself, and say what that process cannot achieve. It proclaims that existing laws continue, so that ordinary life and the courts carry on; it obtains judicial acknowledgment that its orders are being given effect; it appoints a body to draft a new constitution; it holds a referendum or election announced as the will of the people; and the new instrument validates everything done since the seizure, so that every later order is traceable to it. What this cannot achieve is acceptance. A validation clause makes acts lawful; it does not make the regime believed in, and that gap is what the topic on legitimacy addresses.