In the Manitoba case, the unilingual enactments of its legislature vary from section 23 of the Manitoba act because the needed form and manner of their enactment as per the constitution has not been adhered to. Consequently, they are of no effect or force and thus invalid. Since 1890 this legislature passed approximately all its laws only in English. Proving this law invalid has several implications. First, only laws enacted in both English and French, the national languages of Canada, would still be in force. Second, lawfully unregulated issues before 1890 laws would now be unregulated except if a standard or confederation rule offered rule (Adler, 2016). The most significant task that the court has is to identify the unconstitutionality of the unilingual laws of Manitoba and the duty to conform to the supreme law of Canada while evading a legal vacuum and ensuring the continued rule of law.
Several interveners and parties have proposed that the court declare Manitoba’s unilingual acts to be of no effect and remain at that, depending on the legislature to amend the constitution. This tactic would be inappropriate because it relies on an uncertain future event. Such a declaration would remove legal orders from Manitoba and transgress the rule of law (Schmidt et al., 2016). If the court permits such a situation to succeed and not resolve it, it would be abducting its responsibilities as a preserver and protector of the constitution. The best suitable solution for preserving obligations, rights, and other influences which are perceived invalid and which are by doctrines such as de facto is a declaration that for the court to uphold this rule of law, rights and obligations must keep on having the same effect and force under valid laws. This essay will give the facts surrounding this case, the notion of the rule of recognition, and how Hart’s notion might be applied to solve it.
Hart’s most significant distribution to legal theories is introducing the idea of the rule of recognition. This is the eventual criteria of legal validities in specific legal systems- which significantly changes the enduring clash between natural law theorists and legal positivists on law’s nature. The rule of recognition is a compound idea applied in identifying the rest of the rules that are valid as law in the legal systems. In Hart’s view, this rule comes from a convention among heads where they accept its criteria as standard imposing duties and conferring powers on those leaders, and resolving disagreements and doubts within the society. For instance, the rule holds in the United Kingdom that whatever the queen enacts in the parliament is passed as a law. Hart states the rule of recognition is the basis and acceptance of by which a legal system by both authority and private individuals recognize the obligatory primary rules.
Given the way the rule of recognition is presented, it cannot constitute rules of a legal system fully; instead, a rule that constitutes other elements of the legal arrangement (Schmidt et al., 2019). For one to wholly account for a legal system, two more constitutive rules in addition to Hart’s notion are required- one constitutive of the legal system and the other for legal officials. Bluntly put, the rule of law gives the criteria to determine the legal validity of a case and thus chooses the set of legal rules for specific legal systems because those particular laws are just the set of rules that address of are obligated to apply.
The rule of recognition can be used to determine if the claimed unconstitutional unilingual Manitoba laws entailing obligations, legal rights, and other legal rights are up to a legal validity challenge. In this case, declaring the edicts of Manitoba’s legislature invalid and of no effect will undermine the rule of law (Magnet, 2018). This is because the rule of law must amplify two things. The first thing is that the law is supreme over government officials and private persons. Therefore, it implies preclusive influence from arbitrary powers. To apply this rule of recognition, legal experts must first identify Hart’s nature of law’s weaknesses and strengths and offer a better understanding of how the idea works to the legal theorists. However, lawyers such as Ronald Dworkin have widely criticized this idea. He asserted that the challenges when attempting to apply this model in countries prove fatal flaws in the system. According to Dworkin, Hart’s positivism does not account for some significant legal system components, like America’s system fails to account for law systems overall.
It is not simply that Manitoba intentionally failed to adhere to the constitution’s act to use both English and French in the rule of recognition in Canada. The laws had been deemed temporary valid for a specific period and continuity of the rule of law. Manitoba must have preferred English as the official language while printing, enacting, and publishing all the legislature acts. Therefore, Manitoba can be understood for developing its territorial rule of recognition such that it innocently passed valid laws before 1890 (Horton, 2016). However, there is a second view to this case. Manitoba might have been simply ignorant of the laws and went ahead to ignore the French language.
I agree with the supreme law that the legislation should be declared invalid. However, for the past 100 years, I do not think that Manitoba failed to observe the constitutional laws regarding language requirements. French is just as important as English in Canadian languages.
In conclusion, the rule of recognition should not be a necessary condition to accept the validity of a legal system, or rather; officials should not deny a law because of prudential and moral reasons or tradition (Magnet, 2018). The character and facts regarding this rule of existence should differentiate it from similar notions like Hans Kelen’s.
References
Adler, Matthew D. “Popular Constitutionalism and the rule of recognition: whose practices ground US law.” Nw. UL Rev. 100 (2016): 719.
Schmidt, C., Young, J., & Mandzuk, D. (2019). The integration of immigrant teachers in Manitoba, Canada: Critical issues and perspectives. Journal of International Migration and Integration/Revue de l’integration et de la migration internationale, 11(4), 439-452.
Horton, S. B. (2016). The Manitoba Language Rights Reference and the Doctrine of Mandatory and Directory Provisions. Dalhousie LJ, 10, 195.
Magnet, J. E. (2018). Language rights theory in a Canadian perspective. Language and politics in the United States and Canada: Myths and realities, 185-205.
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