David Bourget (Western Ontario)
David Chalmers (ANU, NYU)
Rafael De Clercq
Jack Alan Reynolds
Learn more about PhilPapers
I argue against the idea (made popular by H.L.A. Hart) that the key to a legal system is its "rule of recognition." I argue that much of the work allegedly done by a rule of recognition is either done by a different kind of secondary rule (what Hart called "a rule of change") or it is not done at all (and doesn't have to be done). A rule of change tells us the procedures that must be followed and the substantive conditions that must be satisfied if law is to be changed legislatively; and a judge "recognizes" changes simply by using this checklist. In common law, there is no clear rule of change (because we are profoundly ambivalent about judicial lawmaking). But we get by without one, and without a determinate rule of recognition that would tell us precisely how to infer rules from precedents. It is quite liberating, really, to abandon the idea of a rule of recognition. Apart from anything else, it relieves us from having to participate in endless debates about whether the US Constitution is (or contains) a rule of recognition for American law. The Constitution contains rules of change; that's what matters.
|Keywords||No keywords specified (fix it)|
|Categories||categorize this paper)|
Setup an account with your affiliations in order to access resources via your University's proxy server
Configure custom proxy (use this if your affiliation does not provide a proxy)
|Through your library||
References found in this work BETA
No references found.
Citations of this work BETA
No citations found.
Similar books and articles
William J. Clancey (1993). Notes on "Epistemology of a Rule-Based Expert System". Philosophical Explorations.
Colleen Murphy (2005). Lon Fuller and the Moral Value of the Rule of Law. Law and Philosophy 24 (3):239-262.
J. Hage (2000). Rule Consistency. Law and Philosophy 19 (3):369-390.
Michael Bishop & Benett Bootz (2007). Goodbye, Justification. Hello World. Croatian Journal of Philosophy 7 (2):269-285.
Adam M. Croom (2010). Wittgenstein, Kripke, and the Rule Following Paradox. Dialogue 52 (3):103-109.
Added to index2009-03-15
Total downloads94 ( #14,090 of 1,101,810 )
Recent downloads (6 months)2 ( #191,891 of 1,101,810 )
How can I increase my downloads?