The rule of recognition and the emergence of a legal system

Revus 27 (2015)

Luka Burazin
University of Zagreb
The paper claims that the rule of recognition, given the way it is presented by Hart, cannot be a constitutive rule of any legal system as a whole, but rather a constitutive rule of legal rules as elements of a legal system. Since I take the legal system to be an institutional artifact kind, I claim that, in order to account for a legal system as a whole, at least two further constitutive rules, in addition to the rule of recognition as a token-element constitutive rule, are needed – one constitutive of legal officials and the other constitutive of a legal system as a token. However, given the central role the legal officials' practice occupies in establishing a particular instantiation or token of a legal system, I also claim that the rule of recognition cannot be understood as 'merely' a token-element constitutive rule but also as a legal system's implementation or concretisation rule
Keywords rule of recognition   constitutive rules   legal system   artifact theory of law   institutional artifacts   konstitutivna pravila   pravni sistem   pravilo o priznanju veljavnosti   artefaktna pravna teorija   institucionalni artefakti
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