Who needs rules of recognition?

Abstract

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.

Links

PhilArchive



    Upload a copy of this work     Papers currently archived: 76,400

External links

Setup an account with your affiliations in order to access resources via your University's proxy server

Through your library

  • Only published works are available at libraries.

Analytics

Added to PP
2009-03-15

Downloads
119 (#106,782)

6 months
1 (#452,962)

Historical graph of downloads
How can I increase my downloads?

Author's Profile

Citations of this work

The Institutionality Of Legal Validity.Kenneth M. Ehrenberg - 2020 - Philosophy and Phenomenological Research 100 (2):277-301.
Sources, Recognition and the Unity of the Legal System.José de Sousa E. Brito - 2020 - International Journal for the Semiotics of Law - Revue Internationale de Sémiotique Juridique 33 (1):19-33.

Add more citations

References found in this work

No references found.

Add more references