Who Needs Rules of Recognition?

THE RULE OF RECOGNITION AND THE U.S. CONSTITUTION, Matthew Adler and Kenneth Himma, eds., Oxford University Press, Forthcoming

NYU School of Law, Public Law Research Paper No. 09-21

28 Pages Posted: 13 Mar 2009 Last revised: 8 Apr 2009

Jeremy Waldron

New York University School of Law

Date Written: March 12, 2009

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.

Keywords: certainty, closure, common law, constitution, grundnorm, H.L.A. Hart, Hans Kelsen, Jeremy Bentham, jurisprudence, legal positivism, rule of change, rule of recognition

Suggested Citation

Waldron, Jeremy, Who Needs Rules of Recognition? (March 12, 2009). THE RULE OF RECOGNITION AND THE U.S. CONSTITUTION, Matthew Adler and Kenneth Himma, eds., Oxford University Press, Forthcoming; NYU School of Law, Public Law Research Paper No. 09-21. Available at SSRN: https://ssrn.com/abstract=1358477 or http://dx.doi.org/10.2139/ssrn.1358477

Jeremy Waldron (Contact Author)

New York University School of Law ( email )

40 Washington Square South
New York, NY 10012-1099
United States

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