Re-Visiting the Viability of the Rule of Recognition and the Basic Norm in Modern Legal Context
17 Pages Posted: 19 Jun 2011
Date Written: June 18, 2011
Both H.L.A. Hart and Hans Kelsen views the concept of a legal system from the perspective of legal positivism. The defect of ‘uncertainty’ that is the lack of authoritative procedures for deciding the rules as to the precise nature of the primary rules, would be remedied by a secondary rule which Hart terms ‘the rule of recognition’. The rule of recognition determines the criteria by which the validity of the rules of a legal system is decided from the internal aspect. It is, in part duty imposing. The rule of recognition presupposes the existence of judges whose duties are laid down by the rule of recognition. In Kelsen’s terms, law is based on norms which stipulate sanctions and the validity of a legal norm depends solely on its having been authorised by another legal norm of a higher rank, The final norm’s validity cannot be derived from a higher norm; the reason for its validity cannot be questioned.
Hart’s rule of recognition is more viable than Kelsen’s grundnorm. Because, modern culture looks at law and legal systems empirically - as fundamentally involving questions of social facts which is present in the rule of recognition whereas for Kelsen the law was fundamentally nonempirical.
However, one benefit of grundnorm is that it allows the underlying logical structure of legal systems to be revealed, just as the philosophers' approach to language reveals its logical structure.
Keywords: Legal positivism, Rule of Recognition, Grundnorm, Viability
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