Farewell to the Rule of Recognition?

Abstract

I will argue that the rule of recognition, as it has been conceived by Hart, is either a redundant, and hence mostly useless, concept, or a concept with limited explanatory potential – in either case, at best a concept whose scope is, in contemporary legal systems, much narrower than Hart envisaged. I will also argue that the rule of recognition, in one of its possible (and plausible) reformulations, can nevertheless play a significant, non-redundant role, but only if employed in a rather different way than the one proposed by Hart, as well as by much of post-Hartian positivist literature.

Keywords: rule of recognition, legal system, legal validity, applicability, H.L.A. Hart