The Rule of Recognition and the Emergence of a Legal System
Revus - Journal for Constitutional Theory and Philosophy of Law (2015) 27: 115–130
16 Pages Posted: 21 Aug 2017
There are 2 versions of this paper
The Rule of Recognition and the Emergence of a Legal System
The Rule of Recognition and the Emergence of a Legal System
Date Written: 2015
Abstract
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 (primary) 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, artifact theory of law, institutional artifacts, legal system
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