The Official Story of the Law

Oxford Journal of Legal Studies (forthcoming)

24 Pages Posted: 9 Nov 2022

See all articles by William Baude

William Baude

University of Chicago - Law School

Stephen E. Sachs

Harvard Law School

Date Written: October 29, 2022

Abstract

A legal system’s ‘official story’ is its shared account of the law’s structure and sources, which members of its legal community publicly advance and defend. In some societies, however, officials pay lip service to this shared account, while privately adhering to their own unofficial story instead. If the officials enforce some novel legal code while claiming fidelity to older doctrines, then which set of rules—if either—is the law? We defend the legal relevance of the official story, on largely Hartian grounds. Hart saw legal rules as determined by social rules accepted by a particular community. We argue that this acceptance requires no genuine normative commitment; agreement or compliance with the rules might even be feigned. And this community need not be limited to an official class, but includes all who jointly accept the rules. Having rejected these artificial limits, one can take the official story at its word.

Keywords: positivism, Hart, officials, acceptance, rule of recognition, recognitional community

JEL Classification: K10, K40

Suggested Citation

Baude, William and Sachs, Stephen E., The Official Story of the Law (October 29, 2022). Oxford Journal of Legal Studies (forthcoming), Available at SSRN: https://ssrn.com/abstract=4262066

William Baude

University of Chicago - Law School ( email )

1111 E. 60th St.
Chicago, IL 60637
United States

Stephen E. Sachs (Contact Author)

Harvard Law School ( email )

1563 Massachusetts Avenue
Cambridge, MA 02138
United States
617-495-5009 (Phone)

HOME PAGE: http://https://hls.harvard.edu/faculty/directory/11417/Sachs

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