The Rule of Recognition as a Political Discourse

Abstract

The best way to illustrate the relevance of the inquiry pursued in this paper is to begin by considering the possible meaning of the separation between law and morality. That separation is classically understood as implying the isolation or autonomy of law, the problem of its validity being therefore independent from moral or political considerations (in this context, morality includes political morality). Independence may mean, either that the validity of law is to be assessed regardless of the morality of its norms (i.e., of the “content of law”), thus depending only on the sources of law, or that the latter are themselves determined regardless of any moral or political evaluations. The first meaning corresponds to a definitional thesis of legal positivism in all its variants, “the sources thesis” (Raz 1979: 37 ff.); the second corresponds to an extreme version which understands legal sources as pure facts.

Keywords: rule of recognition, political discourse

JEL Classification: k19