The Rule of Recognition and the Emergence of a Legal System

Abstract

The relevance Hart attaches to the rule of recognition, as well as some of its characterisations in The Concept of Law, indicate that the rule of recognition is first and foremost a rule in virtue of which other rules are legal rules. It explains the existence of legally valid norms as such. As a matter of conceptual truth, the satisfaction of the rule of recognition constitutes a norm as law. It can thus be said that the rule of recognition plays an important ontological role and thus has the character of a constitutive rule. But what is the rule of recognition constitutive of? Does it constitute merely particular legal rules as members of a system or a particular legal system as a whole? From what Hart says about the rule of recognition, it can be inferred that it certainly serves at least the first function. It is no doubt the constitutive rule of particular legal rules as elements of a system. However, even though this is not what Hart claims (at least not explicitly), one might also be tempted to see it as a constitutive rule of a legal system as such. What I claim in the paper is 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 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.