Rule Of Recognition Research Articles

ON THE NATURE OF AND SOME CHALLENGES TO PARLIAMENTARY SOVEREIGNTY: A JURISPRUDENTIAL PERSPECTIVE

The article ultimately claims that the classical formulation of parliamentary sovereignty, properly understood, survives the most contemporary and relevant challenges it faces. The first part is reserved for the examination of the content and the source of the principle. The Diceyan conception of the principle is elaborated and defended against Wade’s version. Then, based on the Allan – Goldsworthy argument, the article determines that it is theoretically more appropriate to conceive of the principle as the rule of recognition. The second part focuses on the most contemporary and relevant challenges to the principle. These are the Parliament Acts 1911 and 1949, the European Communities Act 1972, and the Human Rights Act 1998. The challenge posed by the Parliament Acts fails because the Acts do not legally restrict the Parliament. Similarly, based on the distinction between normative hierarchy and the primacy of application, the European Communities Act needs to be conceived of as relating to the obligations of the law-applying officials and not the Parliament. Lastly, the four challenges raised by the Human Rights Act fail based on discussions surrounding the doctrine of implied repeal, the concept of normative collision, and the distinction between constitutional and ordinary statutes.

Guarantees and Limitations of the Sustainability Village Autonomy Through Rules of Recognition: Indonesia Experiences

This research examines whether the village authority inventory norms regulated in Law Number 6 of 2014 concerning Villages (Village Law). have guaranteed or limited the sustainability of village autonomy. The object of the research is an analysis of village authority inventory arrangements in several districts or cities in Indonesia: Badung Regency, Banyuwangi Regency, Sambas Regency, Sleman Regency, and Sungai Penuh City. The research method is normative research with a statutory and conceptual approach. The study concludes, first, that the village authority regulation model has two sides, on the one hand, it has been regulated in various and different ways both in terms of the type and amount of authority, but on the other hand, village authority is still regulated in a minimalist way. Second, there are still problems in the identification and inventory procedures for the list of village authorities, which have no relevance to the sustainability of village autonomy. The various village authority regulation models are relevant to guarantee the consistency of village autonomy.

Hart’s fundamental rule of recognition and normativity of constitutional change in India

ABSTRACT H.L.A. Hart in The Concept of Law describes the ‘fundamental rule of recognition’ which constitutes a legal system. The fundamental rule is held up by the practice of the top officials (executive, legislative, judicial and in some cases, even the armed forces) of a legal system. This practice forms the unwritten constitution, which may or may not map onto the written constitution. Simply put, there is constant jostling between the top officials to maintain an equilibrium with the result that the unwritten constitution can vary over time, while the text of the written constitution remains canonically unchanged. This insight of Hart (and John Gardner) into the real nature of constitutional law can illuminate the relationship between the Supreme Court of India and the other organs of the government. More importantly, it explains when and why the Court, the Executive and the Parliament act as they do.

The Role of H. L. A. Hart’s «Rule of Recognition» in Contemporary Anglo-American Legal Positivism

The article explores the role of the theory of «rules of recognition» by Oxford professor H.L.A. Hart in the contemporary theory of Anglo-American legal positivism, introduced by him in his central work «The Concept of Law» (1961), which has a significant influence on contemporary legal theory and philosophy. The authors reveal the content and meaning of the concept of «rules of recognition» as part of the secondary rules – «rules about rules» or «procedural rules» which determine the criteria for the validity of law along with the «rules of change» and the «rules of adjudication» in H.L.A. Hart’s terminology. The authors demonstrate the correlation with the «Grundnorm» of German legal philosophter H. Kelsen, which is more common in the Ukrainian legal theory, and which justifies the existence of constitutional norms as fundamental ones which determine the recognition of law by society and its individuals. The authors analyze the main positions of H.L.A. Hart’s followers – J. Raz, M. Kramer, B. Bix, S. Shapiro and others – regarding this theory and highlights the criticism of its individual provisions. The authors highlight how H.L.A. Hart tried to explain by the «rules of recognition» how law at the fundamental level is a matter of social convention (agreement between people inside the inhabited society), defending one of the components of legal positivism – the thesis of social fact (social sources of law thesis). The authors examine the interdependence between law and coercion by the State, the role of social practice in society’s subordination to law, the role of moral norms in the formation of law, in particular, the «rule of recognition», the correlation between the concepts of «rule of recognition» and «legal validity», and the problem of law enforcement by judges and governmental officials of the «rule of recognition». The authors summarize how H.L.A. Hart eliminates morality from the content of law in motivating judges and governmental officials to apply the rules of law, clarifies the position of legal positivism on the issue of the grounds for society’s submission to law, and demonstrates how the «empirical» theory of recognition prevails over the «analytical» theory, using R. Alexy terminology.

Kryzys gospodarczy i bezpieczeństwo państwa w warunkach pluralistycznej struktury europejskiego porządku prawnego

The concept of legal pluralism is associated with the phenomenon of multicentrism, polycentrism and international dialogue taking place between courts. Its popularity in the European context is justified by the need to conceptualize the changes occurring in Europe within the ongoing process of European integration. The law and the resulting rules of recognition, as well as the conflict rules that coexist and are jointly applied, which constitute the essence of the definition of legal pluralism, can be tools shaping the functioning of the regulatory environment for economic activity and the functioning of society in times of crisis. Within the European constitutional area, there are still a number of inconsistent rules of recognition. However, in the case of a real conflict between a national constitutional norm and a norm of EU law, Member States try to adapt their constitutions to the normative standard set by the European Union or applying a pro-EU interpretation, thereby recognizing the existence and binding nature of a multi-component, multicentric legal system.

Revisiting Colonial Encounters in Maitreyi Devi’s It Does Not Die: A Romance: A Postcolonial Perspective

The Indian novelist, Maitreyi Devi’s account of her love story with Romanian novelist, Mircea Eliade came out in 1974 as Na Hanyate in the Bengali language and its English version was titled It Does Not Die in 1976 by the author herself. Following Nirmala Menon’s critical insights on Bhabha’s (post)colonial hybridity discourse, this study aims to reinterpret the novel as an illustrative text of postcolonial “interrogative hybridity.” Devi employs hybridity in such a way that it unsettles a linear narrative with constant shifts in focus and style. It is upheld that her ingenious hybridity originates from her position as an off-center postcolonial female writer who critiques colonial stereotypes and mimicry by revisiting/challenging colonial discourse constructed against the colonized by the colonizers. Hence, the study explores how her novel is a postcolonial hybrid counter-narrative text to colonial fantasies. To conclude, postcolonial hybridity can only problematize colonial individuations and representations, if it reverses the seemingly sound effects of colonial discourse in such a way that “other ‘denied’ knowledges” enter upon the dominant discourse and estrange the basis of its authority—its rules of recognition.

Towards a new approach for understanding educational inequality: The Sen– Bourdieu-Bernstein theoretical framework

Understanding the mechanisms underpinning the transmission of educational inequalities is fundamental for fighting social injustice and promoting social mobility. Towards this aim, the paper proposes an extension of the synthetic theoretical framework of Sen-Bourdieu, incorporating the key sociological concepts of classification and framing and the corresponding rules of recognition and realization, as elucidated by Basil Bernstein. By elaborating on the complementarities of the adopted theoretical frameworks, the purpose of the paper is the development of a conceptual model capable of better unravelling the complex processes that influence educational choices and outcomes within contemporary educational systems. Τhe practical possibilities of the suggested theoretical model are demonstrated through its application to a topical issue of educational policy, namely the nexus between school choice and inequality. In this context, the role of educational policy is construed as facilitating individuals’ educational paths by eradicating restrictive factors and establishing emancipating ones..

UNDERSTANDING LEGITIMACY THROUGH LEGALITY OF LEGAL NORMS AND MORAL FOUNDATIONS OF POLITICAL POWER

The aim of this study was to clarify the concept of “legitimacy” used in theory of state and law, as the term often leads to confusion due to the plurality of its meanings in different contexts. Based on the analysis, it was concluded that the usage of legitimacy can be still be primarily categorized into two directions: legal legitimacy and moral legitimacy. Legal legitimacy represents the normative side of the concept and seeks to establish a hierarchy of legal orders, with the juspositivists like Kelsen and Hart advocating for grundnorm and rule of recognition and jusnaturalists like Aquinas and Sir Blackstone defending the supremacy of the natural law. Moral legitimacy discusses the sources contributing to the “right to rule” from the perspectives of consensus that derive from Aristotle’s advocacy for political stability and Rousseau’s social contract, and perspective of conflict that roots in Maciavelli’s distrust of human nature and Marx’s class struggle. By contrasting the theories of a variety of legal and political philosophers, this paper produced an overview of the evolution of legitimacy, which allows the readers to form a cohesive understanding of the concept and its usage.

Is the rule of recognition really a duty-imposing rule?

According to a persistent assumption in legal philosophy, the social rule at the foundation of a legal system (the Rule of Recognition) serves both an epistemic and a duty-imposing function. Thus, some authors have claimed that it would be a formidable problem for legal philosophy to explain how such social rules can impose duties, and some have taken it upon themselves to show how social practices might just do that. However, I argue that this orthodox assumption about the dual function of rule of recognition is ill-founded. Contrary to the orthodox view, we have no good reasons to ascribe more than an epistemic function to the rule of recognition. Accordingly, the norms deriving immediately from the rule of recognition are no different than those entailed by other epistemic, grammatical or syntactic norms. Consequently, accounts of the normativity of law need not explain how social practices like conventions or plans might impose duties on the officials of a legal system.

Issues of foundations and criteria of law: criticism of the theory of social rules and conventional rule of recognition in “early” R. Dworkin’s doctrine

The article investigates the doctrine of an American jurist, Ronald Dworkin, presented in the essay “Social Rules and Legal Theory” (1972) and considered as a stage in his large-scale polemics with legal positivism. In this doctrine the author criticizes the theory of “social rules” and the conventional “rule of recognition”, which is basic for his opponents. The theory requires an agreed unity of practice and defends the controversial character and moral engagement of normative grounds and criteria of law, their priority and autonomy against community practices. The relevance of the topic is due both to the fundamental nature of the Dworkin - positivists dispute, and peculiarities of the 1972 doctrine, which formed a number of its “cross-cutting” elements. The article is aimed at systematization and assessment of the 1972 doctrine, relies on the texts by its author, his opponents and researchers, and uses various tools, primarily the ideological and historical method, focused on explication of views and issues developing in the history of thought. The study results are generalization of original components of R. Dworkin’s 1972 doctrine, its localization within the dispute between the author and positivists and discerning its ideological and historical implications. Summing up the article emphasizes a stimulating role of the 1972 doctrine for evolution of the rival approaches, as well as its potential for the philosophy of law, associated with R. Dworkin’s problematization of a link between normativity and facticity in law, linguistic-analytical idea of a rule as a practice, and conventionalist account of foundations of law which decenters normative disagreements.

The concept and genesis of powers, the mechanism of their regulation and legitimacy when established at the legislative level

The article is devoted to the disclosure of the concept of the theory of powers. Legitimacy of powers and consideration in their regulatory regulation of needs and interests of man and citizen, society as a whole is shown. It was found that the structural construction of the theory of the state and law requires the presence of relevant autonomous parts in its system, such an autonomous part is the theory of powers, which is a collection of reliable knowledge about powers. Authority is considered as a social phenomenon that manifests itself in modern relations of civil society, the delegation of the right to exercise certain rights and duties. It was determined that the powers in their content are a set of interrelated and interdependent rights and obligations. It was established that the legal structure of powers includes the duties of state bodies, public organizations, officials and other persons assigned to them in accordance with the procedure established by law. Powers are established in legal norms at both the legislative and sub-legal legal levels. It has been found that the term "authority" is used in various fields of law and is therefore considered general legal. Authority is defined as an element of a broader legal phenomenon - the system of law and the state. It was established that the authority has systemic and functional connections with the state bodies, through them the voters delegate the right to manage the state and society's affairs, these elements of the system are an integral part of the competence of the executive power bodies. The regularity of the use of the term "authorization" in the norms of not one, but all branches of law can be traced. It was determined that the general rule of recognition of the legitimacy of the powers of a government body or an official is that they acquire powers on the basis of compliance with all the requirements of the law, and act in the manner defined therein. A general definition of the concept of authority is proposed, as a general concept for the theory of law and the state, the content of which is a system of rights and obligations acquired in a legitimate way by the state, local self-government, state bodies and local self-government bodies, their officials, other subjects of legal relations in order to ensure the opportunities, needs and interests of a person and a citizen, individual social groups and society as a whole.

The Standard Picture and Statutory Interpretation

AbstractThe Standard Picture holds that the contribution to the law made by an authoritative legal pronouncement is directly explained by the linguistic content of that pronouncement. This essay defends the Standard Picture from Mark Greenberg’s purported counterexamples drawn from patterns of statutory interpretation in U.S. criminal law. Once relevant features of the U.S. rule of recognition are admitted into the analysis—namely, that it arranges sources of law hierarchically, and that judicial decisions are sources of valid law—Greenberg’s counterexamples are revealed as only apparent, not genuine. The legal norms that result from the patterns of interpretation he identifies can be directly explained in terms of the linguistic contents of authoritative pronouncements: judicial decisions. Furthermore, those norms can be understood as modifications of the valid norms contained in their originating statutes because judicial decisions are permitted ‘explanatory intermediaries’ of statutes by the rule of recognition.

The Rule of Recognition as a Political Discourse

The Rule of Recognition as a Political Discourse

Managing the rules of recognition: how early career academics negotiate career scripts through identity work

ABSTRACT Due to the changing landscapes of higher education, a large body of research has studied how scholars make sense of academic identities and careers. Yet, little is known about how academics actually ‘work’ on their identities to navigate normative demands and complex career structures. This paper explores how scholars negotiate career scripts trough identity work. Drawing upon 35 interviews with early career academics in political science and history, the analysis discerns four patterns of identity talk through which academic identities are constructed: achievement talk (signalling achievement and competitiveness), authenticity talk (signalling genuineness and being true to self), loyalty talk (signalling loyalty and willingness of helping out), and personation talk (adjustment to privileged identities). Defining what to display and how to correctly embody its corresponding values, these patterns convey different ways in which scholars manage their identities according to the perceived rules of recognition. Identifying several contrasting understandings of what it means to act and to represent worth, the study shows that successful identity management requires a certain feel for the game of recognition. Involving the symbolic struggle of ‘fitting in’ and ‘standing out,’ strategies for identity work are shaped by scholars’ social class background and gender. In demonstrating how the prevalence of project-based work accentuates the importance of identity performances on academic markets, the findings suggest that the concept of identity labour may open up new avenues of investigation.

HARTIAN CONCEPTION OF INTERNATIONAL PUBLIC LAW

The article examines idiosyncratic Hartian conception of international public law, which, often maligned and ignored in the past, has come to recent attention due to originality and singularity of thoughts expressed. Through the positivistic lens in his seminal work, The Concept of Law, H.L.A. Hart manages to offer a unique analysis, even if not entirely free from blemishes, of international public law as its own system of distinguishable rules and an intriguing examination of both the vital distinction between public and private affairs as well as the system of sanctions applicable. The crucial underpinning in the analysis is Hart’s insistence on the rule of recognition as a primary basis of any developed legal system, a feature whose applicability to international public law could be dubious. In spite of this controversial opinion, Hart still closely dissects this field of law, giving valuable insights to be considered. With the ever-increasing importance and consideration given to the international public law, understanding imperfect and yet still unique Hartian perspective might be of great use to legal analysts, wishing to comprehensively grasp this field of jurisprudence.

Christianity and International Law: An Introduction. Edited by Pamela Slotte and John D. Haskell

This book offers an eclectic analysis of the past, present, and future of Christianity and international law. Recognizing the difficulty of choosing possible topics for an introduction to the relationship between these two subjects, the editors chose two broad categories. First, various chapters provide a historical overview of the nexus between Christianity and international law in contexts such as diplomacy, trade, charity, maritime law, colonialism, peacebuilding, and the development of international institutions. Second, the book includes themes that routinely resurface within contemporary international legal thought, including topics such as religious freedom, human rights, and refugees and asylum. The historical chapters are particularly rich with insight on the relationship between the Church and developments of international law. A few examples will suffice. Peter Petkoff presents a wonderful analysis of Byzantine ius gentium as “a rule of recognition that enabled the Byzantine Empire to maintain its status as the only legitimate God-made polity.” But ius gentium was also expansive enough to “integrate its neighbors through a variety of rules of recognition into its Christian commonwealth and make them in some sense Christian and Roman” (pp. 28–29).

The effect of crRNA–target mismatches on cOA-mediated interference by a type III-A CRISPR-Cas system

ABSTRACT CRISPR systems elicit interference when a foreign nucleic acid is detected by its ability to base-pair to crRNA. Understanding what degree of complementarity between a foreign nucleic acid and crRNA is required for interference is a central question in the study of CRISPR systems. A clear description of which target–crRNA mismatches abrogate interference in type III, Cas10-containing, CRISPR systems has proved elusive due to the complexity of the system which utilizes three distinct interference activities. We characterized the effect of target–crRNA mismatches on in vitro cyclic oligoadenylate (cOA) synthesis and in vivo in an interference assay that depends on cOA synthesis. We found that sequence context affected whether a mismatched target was recognized by crRNA both in vitro and in vivo. We also investigated how the position of a mismatch within the target–crRNA duplex affected recognition by crRNA. Our data provide support for the hypothesis that a Cas10-activating region exists in the crRNA–target duplex, that the Cas10-proximal region of the duplex is the most critical in regulating cOA synthesis. Understanding the rules governing target recognition by type III CRISPR systems is critical: as one of the most prevalent CRISPR systems in nature, it plays an important role in the survival of many genera of bacteria. Recently, type III systems were re-purposed as a sensitive and accurate molecular diagnostic tool. Understanding the rules of target recognition in this system will be critical as it is engineered for biotechnology purposes.

Size of the protein-protein energy funnel in crowded environment.

Association of proteins to a significant extent is determined by their geometric complementarity. Large-scale recognition factors, which directly relate to the funnel-like intermolecular energy landscape, provide important insights into the basic rules of protein recognition. Previously, we showed that simple energy functions and coarse-grained models reveal major characteristics of the energy landscape. As new computational approaches increasingly address structural modeling of a whole cell at the molecular level, it becomes important to account for the crowded environment inside the cell. The crowded environment drastically changes protein recognition properties, and thus significantly alters the underlying energy landscape. In this study, we addressed the effect of crowding on the protein binding funnel, focusing on the size of the funnel. As crowders occupy the funnel volume, they make it less accessible to the ligands. Thus, the funnel size, which can be defined by ligand occupancy, is generally reduced with the increase of the crowders concentration. This study quantifies this reduction for different concentration of crowders and correlates this dependence with the structural details of the interacting proteins. The results provide a better understanding of the rules of protein association in the crowded environment.

Rule of Recognition and Legal Official’s Duty -- A Reanalysis based-on the Hart-Fuller Debate

This paper is a reanalysis of the Hart-Fuller debate based on the Grudger Informer case, which discusses whether the German court should incorporate morality in determining the validity of laws. Hart proposes that the rule of recognition, customarily practiced by legal officials, is the test of legal validity. Law and morality are therefore not necessarily connected because legal officials have duty to obey the law, represented in the rule of recognition. Fuller claims that law and morality are connected given the fact that extremely unjust laws lose their validity. This paper argues instead that extremely unjust laws cannot be valid still fit in the rule of recognition as the test itself is limited due to political constraint. This is an implication of Hart’s theory that is not directly claimed by Hart.

Relational legal pluralism and Indigenous legal orders in Canada

AbstractThe survival and resurgence of Indigenous legal orders and constitutional traditions in Canada, as elsewhere, disrupt the normative hegemony of the liberal state and articulate a constitutionalism that accounts for a plurality of laws. How can state and non-state legal orders interact across vastly different normative worlds? How can their interaction address the colonial power imbalance and what role should recognition play in this relationship? This article draws on the work of Ralf Michaels on relational legal pluralism and Aaron Mills on Anishinaabe constitutionalism to explore how a legally plural society must embrace Michaels’ challenge of constitutive external recognition: the idea that legal orders mutually constitute each other through recognition without interfering with each other’s factual status as law. External recognition is consistent with strong legal pluralism and is distinct from recognition within the multicultural liberal state, a form of weak legal pluralism and continued colonialism. Mills’ discussion of treaty, rather than contract, as a foundation for shared political community assists in imagining a constitutionalism with/in Canada in which distinct legal orders can mutually constitute each other without domination. Linkage norms may help to establish reciprocal relations among state law and Indigenous legal orders, and the enactment of such ‘tertiary rules of recognition’ from within Indigenous legal orders may itself shift the balance of power.