Rule Of Recognition Research Articles

Dworkin on the Rule of Recognition

In the Model of Rules I, Ronald Dworkin criticizes legal positivism, especially as articulated in the work of H. L. A. Hart, and suggests an alternative approach to legal theory that is neither a purely positivist nor a purely natural law position. 1 In doing so, he rejects two fundamental tenets of positivism. The first is the idea that, in every developed legal system, there is a master rule, or of recognition, that is, a social rule or complex set of rules that provides a test for identifying which rules are law and which are not. This test has to do not with the content of rules, but with their pedigree, or the way in which they were adopted. The second tenet is the doctrine of judicial discretion. This is the thesis that, in deciding cases to which no law clearly applies, the judge has no duty to find in favor of one litigant rather than another, but may use his or her discretion to generate new laws or modify old ones.

Negative Positivism and the Hard Facts of Life

In his essay, Negative and Positive Positivism,1 Jules L. Coleman extends in two important ways the Legal Positivism of H. L. A. Hart. First, he shows that the thesis?the claim that no necessary or constitutive relationship exists between law and morality?to which Positivists are wedded does not entail the view, attributed by Ronald Dworkin to Legal Positivists, that law consists in facts. Instead, the separability thesis requires only the possibility of deciding the truth of prop ositions of law. This weaker requirement can be met by rules of recognition that are semantically adequate but that fail to set out tests by means of which the legal status of rules and norms may be verified (pp. 143-48). Se cond, Coleman argues that one can subscribe to the separability thesis and still maintain that judges may have a legal duty to couch decisions in moral terms whenever the content or proper formulation of [a] rule of recogni is in dispute (p. 157). Such a legal duty may exist in virtue of a con vergent practice judges of resolving the controversy in a particular way (p. 159). Coleman's claims are well-taken, and his discussions of the separabil ity thesis and its entailments and of law as social convention put Legal Positivism on firmer ground. In this essay I will expand on Coleman's analysis in two ways. First, I will argue that in practice we are unlikely to find developed legal systems in which rules of recognition systematically fail to serve the epistemic function Coleman describes. That is, I will show that most often law is a matter of hard facts, and, given the many uses to which laws are commonly put, the situation could not practicably be otherwise. Second, I will contend that Coleman's analysis of convergent practices among judges forces us to redefine Hart's rules, i.e., the rules that regulate the interpretation and manipulation of primary rules of obligation in a legal system.2 Once secondary rules are appropriately de fined, the legal duty judges may have to apply moral principles when inter preting rules of recognition is subsumed within the class of legal duties that delimit the ways in which officials of all kinds may properly exercise discre tion when working with secondary rules. In addition, the redefinition allows for the possibility thatin a conceivable legal system every discretionary act taken by an official must be justified on moral grounds.

Rules of Recognition in the Primary Courts of Zimbabwe: On Lawyers' Reasonings and Customary Law

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Why Do the Constitutional Studies of the "Parliamentary Sovereignty" Require Historical Research?

Sovereignty of generally means first that Parliament may do anything it wishes, and secondly that there is no person or body in United Kingdom with power to set its acts aside, namely that no Act of Parliament could be declared to be invalid by courts of law. This doctrine was systematized by A. V. Dicey in late nineteenth century, and has been upheld by orthodox English lawyers. But, on other hand, some new attempts have been made to question doctrine. According to them, if Parliament were truly sovereign, it would necessarily be above law, which would contradict Dicey's own theory on rule of law. question which has not been settled is relation between Acts of Parliament and common law.Sir Ivor Jennings insists that in Dicey's sense is a doctrine of law. Therefore, he holds view that Parliament's legal power depends on a legal rule which is established by courts. point is presented by Jennings in form of a paradox: since Parliament can change law as it likes, it can alter law about itself as well as law about anything else.On contrary Dicey school has considered that no Parliament could legislate to prevent repeal or amendment of its own enactments, or, to put it tersely, no Parliament could bind its successors. Under this view a fallacy in Jennings' attempt was to secure settlement within limits of unmixed legal principle.H. W. R. Wade, who supports Dicey's view, refers to J. W. Salmond to solve said paradox. What Salmond calls legal principle is a rule which is unique in being unchangeable by Parliament, whose operation is ultimate and whose source is not legal, but only historical. He says that doctrine of parliamentary sovereignty is in one sense a rule of common law, but in another sense, it is political fact upon which whole system of legislation hangs.E. C. S. Wade, who also supports Dicey's view, cites from J. Bryce: The historical facts which have vested power in any given sovereign lie outside questions with which law is concerned, and belong to historical or to political philosophy or to ethics.O. H. Phillips also says, The legislative supremacy of British Parliament, as well as being a legal concept, is also result of political history and is ultimately based on fact, that is, general recognition by people and courts. It is therefore at same time a legal and political principle. He refers to H. L. A. Hart, who calls it the ultimate rule of recognition, which may be regarded both as an external statement of fact and as an internal criterion of validity.Salmond's principle bears a close resemblance to Kelsen's Grundnorm. But R. T. E. Latham has succeeded in proving that Grundnorm, whether or not it coincides with written constitution, is prior and superior to legislature and is daily so treated by courts, so that he denies doctrine of parliamentary sovereignty. On other hand, according to some new views, Dicey failed in proving that law made legislature a sovereign law-making body, nor has any of his followers succeeded in doing so.

Negative and Positive Positivism

Previous articleNext article No AccessNegative and Positive PositivismJules L. ColemanJules L. Coleman Search for more articles by this author PDFPDF PLUS Add to favoritesDownload CitationTrack CitationsPermissionsReprints Share onFacebookTwitterLinkedInRedditEmail SectionsMoreDetailsFiguresReferencesCited by The Journal of Legal Studies Volume 11, Number 1Jan., 1982 Sponsored by The University of Chicago Law School Article DOIhttps://doi.org/10.1086/467696 Views: 168Total views on this site Citations: 53Citations are reported from Crossref Copyright 1982 The University of ChicagoPDF download Crossref reports the following articles citing this article:Dimitrios Kyritsis “Semantic Sting” Controversy, (Dec 2021): 1–6.https://doi.org/10.1007/978-94-007-6730-0_212-1Yezid Carrillo de la Rosa, Joe Caballero Hernández Positivismo jurídico, Prolegómenos 24, no.4848 (Dec 2021): 13–22.https://doi.org/10.18359/prole.4168Jeffrey Kaplan In Defense of Hart’s Supposedly Refuted Theory of Rules, Ratio Juris 34, no.44 (Feb 2022): 331–355.https://doi.org/10.1111/raju.12331Dan Priel Bentham’s Public Utilitarianism and Its Jurisprudential Significance, Ratio Juris 34, no.44 (Feb 2022): 415–437.https://doi.org/10.1111/raju.12334Sari Kisilevsky Hard Cases and Legal Validity: The Internal Moral Significance of Law, (Sep 2021): 197–223.https://doi.org/10.1007/978-3-030-78803-2_12Samuele Chilovi Grounding-based formulations of legal positivism, Philosophical Studies 177, no.1111 (Nov 2019): 3283–3302.https://doi.org/10.1007/s11098-019-01370-5Kenneth M. 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Los conceptos de derecho

Resumen

Legal validity and decided cases

This paper is divided into two sections. In the first section I examine the central role played by the concept of ‘legal validity’ in positivist theories of law. I suggest that this concept is capable of varying interpretations, of which some are wholly inapplicable to case law, while others are inappropriate, suggesting a misleading model of case law reasoning.In the second section, I examine Hart's account of legal validity and the rule of recognition. I suggest that Hart's theory is inadequate because it fails to perceive the special nature of binding practices. I argue that the notion of a binding practice provides the most fruitful basis for an understanding of the common law, and explains the status of case law independently of Hart's account in terms of ‘legal validity’ and the rule of recognition.

Practice and Validity

The word “practice” does not occur frequently in the pages of H. L. A. Hart's book The Concept of Law. Yet the notion of a practice is, if not the key to the science of jurisprudence, at least the key to the central foundations of Hart's theory. The validity of a law, according to Hart, can be established by reference to certain social (or official) practices: in this way questions of legal validity are separated from questions of moral justification. The theory can profitably be read as a study of the connection between the characteristic forms of legal discourse and the existence of social practices.It is surprising that the already voluminous literature on the Hart v. Dworkin dispute has neglected the issues I intend to raise. One of Dworkin's arguments attacks Hart's claim that the existence of a rule is, in some cases, the existence of a social practice. The argument, if successful, would refute everything Hart has to say about the rule of recognition. Can Hart's theory meet this criticism? I shall sketch the hint of a shadow of an analysis of practices which offers Hart an escape, but an escape which has its price. By adopting something resembling my analysis, Hart can preserve major elements of his theory. I will attempt to isolate those features which are valuable and which can be salvaged. The price that Hart must pay, however, is the abandonment of his extreme positivism. If my suggestions about practices are correct, then the ultimate questions concerning legal validity are moral or political questions.

On a Bill of Rights

Writers on jurisprudence often stress that conflict between positive laws and morality does not invalidate the positive laws. A law which requires me to compensate another for an injury caused by a dangerous object kept on my property is not invalidated by the fact that I have not been negligent and have no moral obligation to compensate the injured person. And although I have a moral obligation to keep my promises, positive laws may validly imply that I need not keep promises not made for a consideration or under seal. Thus positive law may permit acts not permitted by morals and may forbid acts permitted by morals. The lesson drawn from these thoughts is that to establish a positive law as valid we need not consider the relationships it bears to the rules of morals. A valid law is simply a law created in accordance with the constitutional conventions or ‘rules of recognition’ of the society in which it is to be applied. It is the manner of its establishment, not its relationship to morals, which makes a law valid.

Regal Power and the Rule of Law: a Tudor Paradox

Tudor statesmen, in their statutes and debates, and Tudor jurists, in reports and treatises, recorded their awareness of an antithesis between regal power and political law. Political action and juridical argument made them increasingly sensitive to an oppugnancy between executive authority and constitutional control. Medieval men of law, too, had noted this inconsonance in England's polity. Sir John Fortescue, while Henry VI's Chancellorin-exile in 1468, faced the dilemma; but he resolved it only verbally. He wrote: “regal power is restrained by political law.” Then he added, “such is the law of the Kingdom” of England. So facile a formula as Fortescue's might make nice theory, yet it was one easier to prescribe than to apply to a live monarch.The pragmatic Tudors, however, succeeded in surmounting the antithesis between political law and regal power, paradoxically, by augmenting both. To solve immediate political crises and to enhance the effectiveness of government, Privy Councilors and parliamentarians passed act after act that increased the King's prerogatives. At the same time, moreover, these very statutes afforced, by implication, the principles of political, or public, law. Kings and queens, judges and councilors, Lords and Commons during the sixteenth century formulated a concept of the rule of law and made it transcendant. By the 1590's they had accorded the rule of law statutory, judicial, and regal recognition. For the Tudor time-being, this principle served to balance regal power and political law and to give to this antinomy a congruity.