Rule Of Recognition Research Articles

In Defence of Hart

In his important and engaging book Legality, Scott Shapiro seeks to provide the motivation for the development of his own elaborate account of law by undertaking a critique of H.L.A. Hart's jurisprudential theory. Hart maintained that every legal system is underlain by a Rule of Recognition through which the officials of the system identify the norms that belong to the system as laws. Shapiro argues that Hart's remarks on the Rule of Recognition are confused and that his model of law -- though commendably more sophisticated than any model propounded by earlier legal positivists -- is consequently untenable. Having thus endeavored to establish that Hart's exposition of the nature of legality is unsustainable, Shapiro contends that a new approach is vital for progress in the philosophy of law. With his lengthy presentation of his own Planning Theory of Law, he aspires to pioneer just such an approach. Except for a very terse observation in the final main section, this article does not directly assess the strengths and shortcomings of Shapiro's piquant Planning Theory. Instead, I defend Hart against Shapiro's charges and thereby undermine the motivation for the development of the Planning Theory. Admittedly, while arguing that Hart's jurisprudential theory is broadly sound and that Shapiro's alternative is therefore superfluous, this article does not attempt to uphold every detail of Hart's ruminations on law. Having criticized Hart on a number of points elsewhere, I am scarcely inclined to suggest here that his writings are entirely beyond reproach. Nonetheless, nearly all the objections to Hart's work posed by Shapiro are inapposite, or so this article will aim to show.

Is the Rule of Recognition a Rule?

Is the Rule of Recognition a Rule?

Human Rights and International Economic Law: Common Constitutional Challenges and Changing Structures

This contribution is based on my lecture at the SIDI XVI annual meeting of the Italian Society of International Law in June 2011 at Catania. Section I of this contribution recalls that – due to the ‘dual’ and ‘incomplete nature’ of human rights as positive law and moral rights - the legal protection of ‘inalienable’ human rights risks always remaining contested, especially in international economic law (IEL). In both UN human rights law (HRL) as well as in IEL, the worldwide recognition of ‘duties to protect’ calls for stronger protection of human rights in international economic regulation (II). Human rights, ‘constitutional justice’ and IEL increasingly limit the ‘rules of recognition’ in HRL as well as in IEL (III). The need for ‘institutionalizing public reason’ and the necessary legal ‘balancing’ of civil, political, economic, social and cultural rights call for ‘constitutional’ and ‘cosmopolitan reforms’ of IEL (IV). As in ‘human rights revolutions’, citizens also have to ‘struggle for justice’ in IEL, notably for judicial protection of transnational rule of law with due respect for HRL (V). HRL protects ‘margins of appreciation’ in the domestic implementation of international obligations and requires respect for ‘reasonable disagreement’ on the diverse conceptions of IEL (VI). The increasing recognition of the ‘indivisible’ and ‘inalienable’ nature of human rights, and the worldwide recognition of collective ‘third generation human rights’, reflect the increasing importance of cosmopolitan rights for supplying international public goods more effectively (VII). The ‘collective action problems’ require additional institutional innovation and multilevel constitutional restraints of economic regulation (VIII). Multilevel governance of human rights and of IEL must be coordinated through multilevel ‘constitutional bottom-up pluralism’ and through multilevel judicial protection of transnational rule of law for the benefit of citizens (IX).

Validity, Rule of Recognition and Stability: Revisiting Analytical Concepts from the Law‐Morals Connection

Validity, Rule of Recognition and Stability: Revisiting Analytical Concepts from the Law‐Morals Connection

Analysis of MicroRNA-Induced Silencing Complex-Involved MicroRNA-Target Recognition by Single-Molecule Fluorescence Resonance Energy Transfer

MicroRNAs (miRNAs) are important regulators of gene expression that control almost every physiological and pathological process. Although the complementarity between the seed region of a miRNA and its target mRNA is usually deemed as the key determinant in the miRNA-target recognition in animals, the mechanism of their recognition still remains enigmatic as more and more exceptions challenge the seed rule. Herein, we employ single-molecule fluorescence resonance energy transfer (smFRET) to investigate human miRNA-induced silencing complex (miRISC)-involved miRNA-target recognition with either perfect base pairing or poor seed match in real time. Our results demonstrate that the recognition between mammalian miRNA and its target with perfect base pairing proceeds in a two-state model as prokaryotic guide DNA-mediated recognition, suggesting a conserved pattern of guide RNA/DNA strand recognition. In addition to the general rule of miRNA-target recognition, our results reveal that annealing between miRNA and its target with poor seed match proceeds in a stepwise way, which is in accordance with the increase in the number of conformational states of miRNA-target duplex accommodated by the miRISC, suggesting the structural plasticity of human miRISC to conciliate the mismatches in seed region. This new dynamic information revealed by smFRET has an important implication for comprehensive understanding of the role of miRISC in the target recognition in mammals.

The King Is Dead, Long Live the King? A Reply to Matthias Goldmann

Matthias and I clearly agree on a great deal: a voluntarist approach to defining public international law is unsatisfactory; any rule of recognition in international law must provide a basis for a link between legality and legitimacy; one of the central contributions that law can make to international society is procedural in nature. However, our respective positions on the utility of a binary distinction between law and not-law have significant impacts on our approaches. We are both concerned, I think, with preserving the autonomy of politics – with ensuring that politics (or, more specifically, international public authority) do not come to be invaded by law. My own concern with preserving the autonomy of law leads me to two conclusions with which Matthias would take issue: that international public authority must be constituted by law; and that the rules which those authorities administer must be treated differently, depending on whether or not they meet a set of formal criteria that legal rules must satisfy. I will also address Matthias's discussion of Lon L. Fuller's internal morality of law and Benedict Kingsbury's concept of publicness in international law. I believe that both sets of concepts may be useful to Matthias's argument and deserve further attention. First, however, I would like to explore what it means, or could mean, to cut off the head of the king.

Recognition of the invasive species Robinia pseudacacia from combined remote sensing and GIS sources

Monitoring the spread of invasive species is crucial for nature conservation; however regularity can only be assured if cost-effectiveness can be achieved. We aimed at testing low-cost remote sensing sources and simple methodology for recognising the invasive species Robinia pseudacacia and thus founding a monitoring scheme. A study area with mixed wooded stands containing R. pseudacacia has been selected for this purpose in NE Slovenia. Four different sources (Landsat ETM and airborne orthophotos from summer and spring) were tested together with a filtering for forested areas. Filtering was based either on Landsat information or on a forest polygon layer as alternatives. Generalised linear models were constructed in a training window within the study area to establish a statistical rule of recognition for the species based on spectral information. Models were tested both within and outside the training window for accuracy. As means of accuracy assessment both the well-established AUC and the specially adapted Jaccard index have been applied.The best and most reliable recognition was achieved by using the spring orthophoto, in which the species was captured in flower, combined with a GIS filtering by a forest vector layer. The superiority of this combination was especially striking when tested over the full study area. The Jaccard index appeared to be more sensitive in discrimination between models. Thus we conclude that even spectrally less detailed data sources may provide a basis for successful monitoring if the phenology of the target species is also considered.

The Rule of Recognition – a Remedy for the External Uncertainty of Law?

According to H.L.A. Hart, the rule of recognition is one of secondary rules that is supposed to be a remedy for the uncertainty of primary rules. In this paper we will try to answer the question: To what extent may this rule guarantee legal certainty? After discussing important differences between the concept of the rule of recognition and Kelsenian concept of the basic norm (Grundnorm), we will examine the role of the rule of recognition in the context of the problem of the external certainty of law. When analyzing its content, meaning and effects of using the criteria of validity contained in the rule of recognition, we discovered three types of uncertainty related to the rule of recognition: the substantive, interpretive and applicative one. Our considerations have led us to the conclusion that the rule of recognition, having as its aim the function of removing the uncertainties of law, is itself one of the sources of these uncertainties. It is difficult to consider it as a genuine effective remedy to the external uncertainty of law. The construction of the rule of recognition means that the degree of certainty which we obtain as a result of its application appears to be greater than in the case of “ordinary” primary rules within the system, yet we will never obtain a total external certainty of law unless we apply another theoretical construction.

Grassroots Constitutional Politics in Iceland

Iceland has recently embarked on an experimental form of constitution-making from below. Iceland is in this a rare – in distinct ways probably unique - example of a popular or citizen-driven constitutionalism. This participatory approach in many ways challenges core assumptions of mainstream, modernist understandings of constitutionalism, such as the idea of constitutionalism as a social phenomenon and practice dominated by legal professionals or that of constitutions as higher laws that are near to impossible to change. At the same time, the Icelandic experience brings to the fore many questions that popular or democratic constitutionalism raises as an alternative understanding and practice of constitutionalism, not least related to the modes and effectiveness of participation, the notion of representation in the constitution-making process, the role of deliberation, as well as the actual, substantive results of participatory constitution-making. Recent debates among experts of constitutionalism have centered for a good part on the tension between the constitution as a higher law, on the one hand, and democracy, politics, and civic participation, on the other. While some argue that there is no tension between constitutions and democracy, since the former provide the necessary prerogatives for the latter 1 , many observers see a strong tension between the legalist idea of higher laws (i.e., laws that are particularly difficult to revise), including the ideas of entrenched rights and the guardianship of constitutions by means of judicial review, and democratic politics inspired by the idea of popular sovereignty. 2 The latter would include the idea of the governed being able to give themselves their own laws. Those emphasizing the civic-democratic dimensions of constitutions often take a very different view of the role of the constitution in democratic societies than that of a legalistic perception of a higher law. 3 Rather than providing the fundamental parameters for democratic regimes, constitutions are seen as vehicles of public participation and debate, as well as of social integration. James Tully, for instance, endorses what he calls “democratic constitutionalism”, a form of constitutionalism that endorses “the freedom of the members of an open society to change the constitutional rules of mutual recognition and association from time to time as their identities change”. 4 An important component in democratic constitutionalism is an emphasis on the possibility of the members of a

The Role of Conventions in Law

In this review of Andrei Marmor's book, Social Conventions: From Language to Law, I offer two objections to Marmor's claim that rules of recognition are best thought of as constitutive conventions. First, even if rules of recognition exist, it is doubtful whether all such rules satisfy Marmor's requirements for something to be a convention. Some rules of recognition may not be supported even by pro tanto reasons or, if they are, they may not be arbitrary in the way Marmor claims that conventions are. Second, even if rules of recognition exist and are conventional, it is doubtful whether they play the role in constituting legal practice that Marmor ascribes to them.

Research of Chinese Named Entity Recognition Using GATE

Named Entity Recognition is one of the important research fields in Information Extraction. This paper first introduces Information Extraction and Named Entity Recognition, then introduces GATE which is a tool for Information Extraction, and discusses the rules of Money Recognition using GATE.

The Humiliation of Law: Legal Theory and Epistemic Fruit

Epistemic purposefulness should be the normative driver in evaluating legal theory, by which I mean legal theory should be useful as a tool for investigating the phenomenal world without arbitrary limits to such investigation. Heuristically we can see that law is about norms and institutions of social coordination and control. Legal positivists take the epistemic purposefulness of legal theory as given, and argue that the existence of law is quite different from its merit or demerit. (In so doing most positivists intend to reject natural law only as legal theory, and not as an exercise in thinking about political morality, which it can validly remain). However, positivism generally falls short in its normative commitment to epistemic usefulness by limiting the range of phenomena in which it is interested to those of the 'state.' By leaning on the municipal/international legal order for a determination of the existence of states positivists fall into a vicious circularity. Taking Hart’s description of a rule of recognition seriously, and deepening an understanding of that, we are forced into an appreciation of the ways in which legality is rooted in the broader, extra-legal social order. Taking the epistemic commitments of positivism seriously and acting like scientists, (anthropologists, say), we can be nothing but legal pluralists. Because discourse around law is often honorific, claiming that law is the provider of good things, being epistemically serious about 'law' may ultimately have a salutary effect in dampening these honorific claims.

Farewell to the Rule of Recognition?

I will argue that the rule of recognition, as it has been conceived by Hart, is either a redundant, and hence mostly useless, concept, or a concept with limited explanatory potential – in either case, at best a concept whose scope is, in contemporary legal systems, much narrower than Hart envisaged. I will also argue that the rule of recognition, in one of its possible (and plausible) reformulations, can nevertheless play a significant, non-redundant role, but only if employed in a rather different way than the one proposed by Hart, as well as by much of post-Hartian positivist literature.

RAZ ON THE INTERNAL POINT OF VIEW

This article addresses the question of whether judges can take the internal point of view toward—accept—their legal system's rule of recognition for purely prudential reasons. It takes a fresh look at an underappreciated conceptual argument of Joseph Raz's that answers: no. In a nutshell, Raz argues that purely prudential reasons are reasons of the wrong kind for judges to accept their legal system's rule of recognition. And should Raz's argument succeed, an important necessary connection between law and morality would be established.

When Conventionalism Goes Too Far*

Legal positivism used to be a lean theory. When it first entered the arena,challenging natural law theory, it was strikingly lean compared to itsopponent. It offered a thin concept of law, to replace the thick, value-ladenconcept developed in the natural law theory. And this was its strength. Thechampions of legal positivism argued convincingly that the conditions forthe existence of law had been made too thick. Natural law theory hadinjected the existence-question with moral considerations that were betterleft aside. In the words of John Austin, the existence of law is one thing,its merit or demerit is another (Austin 1996, 132).But these were the good old days. If you take a look at legal posi-tivism today, you will see that it is not such a lean theory anymore. Likean aging prizefighter, it has put on some weight over the years. In itsdevelopment after Herbert Hart, the concept of law offered by legalpositivism has been beefed up with a theory known as conventionalism.According to this theory, the existence of a legal order not only requiresthat legal officials obey its fundamental rule, the rule of recognition. Theexistence of law also requires that the fundamental rule is obeyed as aconvention. This means that the reasons for obeying the law must bebased on the expectation that others obey it. As Hart puts it: rules areconventional social practices if the general conformity of a group to

Re-Visiting the Viability of the Rule of Recognition and the Basic Norm in Modern Legal Context

Both H.L.A. Hart and Hans Kelsen views the concept of a legal system from the perspective of legal positivism. The defect of ‘uncertainty’ that is the lack of authoritative procedures for deciding the rules as to the precise nature of the primary rules, would be remedied by a secondary rule which Hart terms ‘the rule of recognition’. The rule of recognition determines the criteria by which the validity of the rules of a legal system is decided from the internal aspect. It is, in part duty imposing. The rule of recognition presupposes the existence of judges whose duties are laid down by the rule of recognition. In Kelsen’s terms, law is based on norms which stipulate sanctions and the validity of a legal norm depends solely on its having been authorised by another legal norm of a higher rank, The final norm’s validity cannot be derived from a higher norm; the reason for its validity cannot be questioned.Hart’s rule of recognition is more viable than Kelsen’s grundnorm. Because, modern culture looks at law and legal systems empirically - as fundamentally involving questions of social facts which is present in the rule of recognition whereas for Kelsen the law was fundamentally nonempirical.However, one benefit of grundnorm is that it allows the underlying logical structure of legal systems to be revealed, just as the philosophers' approach to language reveals its logical structure.

Rescuing Inclusive Legal Positivism from the Charge of Inconsistency

Scott Shapiro argues that moral rules validated by any inclusive rule of recognition can make neither an epistemic nor a motivational difference to the practical reasoning of the agents of a legal system. I argue that Shapiro's argument fails because he is using a wrong conception of content-independent reasons, moral rules can be intended to be peremptory reasons for acting, and moral rules validated by any inclusive rule of recognition can pass Shapiro's counterfactual test.

Hart’s Rule of Recognition: ‘The Foundations of a Legal System’ or a Form of Judicial Customary Rule?

The rule of recognition is the foundation of a legal system for Hart. This work thoroughly discusses the rule of recognition from every possible aspect and mentions the various ways in which Hart has used it in his literature. This article adds to the list of shortcomings in Hart’s treatment of the rule of recognition and finds inconsistencies in his position regarding the same. Hart considers every standard used by the court for its decision as a rule of recognition. Therefore, when a decision is based on a legal principle Hartian theory would consider it as a rule of recognition.

Problems of the Internationalization of the Practice of Law (in French) (La Problématique de L'internationalisation de L'exercice du Droit)

The bases of the internationalization of the practice of law are better known. Initially, the establishment of a new paradigm of the international trade of services will have to be integrated. This paradigm appears by the application of the principles of free trade, economic integration and liberalization of the practice of law, while recognizing the necessary control of the profession and the protection of the public. Secondly, the international economic agreements for the liberalization of the international trade of legal services were signed and are already implemented in our rules, at least partially. Lastly, crucial choices for the international trade of legal services will have to be made with regard to the access rules to the bars of the various jurisdictions. This text aims at defining the problems of the internationalization of the practice of law and at proposing some conceptual and practical solutions in the debate which opposes two designs. If it would be wise to allow the presence of the 'foreign legal consultants' if only for the symbol of internationalization that that would allow, it remains that the validity of the concept is not shown on the practical level and the interests of the customers would perhaps not be well served. The appendix 1210.5 section B of the ALENA is disputed by the Mexican position and in certain aspects by the position of Quebec. The committees of the NAFTA Partners did not explore much of the application of the Appendix 1210.5 section A aiming at the application of bilateral rules of mutual recognition of the occupational qualifications. This avenue aims at full integration to the local bar. It is the solution adopted by the European Union. The Quebec's Code of the professions and the Law on the Bar authorize these negotiations for lawyers of Quebec. Finally, one of the stakes of the forthcoming negotiations having to begin on January 1, 2000 within the framework from the World Trade Organization and the General Agreement on Trade in Services will be, in the sector of the legal services, the lowering of the barriers to the access to the local bar by the negotiation of agreements of mutual recognition founded on transparency and the interior regulation according to international standards.

Between Lex Lata and Lex Ferenda? Customary International (Criminal) Law and the Principle of Legality

International courts serve an important function in finding and interpreting existing law, but as noted already forty years ago the focal problem of international courts is that: “the borderlines between interpretation of existing law and the making of new law are inevitably fluid.” Particularly in interpreting customary international law the courts face situations which call for innovative methods in determining the definition and the scope of the law. International criminal law has only recently grown more coherently codified, but still bears much on customary law elements, unlike some other fields of public international law, in which rules have been quite thoroughly codified. Additionally, in criminal law issues such as foreseeability, and non-retroactivity, to mention a few, ought to be given a high credence, or the reason that it is the liberty of an individual that is at stake. In discovering and applying customary international law, international criminal courts are confronted with the balancing exercise between following positivist approach – attaching itself to law as it is, as enacted or adopted by an authority, and may lead to an undesired, even unjust outcome in criminal trials – and natural law approach – arising from inherent rights and duties regardless of their formal recognition, and may risk the violation of the principle of legality. Principle of legality determines the limits of the law-making process and encompasses norms that legal rules must adhere to, such as clarity, promulgation and non-retroactivity.The question arises, how can the courts preserve the principle of legality, and especially the prohibition of retroactive effect of law, in interpreting – and in formulating – customary international law in a progressive manner. Should the principle of legality be applied liberally in order to bring perpetrators to justice, or is strict application necessary in criminal courts, even at the cost of some impunity? This paper analyses how these two aspects should be balanced and reconciled against one another in discovering, interpreting, and applying customary international law, with reflections on theories of H.L.A. Hart and Lon Fuller – the two influential proponents of modern positivist and natural legal thought, respectively – and recent case-law of international courts in fields of international criminal law and human rights law. Also, Hart‟s primary and secondary rules, and rule of recognition are considered in the determination of what may count as customary international law. First, I consider the principle of legality and its importance in the formation of law – with emphasis on customary international law, followed analysis of its link to morality and the concepts of lex lata and lex ferenda. I have included a brief discussion on the application of primary and secondary rules and rule of recognition in the formation of (customary) international law. Finally, I analyze selected recent court decisions which deal with international crimes and the principle of legality, with the aim of reflecting on the above issues.