Jurisprudence
6
A master rule for law: Hart’s rule of recognition
Contents
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .80 6.1 6.2 6.3 Identifying the rule of recognition . . . . . . . . . . . . . . . . . . . . .81 Criticism of the rule of recognition . . . . . . . . . . . . . . . . . . . . .83 The Postscript . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .85 Reflect and review . . . . . . . . . . . . . . . . . . . . . . . . . . . . .89
page 80
University of London International Programmes
Introduction
This chapter pays particular attention to what is probably the major focus of Hart’s theory: the set of criteria through which laws are identified. Hart is very specific about how we identify the rule of recognition, namely, that its existence is a question purely of empirical fact. It is therefore appropriate in this chapter to see what he says about legal method in his now well-known Postscript to The Concept of Law, because there he affirms that his aim all along in his work was just to give a factual account of law, one that did not import any moral judgment.
Learning outcomes
By the end of this chapter and the relevant readings you should be able to:
describe the rule of recognition in detail describe what Hart calls ‘the necessary and sufficient conditions of the existence of a legal system’ explain the significance of the rule of recognition for Hart for establishing his particular form of legal positivism discuss critically Hart’s claim that the rule of recognition is identified as ‘a matter of fact’ outline the main arguments put by Dworkin in his criticism of the rule of recognition theory express your own opinion about the ‘ultimate’ criteria of legal validity, supported by reasons describe in general terms the position that Hart takes in the Postscript give an account of the significance of the Postscript (a) for interpreting the main doctrines of The Concept of Law and (b) for understanding law
A master rule for law: Hart’s rule of recognition
Contents
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .80 6.1 6.2 6.3 Identifying the rule of recognition . . . . . . . . . . . . . . . . . . . . .81 Criticism of the rule of recognition . . . . . . . . . . . . . . . . . . . . .83 The Postscript . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .85 Reflect and review . . . . . . . . . . . . . . . . . . . . . . . . . . . . .89
page 80
University of London International Programmes
Introduction
This chapter pays particular attention to what is probably the major focus of Hart’s theory: the set of criteria through which laws are identified. Hart is very specific about how we identify the rule of recognition, namely, that its existence is a question purely of empirical fact. It is therefore appropriate in this chapter to see what he says about legal method in his now well-known Postscript to The Concept of Law, because there he affirms that his aim all along in his work was just to give a factual account of law, one that did not import any moral judgment.
Learning outcomes
By the end of this chapter and the relevant readings you should be able to:
describe the rule of recognition in detail describe what Hart calls ‘the necessary and sufficient conditions of the existence of a legal system’ explain the significance of the rule of recognition for Hart for establishing his particular form of legal positivism discuss critically Hart’s claim that the rule of recognition is identified as ‘a matter of fact’ outline the main arguments put by Dworkin in his criticism of the rule of recognition theory express your own opinion about the ‘ultimate’ criteria of legal validity, supported by reasons describe in general terms the position that Hart takes in the Postscript give an account of the significance of the Postscript (a) for interpreting the main doctrines of The Concept of Law and (b) for understanding law