A host of problems
The rule of recognition, thus, is a norm existing only — as Hart says in a passage already quoted earlier — "as a complex, but normally concordant, practice of the courts, officials, and private persons in identifying the law by reference to certain criteria" (Hart 1994, 110).
Those criteria are the ultimate criteria of legal validity; thus, the rule of recognition "provides criteria for the assessment of the validity of other rules; but [...] there is no rule providing criteria for the assessment of its own legal validity" (ibid, 107). Therefore, the rule of recognition is neither legally valid nor invalid, because there is no other, higher criterion of legal validity. This, of course, gives rise to a number of questions which can be grouped into the following blocks:a) It has just been said that the rule of recognition exists "as a complex practice". But who are the subjects of that practice? And what are its characteristics? Are the different kinds of subjects, like judges, legislators, and private persons involved in different practices, all of them contributing to shaping, maintaining, or gradually changing the rule of recognition? Do some of these practices, or some of those types of subjects, in some sense have a privileged position?
b) What does the rule of recognition prescribe that is not prescribed in the norms identified according to it, that is, the norms of the legal system? Is the rule of recognition really a norm, or is it only a conceptual criterion for the identification of norms? What functions does the rule of recognition fulfil? Does acceptance of the rule of recognition necessarily require a moral justification?
c) Does every legal system have one and only one rule of recognition? Can the ultimate criteria of legal validity contained in the rule of recognition contain indeterminacies or zones of penumbra?
We will try to answer each one of these blocks of questions, one at a time, in the following paragraphs.
6.
More on the topic A host of problems:
- Problems with our conception
- The state and problems of legitimacy
- After Method: International Law and the Problems of History
- 4.2 INTERNATIONAL LAw/lNTERNATIONAL HISTORY: SPECIFIC PROBLEMS, CONCEPTUAL FRAMES, INHABITED WORLDS
- After having treated, in the first two chapters, the problems of mandatory norms — rules and principles — and of power-conferring rules, purely constitutive rules and definitions, we will now set out to examine permissive sentences.
- THE CHARACTER OF REMORSE
- Beyond the state?
- Life at the University in Berlin
- Rational choice institutionalism
- Argumentation and Persuasion in Policymaking: The Interpretive Turn
- CONCLUSIONS
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- Curbs on rapacity: jurisdiction
- Arra
- Defining the state
- 4.3 AFTER METHOD
- Loose Coupling in Albania