The conceptual, directive and evaluative dimensions of the rule of recognition. The rule of recognition and the exclusionary claim of the law. Why accept the rule of recognition?

We said that the central pillar of the rule of recognition of the Spanish legal system is the acceptance of the Constitution of 1978 as that system's supreme source. Thus the rule of recognition refers directly to the Constitution, and indirectly to the norms issued or received in accordance with it.

Or, to express the same idea in terms of authorities — at the cost of not being able to account for norms that do not have their origin in acts of an authority, as, for example, customary norms —, the rule of recognition refers directly to the authority of the constituent assembly, and indirectly to the authorities recognized or instituted by it. All this means that the rule of recognition, on the one hand, provides a criterion for the identification of norms and, on the other, is a guide for behaviour and a criterion of evaluation, for the general public as well as for the law-creating and law-applying organs.^[71] As a criterion for the identification of norms, the rule of recognition draws the limits of the Spanish legal order: the norms belonging to that order are those contained in the Constitution and in the sources recognized or instituted by the Constitution. As a guide for behaviour and a criterion of evaluation, it commands that the norms thus identified should be obeyed, and it also refers to those norms as a criterion for the evaluation (i. e., the justification or critique) of behaviour.^[72]

Depending on the context, the two practical dimensions — that of a guide of behaviour and and that of a criterion of evaluation — emphasize different things. Thus, of the norms the rule of recognition refers to, those addressed to the general public — which, following Alchourron and Bulygin (1971), we can call the primary or subject system — function mainly as guides of behaviour for their addressees (the general public), whereas for the law-applying organs they are criteria of evaluation that must be used to judge the behaviour of the former.

As for common private citizens, they too use the rule of recognition and the norms it refers to as criteria of evaluation, either of the behaviour of other private citizens or of the legal decisions issued by the normapplying (or norm-creating) organs. And as for the law-applying organs, the norms addressed to judges as such operate for them mainly as guides of normative behaviour while, at the same time, providing the criteria of evaluation according to which higher courts — formally — and the whole of the legal community — informally — judge such normative behaviour. The difference between organs of application and simple private citizens, in that respect, seems to be that the former, but not the latter, are addressees of norms, functioning for them as guides of behaviour, which order them precisely to use other norms of the system as criteria of evaluation for the solution of the cases presented before them.

7.1. What has just been said seems to give rise to a first difficulty which we can call the 'redundant character of the rule of recognition' and which affects the practical dimensions of that rule (that is, its dimensions of a guide of behaviour and a criterion of evaluation). Because if the rule of recognition, as a guide of behaviour and a criterion of evaluation, refers to the norms contained in the Constitution and in the sources recognized or instituted by it, then what guide of behaviour and criterion of evaluation does the rule of recognition provide that is not already contained in the norms it refers to? This circumstance, that the rule of recognition does not order or justify anything not already ordered or justified by the norms it refers to, has led Eugenio Bulygin to think that, as a norm, the rule of recognition is totally superfluous, and that it should be understood merely as a conceptual criterion for the identification of norms, that is, as a definition (Bulygin 1976, 1991a, 1991b; cf. on this also Ruiz Manero 1990 and 1991).^[73] Now, in our opinion, the obligation, stipulated by the rule of recognition, of following as guides of behaviour and using as criteria of evaluation the norms contained in the sources it refers to (i.

e., the valid norms of the system) is not merely a repetition of the content of those norms. What the rule of recognition commands is that, whenever applicable, the conventions and commands of authorities the rule itself refers to — and not what the addressee himself, on the basis of his own balance of the reasons pertinent to the case in question, considers to be the best course of action to follow, or the best decision to issue, or the most fitting evaluation of the behaviour to be judged — ought to be accepted as norms (that is, followed as guides of behaviour, and used as criteria of evaluation). In ch. I, we have accepted Raz's (1990) thesis that the legal system is an exclusionary system, in the sense that, when its norms are applicable, it requires that one act and judge on the basis of those norms, excluding all reasons other than those norms as a basis for action and evaluation (except in those cases where the norms themselves permit the consideration of other reasons). Although we will later discuss some of the characteristics of this thesis in Raz's work, what we are interested in now is that to accept the rule of recognition is equivalent to accepting the law's claim of being exclusionary.^[74] This makes it possible that (in contrast to a mere conceptual criterion) the rule of recognition can be disobeyed, although disobeying the rule of recognition also necessarily implies disobeying some other norm of the system, just as one cannot obey the rule of recognition without obeying some other norm of the system.

Therefore, in our opinion, the thesis formulated, among others, by More- so, Navarro and Redondo (1992) that for a legal justification one does not need to go beyond that norm of the system that works, so to speak, as the major premise of the well-known syllogism is untenable. Those authors believe that an argument like the following:

1) If z is a resident of district A, he ought to pay tax I.

2) z is a resident of district A.

3) z ought to pay tax /.

is a sufficient (complete) justificatory argument if it is shown that 7) is a legal norm. And that, they say, can be done by the following theoretical argument:

1') There is a sovereign norm^[75] authorizing districts to issue norms on municipal taxes.

2') District A has issued the norm contained in 7) on municipal taxes. 3') The norm contained in 7) is a legal norm.

Thus, what they are saying is that in order to justify a judicial decision, it suffices to understand the rule of recognition as a conceptual criterion for the identification of legal norms. In our opinion, however, that is wrong. In the previous argument, from the set of 7'), 2'), and 3') one cannot simply jump to 7). The conclusion of the second (theoretical) argument 'The norm contained in 7) is a legal norm' is relevant for thinking that z ought to pay tax 7, regardless of any reasons that would support the opposite decision, or that z acts in a justified way if and only if he pays tax I, only if one presupposes another premise, namely: 'As guides of behaviour and critera of evaluation, one ought to follow legal norms and not any other, possibly conflicting reasons'. That is, one must presuppose the rule of recognition as a norm referring to legal norms as guides of behaviour and criteria of evaluation, excluding any other reasons that may be applicable to the case.

7.2. The thesis that legal systems claim to exclude any other, countervailing reasons — in the sense described above — and that acceptance of the rule of recognition implies acceptance of that claim of being exclusionary must be distinguished from the thesis — closely connected to it in Raz's work — that legal systems "do not acknowledge any limitation of the spheres of behaviour which they claim authority to regulate", since "they claim authority to regulate any type of behaviour" (Raz 1990, 150). In Raz's view, this is also true of those legal systems "which contain, for example, liberties granted by constitutional provisions which cannot be changed by any legal means.

Such systems may not claim authority to regulate the permitted behaviour in any other way but they regulate it in one way by permitting it" (ibid., 151). In our view, that thesis is obviously confused, and the confusion is rooted, we think, in the notion of 'claiming authority to permit'. To claim authority (exclusively) to permit a certain form of behaviour without, at the same time, also claiming authority at least to prohibit it,¹¹ is not to claim any authority at all over that form of behaviour. Because one cannot claim authority over a form of behaviour without claiming the legitimacy of providing guidance on that form of behaviour. But permission, in contrast to commands or prohibitions, does not by itself offer any guidance. Thus, if the constituent assembly declares that it cannot legitimately regulate some form of behaviour except in the form of a permission, it is not asserting a claim of authority over that form of behaviour; rather, it is acknowledging a limit to that claim, that is, it points to an area over which it does not claim authority. That is the case when the Spanish constituent, for example, acknowledges — according to the formula repeatedly used in our Constitution — certain rights of freedom. Over these matters, the constituent does not claim authority, but asserts that there are domains where it cannot legitimately intervene with acts of authority.

7.3. Thus, even after this relativization, as we saw before, the existence of a rule of recognition of a legal system still consists in a shared acceptance of the norms that rule refers to as guides of behaviour and criteria of evaluation; and whenever they are applicable, those norms exclude the applicability of any other reasons not contained in, or recognized by, them. The rule of recognition thus exists as a conventional^[76] ^{^[77] (or, if you prefer, a customary)^[78] norm that, in the case of developed legal systems, refers mainly to norms issued by authorities (in the Spanish case, directly to the Constitution, and indirectly to the norms issued or received in accordance with it).}

If understood in this way, the rule of recognition provides the ultimate criterion of legal justification, because beyond it, there are no legal criteria of any kind. And the only thing a legal system requires is a justification in terms of the system itself: For the law, it suffices that one follow the rule of recognition, irrespective of the reasons one may have for doing so.^[79] However, from the point of view of the practical reasoning of an individual who follows the rule of recognition, the question about the reasons justifying this compliance makes perfect sense. And a person asked to justify her compliance with some rule of recognition, if she does not want to commit a circularity (and a naturalistic fallacy), cannot invoke as an operative reason for it the fact that there is such a convention, nor the fact that there exists a prescription from the authority the rule of recognition itself refers to as the supreme authority; instead, she must give autonomous reasons, i. e., reasons valid because of their intrinsic merits (and which, in any case, can give some value, as auxiliary reasons,^[80] to conventions or acts of authority with certain characteristics). Such reasons, besides, cannot be based on that person's own interest, but must be impartial, because the norms the rule of recognition refers to (i. e., legal norms) obviously impose duties not only on the interrogated person herself, but also on all others who fulfil its conditions of application. But reasons that are, at the same time, autonomous and impartial we usually call 'moral' reasons. Thus, although a justification based on the rule of recognition does, of course, not necessarily imply a moral justification, the justification of the rule of recognition itself can only be based on moral reasons.

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Source: Atienza Manuel, Manero Juan Ruiz. A Theory of Legal Sentences. Springer Netherlands,1998. — 205 p.. 1998

The conceptual, directive and evaluative dimensions of the rule of recognition. The rule of recognition and the exclusionary claim of the law. Why accept the rule of recognition?

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