Who shapes the rule of recognition?

Concerning the first block of questions, in our view, we must start from the following idea: When it comes to identifying the rule of recognition of some legal system, from an external point of view, we must, in the last instance, look at the criteria of legal validity accepted in the practice of the courts; but, of course, that does not mean that the judiciary is the authority that issues the most basic norm of the system.

What we wish to underscore is the decisive importance of the acceptance of that norm by judges and courts — an acceptance which implies that they also recognize their duty to apply pre-existing norms in their rulings (that is, that they recognize the authoritative character of such norms, or if you prefer — in the case of explicitly prescribed norms which play a central role in all developed legal systems —, the authority of those who have enacted them). Let us now take a closer look at all this.

6.1. The institutional role of a 'judge' or 'court' seems to have two defining elements: the first one is having the normative power to solve the cases in an authoritative way, that is, the normative power to issue binding decisions on the cases brought before them; the second one is having the duty to see to it that such decisions are applications of pre-existing norms which are binding for the judge or court himself. If one of those two requirements is missing, we are not dealing with a judge or court in the legal sense (that is, the sense of a lawapplying organ), but with a referee, an umpire, a mediator, or something of the kind. The sum of those two characteristics explains why it is crucial to look to the courts when it comes to determining the legal system existing in a community (or, in other words, the rule of recognition allowing one to identify the set of norms that legal system is composed of). Because it is, in fact, the courts which are authorized to take binding decisions on the normative situation of individuals.

Thus, if the norm-creating institutions would come into conflict with the norm-applying institutions (with the courts) and the latter would not recognize as binding the norms issued by the former, then what would be relevant for the general public would be considerations about those norms actually recognized by the courts as binding, and not about those the (alleged) norm-creating authority enacts with the mere claim — not recognized by the courts — of bindingness. So, we could say that an (alleged) norm-creating authority, an (alleged) legislative chamber or constituent assembly, is such a thing if and only if it is recognized as such by the courts. Going back to the Spanish case, to say that the normative claims of the Constitution have become reality, that the Constitution is, in fact, the supreme source of the system, basically (if understood as an assertion about existing law) means that the courts have recognized it as such.

6.2. This recognition of the Constitution as the supreme source of the system by the courts can be seen as the result of a number of different factors, among which a general attitude of acceptance towards the Constitution's claim to normative supremacy among jurists, among the political class, and among the general public seems to be fundamental. That general attitude, in turn, can be regarded as resulting from the belief in the value of the Constitution for giving the country a framework for a stable life in society respecting certain individual rights said to be of basic value, etc. All this takes us to two kinds of questions to be answered: first, that of the reasons underlying the acceptance of a rule of recognition; second, that of the contribution of different kinds of subjects, besides the judiciary, to that situation of shared acceptance the existence of a rule of recognition depends on. We will leave the first question for later treatment, and take on the second one — that of the contribution of subjects like legislators and administrative organs, lawyers and the proverbial 'man in the street' to the existence of the rule of recognition.

6.2.1. The contribution of legislators and norm-producing administrative organs to the existence of the rule of recognition basically translates into their acceptance of the normative framework that gives them their powers to produce norms and imposes duties concerning the exercise of those powers on them (for example, imposing constraints for the possible content of legislation). Such acceptance implies the use of the conferred powers, and compliance with the related duties (for example, the respect of constitutional constraints on the content of laws).

6.2.2. Concerning legal theorists, the example of Garcia de Enterria mentioned earlier is instructive about the capacity they may come to have for contributing to the shaping of the rule of recognition accepted by the judiciary. As for practicing lawyers, their contribution to that existence can be seen to consist mainly in forming expectations: if they would not 'expect' judges, legislators, and administrative organs to act — at least up to a certain point — in accordance with the system's rule of recognition, their own practice as lawyers would make no sense.

6.2.3. Finally, even mere private citizens contribute to the existence of the rule of recognition, because one could not use the law as a mechanism of foreseeing the consequences of one's own behaviour, if one would not expect norm-applying and norm-producing organs to follow one and the same rule of recognition. Therefore, when the latter seem to deviate from it, public opinion — insofar as it does not desire a change of the rule of recognition — reacts with criticism. An interesting example of this seems to be the case of certain critiques, published in the media, of acquittals in some cases of 'conscientious objection' (against military service). We are referring to critiques reproaching the judge for having put his own conscience above legislated norms which are binding for him, that is, to have acted against what is required by the rule of recognition.

We will come back to this case, which will also serve to illustrate another problem related to the rule of recognition.

6.3. We have said that the ultimate criteria of legal validity allowing us to identify the set of norms a legal system consists of are part of a norm — the rule of recognition — that exists only insofar as it is accepted and practiced by the entire judiciary (although, as we have seen, other subjects also play a role in shaping and maintaining that ultimate norm). This seems to pose the following problem: In order to determine what the rule of recognition of a legal system is, we must first identify what organs the judiciary of that system consists of; but those organs, in turn, are what they are because of the rules of that system which confer judicial powers, and the validity of such rules depends, in the last instance, on their being in accordance with the rule of recognition of the system. Therefore, putting a rule of recognition accepted by the judiciary at the base of a legal system seems to lead into a circle: in order to determine the rule of recognition, we must identify the judiciary; but we cannot do that without taking into account rules conferring judicial powers whose validity, in turn, in the last instance, depends on the rule of recognition. Several solutions intended to 'break the circle' by identifying the judiciary with the help of criteria other than the rules of the system conferring judicial powers have been suggested for this problem. Thus, Neil MacCormick has proposed to identify judges in terms of social rules of duty (MacCormick 1981, 109 ff.); Carlos Nino, in contrast, has proposed to go about it in purely factual terms, characterizing as judges and courts "those who actually can (in the factual, not in the normative sense of the word 'can') determine the exercise of the state's monopoly of coercion in particular cases, that is, those who are, in effect, able to set in motion the coercive apparatus of the state" (Nino 1980, 128).

Elsewhere, one of us has already criticized these proposals (cf. Ruiz Manero 1990, 124 ff.), and we do not need to repeat that criticism here. But what we do wish to point out is that these attempts to 'break the circle' which, besides, were highly artificial — just like some of the detours in Juan Ruiz Manero's attempt (ibid.) to present an alternative solution —, overestimate the difficulty of the problem. Because we can do with a much simpler criterion for identifying judges and courts: we can just look at those who are socially recognized as such, that is, as holders of the powers and duties defining, as we have seen, the institutional position of the judiciary. And for identifying judges in this way apparently we do not need much theoretical sophistication or special knowledge; it is purely a matter of everyday experience. If one accepts this point of departure as the central pillar of our 'model' of the legal system, the fact that this 'model', seen from within, becomes 'circular' — in the sense that in order to determine the accepted ultimate criteria of legal validity (that is, the rule of recognition) we refer to the practice of the judiciary, and in order to determine who belongs to that we refer to rules whose validity depends, in the last instance, on those accepted ultimate criteria — does not pose any special problem; because, as Ricardo Guibourg correctly remarked, "seen from within, any system [is] circular" (Guibourg 1993, 431).

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

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