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This chapter analyzes the limits to Hart's account of an official-operated rule of recognition as an account of the existence and borders of legal systems. The argument is developed via assessment of the success of the account's solutions to problems of circularity and indeterminacy in the identification of a distinct class of legal officials whose practices constitute the rule of recognition. It is shown that while the problem of circularity may have been adequately addressed in explanation of state legal systems, its solutions leave intact the problem of indeterminacy and reveal a strong presumption of hierarchy which threatens to run past rather than solve issues at the borders of legality. This is true in explanation of state legal systems, but the difficulties are particularly troubling in explanation of international law, as analysis of Hart's view of international law makes plain.

This chapter argues that Hart's doctrine of the rule of recognition is flawed in two distinct but ultimately related ways. The first error is conceiving of the foundations of law as necessarily consisting of a rule that is constituted by a pattern of behavior and an associated normative attitude, which Hart calls the internal point of view. The second error is emphasizing the role of duty in the foundational arrangements of law, rather than the role of normative power. These two errors come together, in ways discussed in Section II, to unjustifiably restrict the scope of what Matthew Adler calls the “recognitional community”—that group of persons whose conduct plays a role in defining the content of the law in particular legal systems—to officials, and indeed not just to officials in general but to judges. Section III shows why Hart is mistaken, in his general discussion of the theoretical foundations of law, to privilege duty-imposing rules over power-conferring rules. Section IV explores, in a preliminary fashion, certain further considerations that suggest that—even within the framework of Hart's own theory of law—first, powerconferring rules should perhaps be privileged over duty-imposing rules, and second, Hart might be mistaken in thinking that every legal system necessarily contains a rule of recognition, in his sense of a general rule that imposes a duty on all officials (or on all judges) to apply all the other laws of the system. Finally, Section V suggests that while Hart was absolutely correct to emphasize the importance to legal theory of what he calls the internal point of view, his understanding of this notion was mistaken in two respects. The first was to regard the internal point of view as an attitude of endorsing the law as obligatory, rather than as involving a belief that the law possesses normative (meaning moral) powers. The second mistake was that he treated the internal point of view as a constitutive element of what he took to be the foundational element of every legal system, namely, the rule of recognition.

This chapter examines the opposition to the rule of recognition. Section I states Hart's doctrine of the rule of recognition with some precision. Section II attempts to detail the many roles that the rule of recognition plays within Hart's theory of law. Section III examines three important challenges to Hart's doctrine of the rule of recognition. Sections IV and V address these various objections. The chapter argues that although Hart's particular account of the rule of recognition is flawed and should be rejected, a related notion can be fashioned and should be substituted in its place. The idea, roughly, is to treat the rule of recognition as a shared plan that sets out the constitutional order of a legal system. Understanding the rule of recognition in this new way allows the legal positivist to overcome the challenges lodged against Hart's version while still retaining the power of the original idea.

This chapter asks what a rule of recognition actually is, what it does, and what it is good for. It asks what its relation is to other sorts of secondary rules that we may find in a constitutional system, particularly rules of change. H. L. A. Hart introduced the idea of a rule of recognition, and he made it a key feature of modern jurisprudence; most legal philosophers since Hart have followed him in emphasizing its centrality. But from time to time it is good to question a prevailing paradigm. The chapter poses this question: If we were not committed theoretically, as part of the basic ideology of modern legal positivism, to the centrality of the rule of recognition, what would we say about the importance of recognition in a modern legal system?

This chapter is about ultimate standards of law in the United States. It attempts to discern the jurisprudential implications of widespread practices involving the Constitution and other standards of law. The chapter proceeds at three levels: (1) application to the United States of Hart's concepts regarding the rule of recognition; (2) enrichment of those concepts in light of the United State#x0027;s law and legal institutions; and (3) evaluation of some strengths and weaknesses of this general approach to how ultimate legal standards are discerned, and a sketch of a fuller and more adequate account. The main body of the chapter primarily addresses the first level, though it involves comments of obvious relevance for the second level and lays the groundwork for discussion at the third. The end of the chapter draws together conclusions about how Hart's theory requires amplification, and treats the relevant disagreements between Hart and Dworkin in a systematic way.

This chapter takes up the question of the nonlegal foundations of any legal system and, in particular, H. L. A. Hart's notion of the ultimate rule of recognition—the master rule that pedigrees the other rules governing what officials and citizens are legally obligated to do. Initially, the chapter raises but not necessarily resolves several questions about Hart's own account of the rule of recognition. The second section of the chapter then looks at the United States Constitution—and the practices that have developed regarding its interpretation and enforcement—through the lens of the idea of an ultimate rule of recognition.

This chapter addresses the question of how participants in the United States legal system argue about constitutional interpretation (CI). The chapter is organized as follows. Section I discusses the various dimensions for evaluating a candidate semantics for some normative discourse, such as CI-discourse. Section II explicates RoR semantics. Section III reviews a sample of CI-discourse and discusses how social facts figure therein. Section IV analyzes whether rule of recognition (RoR) semantics describes or vindicates CI-discourse reasonably well, and reaches a negative conclusion. Section V looks beyond the rule of recognition model, in an initial and exploratory way.

This chapter defends the conventionality thesis — the claim that legal authority is made possible by a specific set of conventional social practice. It begins by considering the widely misunderstood relationship between the rule of recognition and the social practice of officials. It then argues that contrary to the views of many positivists, the rule of recognition purports to be, and can be, a duty-imposing rule. The chapter concludes by considering the objection that to explain the existence conditions of legal authority in terms of a rule of recognition whose existence condition depends on the behaviour of ‘officials’ is, in the end, to explain law in terms of law.

This chapter presents and defends a version of legal positivism, relying on two distinctions: one between epistemic and ontological conceptions of the rule of recognition, and the other between negative and positive positivism. The chapter argues that positivism is committed to the rule of recognition as a semantic or ontological rule only, and that its essential positive claim is that the authority of law everywhere is a matter of social convention. These points, taken together, make legal positivism both interesting and defensible. Because negative positivism is essentially a negative thesis, it cannot be undermined by counter-examples, any one of which would show only that, in some community or other, morality is a condition of legality at least for some norms.

This chapter expounds the idea of a Rule of Recognition (that is, a basic set of law-ascertaining criteria) in every legal system. It then parries Kenneth Himma's criticisms of Inclusive Legal Positivism and Incorporationism. In so doing, the chapter expands on Chapter 2's explanation of how moral principles can enter into the law of a legal system whose officials are mistaken in many of their concrete moral judgments.

This chapter responds to claims that the Supreme Court behaves lawlessly whenever it follows erroneous past decisions, by invoking and applying H. L. A. Hart's famous assertions that the ultimate foundation for all legal claims lies in a “rule of recognition” and that the rule of recognition owes its status to “acceptance.” It is argued that Article VI and other provisions of the written Constitution do not exhaust the pertinent American rule or practice of recognition; accepted rules or practices of recognition accord judicial precedent a sometimes authoritative status. In developing this argument, the chapter explores whether Hart's account requires adaptation to provide an adequate explanation of American constitutional practice—which is famously argumentative and not obviously rule-bound—and, if so, what forms the adjustments ought to take. The ultimate goal is to use Hartian positivist theory to illuminate American constitutional adjudication, and especially the role of precedent within it, while deploying American constitutional practice as a prism through which to examine some of Hart's ideas.

Legal theorists specializing in constitutional theory have tended to regard positivism and other conceptual theories as irrelevant; the idea is that a theory of the concept of law cannot tell us anything that helps to solve substantive issues of constitutional theory. There is something to this complaint. A theory of the concept of law merely fleshes out the metaphysical implications of the social commitments governing use of the concept-term “law,” and tells us how to distinguish something that is law from something that is not. But knowing how to do this does not seem to help answer the normative questions typically asked by constitutional theorists: it will not help answer the question of how the constitution is properly interpreted or the question of who should decide what the constitution means. About all an analysis of a concept can tell you is how to identify the things to which the concept applies, but our pre-theoretic understanding of the concept is usually, by itself, enough to do this. This chapter attempts to determine how the Constitution and rule of recognition are related by examining the practices of officials. This will not solve any interesting issues of constitutional theory, but it entails that judicial supremacy extends further than is commonly assumed, making the morally normative issues associated with this practice in a democratic system of governance even more difficult.

This chapter presents an epistemic account of the internal point of view. It argues that to have the internal point of view towards law is to be epistemically guided by law and especially by the rule of recognition. The chapter is divided in the four parts. The first part argues contra Shapiro that Hart accepts a variety of motives for one's conformity, which do not include the consideration that a legal rule applies. The second part argues contra Holton that the inconsistency in Hart's account of the internal point of view arises only on Holton's assumption that the internal point of view has motivational clout and that this assumption is ungrounded. The third part constructs an account of the internal point of view on which it provides only epistemic guidance. Finally, the fourth part explains how, on the proposed account, the internal point of view is distinguished from the external point of view.

This chapter attempts to revisit the relationship between incorporationism and the rule of recognition. In doing so, the chapter reviews various accounts of normative force or authority and outlines an alternative account of the rule of recognition in such a way that it emphasizes the fact that the rule of recognition is a convergent social practice among officials. The chapter also offers an outline of the general account of the authority of rules subordinate to the rule of recognition. Finally, the chapter also suggests an argument for imposing constraints on legal authority that operates on the claim that legal authority must respect the norms of autonomy and equality implicit in the social practice of giving reasons. Legal positivism is described in the chapter as having two basic tenets: the rule of recognition and the separability thesis.

This chapter suggests a distinction between two main kinds of social conventions, coordination and constitutive, arguing that the latter kind is far more important for the explication of the conventional foundations of law. The fact that law is largely founded on constitutive conventions also explains why the law is partly, and in a very limited way, an autonomous social practice. Two questions are addressed in this chapter: whether there are rules of recognition, along the lines suggested by H. L. A. Hart; and the age-old issue of the autonomy of law. The chapter shows how these two issues are closely related, with social conventions holding these two themes tightly knit in one coil.

The existence of unwritten constitutions, such as that of the UK, strikes some as puzzling. However the existence of unwritten constitutions turns out to be easier to explain than the existence of written constitutions, such as that of the US. This chapter explores some tricky conceptual questions thrown up by written constitutions. The biggest of these is: What is a constitution? This chapter suggests (a) that a constitution is not only an important part of the law but also a set of extra‐legal political constraints; (b) that the fact that a constitution is written allows, and indeed requires, that the constitution also has a life in the case law and customary law of the system; (c) that what H.L.A. Hart called the rules of recognition of a legal system are not best regarded as part of its constitution, at any rate when the constitution is written. As the chapter goes on the criteria for regarding certain propositions of law as belonging to constitutional law (as opposed to administrative law or other parts of public law) are progressively refined. There is also discussion of some particular rules of constitutional amendment that apply in the UK and the US, which show the alleged differences between the two constitutions to be less radical than they are sometimes imagined to be.

This chapter attempts an original explanation of the independence of legal systems. The assumption made here is that constitutional independence can be explained, first, by observing that questions of sovereignty are closely related to issues which are central to the concept of a legal system; and secondly, by asserting the independence of local constitutional theory. A credible explanation for independence is set out in a series of propositions. The virtue of this explanation is that it provides an account of what lawyers, politicians and the public apparently assume: that Australia, Canada, and New Zealand are now independent and that that independence was achieved by legal means.

This chapter argues that the existence of the written Constitution crowds out arguments rooted in the customs of nonjudicial government. It offers support for the existence of the phenomenon, but undertakes nothing like what would be needed to measure its full scope. Nor does the chapter examine whether the phenomenon occurs in other legal systems with written constitutions. Accordingly, the chapter should be understood as attempting to raise consciousness. After the first section, the chapter proceeds in three sections. Section II introduces the concept of crowding out in other contexts and then provides three principal examples of constitutional crowding out of the extraconstitutional Rule of Recognition (eCRoR), involving Court packing, jurisdictional gerrymandering, and the right to vote in Presidential elections. Section III explores practical, normative, and theoretical questions: Within Hart's framework, can we develop workable standards for identifying customary rules of recognition, and should we even try? Finally, Section IV concludes by calling attention to an earlier effort along these lines by Karl Llewellyn, asking whether the chapter's formulation of the issue has a chance of succeeding where his largely failed.

This chapter attempts to identify what seem to be defects, for example, omissions and ideas not fully worked out, in The Concept of Law. What are principally of interest are issues which Hart discusses, if only in a limited way, or issues which, though not explicitly mentioned, must have been known by him to raise problems. Among these are Hart's ideas about the rule of recognition, comparative law, positivism, law and coercion, and common law.

The philosophy of law has tended to concern itself with the structural types of questions, such as whether the normativity of morality can be reduced to the normativity of rational self-interest. Legal positivists, such as John Austin, asserted a clear separation between law and morality, such as by equating the existence of legal duties with the likelihood of the duty-bearer suffering a sanction. However, his critics noted that one might have a legal duty even though one is in fact unlikely to suffer any sanction, and they took the failure of such reductive analyses to indicate a more general failure of legal positivism. Hans Kelsen originally sought to defend legal positivism, but ultimately concluded that positivism could sustain the normative character of law, though only by treating legal discourse as grounded in a basic assumption of law's bindingness, what he called the Grundnorm. HLA Hart rejected Kelsen's theory of the Grundnorm, but agreed that while reductivism was certainly to be rejected for its failure to capture the normative character of law, the rejection of reductivism should not lead to a rejection of legal positivism, since the prescriptive action-guiding character of propositions of law can still be preserved without grounding law in morality. However, the author argues that Hart's theory, though not to be underestimated in power and subtlety, should nevertheless be ultimately rejected for being a mere tautology, since by effectively defining legal validity in terms of derivability from the rule of recognition, it, of course, follows that the concept cannot be applied to the Rule itself.