The rule of recognition and the emergence of a legal system
The paper claims that the rule of recognition, given the way it is presented by Hart, cannot be a constitutive rule of any legal system as a whole, but rather a constitutive rule of (primary) legal rules as elements of a legal system. Since I take the legal system to be an institutional artifact kin...
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| Vydáno v: | URI:https://journals.openedition.org/revus, |
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| Hlavní autor: | |
| Médium: | Article ou chapitre numérique |
| Jazyk: | Anglais |
| Vydáno: |
Revus
2016
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| Témata: | |
| On-line přístup: | Accès Université d'Orléans et IFPM Accès Université d'Orléans et IFPM |
| Shrnutí: | The paper claims that the rule of recognition, given the way it is presented by Hart, cannot be a constitutive rule of any legal system as a whole, but rather a constitutive rule of (primary) legal rules as elements of a legal system. Since I take the legal system to be an institutional artifact kind, I claim that, in order to account for a legal system as a whole, at least two further constitutive rules, in addition to the rule of recognition as a token-element constitutive rule, are needed – one constitutive of legal officials and the other constitutive of a legal system as a token. However, given the central role the legal officials' practice occupies in establishing a particular instantiation or token of a legal system, I also claim that the rule of recognition cannot be understood as 'merely' a token-element constitutive rule but also as a legal system's implementation or concretisation rule. |
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