What is the rule of recognition in the United States?

• Author: Carey, Stephen V.

INTRODUCTION I. HART, DWORKIN, AND INCLUSIVE POSITIVISM: THE DEBATE IN THE BACKGROUND A. Hart and the Rule of Recognition B. Dworkin's Critique C. Inclusive Positivism: The Positivist Answer to the Problem of Morality II. PREVIOUS ACCOUNTS OF THE U.S. RULE OF RECOGNITION: GREENAWALT AND HIMMA A. Kent Greenawalt's The Rule of Recognition and the Constitution B. Kenneth Einar Himma's U.S. Rule of Recognition C. Objections to Himma's Rule 1. Empirical Objections 2. Philosophical Objections III. THE RULE OF RECOGNITION FOR THE UNITED STATES: A PROPOSAL AND DEFENSE CONCLUSION INTRODUCTION

Debates in legal philosophy tend to take place in rarified air, involving highly theoretical and abstract arguments about conceptually possible legal systems, while rarely concerning themselves with the actual governments and legal systems that we mortals encounter here on earth. Still, it can be helpful--both for the legal philosophers and the more general legal community--to drag these theoretical arguments down from the stratosphere and see how they can be adapted to describe and explain the workings of an actual legal system. Through such an exercise, legal philosophers may "check their work," so to speak, uncovering the flaws that become apparent when their theories are put through the rigors of reality, and practitioners can see how the underlying theoretical framework of the nature of law itself might help them to understand, and perhaps even improve, the functioning of their particular legal system.

The positivist account (1) of law provided by H.L.A. Hart in his seminal work, The Concept of Law, (2) provides an obvious choice for application to an existing legal system. It is no exaggeration to say that Hart's work has set the context, terminology, and structure of the central debates in jurisprudence over the last fifty years. (3) In addition, almost all of the most important contributions to legal philosophy over that period have been either rejections of Hart's theory (4) or attempts to re fine, modify, or develop it. (5) Hart's most important contribution to legal theory is arguably the introduction of the concept of "the rule of recognition" (6)--the ultimate criteria of legal validity in a given legal system--which fundamentally altered the longstanding clash between legal positivists and natural-law theorists about the nature of law. (7) The rule of recognition is a complex idea, but it may be described most simply as the rule that is used to identify those other rules that are valid as law in a given legal system. (8)

To bring Hart's theory outside of a purely theoretical debate, then, one must show how his understanding of law itself can provide an individual in a given legal system with some articulation of that system's rule of recognition; that is, it must provide the individual with a rule, whether complex or simple, that would allow that individual to determine whether a given norm is or is not a law in that system. Therefore, for it to be practically useful, Hart's concept of the rule of recognition should be applicable to an existing legal system. In applying this theory to reality, one will hopefully be able, first, to uncover some of the strengths and weaknesses of Hart's highly influential account of the nature of law, and, second, to provide the legal theorists of a given legal system with a better understanding of how their system works.

Hart at least made a passing attempt to tether his theory to reality by suggesting, by way of example, that the rule of recognition for the United Kingdom is "what the Queen in Parliament enacts is law." (9) Whether or not this statement is an accurate description of that legal system, it has proven much harder to provide a similarly succinct rule for the United States. Due to the myriad complications inherent in the United States legal system, (10) Hart's supposedly simple positivist description of the law has proven quite difficult to apply. In his famous and powerful critique of Hart's theory, Ronald Dworkin asserts that the difficulties that arise when trying to apply the Hartian model to the United States demonstrate fatal flaws in the theory. (11) In Dworkin's view, because Hart's positivist thesis fails to account for some of the most essential components of legal systems like America's, positivism ultimately fails as an account of law in general. If Hart's theory is to have any practical effect for citizens of the United States, then, it must answer Dworkin's criticism and account for those parts of the American legal system that Hart's theory seemingly denies or ignores.

A few theorists have attempted to formulate such a rule of recognition for the United States. This Comment will present and critique those previous accounts, ultimately building upon them to suggest a plausible American rule of recognition. Part I focuses on Hart's theory, Dworkin's criticism, and the response to that criticism by the so-called "soft" or "inclusive" positivists. Part II documents and evaluates previous attempts to provide a rule of recognition in the United States, beginning with the work of Kent Greenawalt and then moving to the more recent debate between Kenneth Einar Himma and Matthew Kramer. Finally, Part III presents my own account of the rule of recognition in the United States, and argues that an inclusive-positivist rule of recognition can be created for our legal system, but only if certain controversial empirical assumptions about the nature of law in the United States are correct. Through the process of developing this rule, I uncover some of the deficiencies in Hart's account of the nature of law and present some possible solutions to the problems that these deficiencies present. Furthermore, I explore how certain theories of American constitutional law--most importantly, theories involving some form of popular constitutionalism--may prove to be in compatible with a plausible positivist theory of law for the United States.

1. HART, DWORKIN, AND INCLUSIVE POSITIVISM: THE DEBATE IN THE BACKGROUND

   1. Hart and the Rule of Recognition

      In 1961, H.L.A. Hart changed the context of modern jurisprudential debate by introducing his concept of the rule of recognition and the corresponding positivist account of law. Most importantly, Hart argued that law is a social fact and thus can be distinguished from morality. (12) As opposed to moral norms, which are true regardless of social practice or acceptance, legal norms, according to Hart, are explicitly determined by social practice. (13) Thus, Hart offered his own descriptive theory of law, derived from rules of conduct, where a rule is a "kind of complex social practice that consists of a general and regular pattern of behavior among some group of persons, together with a widely shared attitude within the group that this pattern is a common standard of conduct to which all members of the group are required to conform." (14)

      Hart distinguishes between two possible attitudes that can be taken toward such norms, which he calls the "internal" and "external" points of view. If the individual is an observer of the norm but does not actually accept the norm as binding, that individual has an external point of view. If, on the other hand, an individual accepts the norm and uses it as her guide for conduct, then the individual can be said to have taken the internal point of view. The internal point of view is useful for determining when a social norm transforms into a "rule" and thus rises above the level of a mere convergent social habit. (15) A social norm becomes a rule "when the general demand for conformity is insistent and the social pressure brought to bear upon those who deviate or threaten to deviate is great." (16) Thus, in Hart's theory, a rule has both a behavioral element, with a convergent pattern of conduct, and a cognitive element, where participants develop a critical, reflective attitude toward the norm and criticize deviations from that norm by others in the community. (17) This is often called the "conventional" nature of Hart's account, where "[r]ules are conventional social practices if the general conformity of a group to them is part of the reasons which its individual members have for acceptance." (18)

      According to Hart, every legal system has criteria by which it distinguishes legal rules from nonlegal norms. (19) Hart describes these criteria by first distinguishing between "primary rules," or rules that require the participants of a legal system to do or abstain from doing certain actions, and secondary rules, which "provide that human beings may by doing or saying certain things introduce new rules of the primary type, extinguish or modify old ones, or in various ways determine their incidence or control their operations." (20) A legal system advances past a "primitive" state and becomes "fully developed" when it moves past primary rules to include secondary rules. (21) The rule of recognition, a special kind of secondary rule, provides the test for validity for all other rules, in that "[t]o say that a given rule is valid is to recognize it as passing all the tests provided by the rule of recognition." (22) Such a rule of recognition lies at the foundation of every "fully developed" legal system and thus is a necessary condition for the existence of a legal system. In those systems, it is the ultimate or supreme rule of the system and is not subject to some other test for its own validity. (23) Furthermore, the minimum conditions of a legal system require, first, that those rules of behavior that are deemed valid by the rule of recognition be generally obeyed by the private citizens, and, second and most importantly, that the officials in society adopt the internal point of view with regard to this rule of recognition. Thus, the average citizen need only obey the rules through his or her actions, whereas the officials must hold the rule of recognition "as [the] common standard[] of official...