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The Rule of Recognition

  • Manuel Atienza
  • Juan Ruiz Manero
Part of the Law and Philosophy Library book series (LAPS, volume 34)

Abstract

So far, we have been occupied with different kinds of legal sentences. The purpose was to clarify what kinds of pieces the machinery of the law consists of. In this chapter, our aim is rather to examine that machinery as a whole. As is commonly known, in the legal theory of the positivist tradition, the unity of the legal system has been seen as a correlate of the possibility to refer each and every one of its provisions to a single ‘master norm’ — to use the expression coined by Dworkin (1978) — located above the norms issued by the system’s authorities. That ‘master norm’ is understood in different ways, and it has also been given different names, of which those of ‘basic norm’ (Grundnorm) (Kelsen) and ‘rule of recognition’ (Hart) are the most famous. As is also well known, for Kelsen, this norm which is presupposed by legal theorists, states “In short: One ought to behave as the constitution prescribes” and is “the condition under which the subjective meaning of the constitution-creating act, and the subjective meaning of the acts performed in accordance with the constitution, are interpreted as their objective meaning, as valid norms ” (Kelsen 1967, 201 and 204). In Hart’s version, in turn, it is the norm providing the ultimate criteria of legal validity and which exists “as a complex, but normally concordant, practice of the courts, officials, and private persons in identifying the law by reference to certain criteria” (Hart 1994, 110).1

Keywords

Legal System Basic Norm Legal Order Legal Norm Ultimate Source 
These keywords were added by machine and not by the authors. This process is experimental and the keywords may be updated as the learning algorithm improves.

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References

  1. 1.
    The common problem underlying Kelsen’s notion of the ‘basic norm’ as well as Hart’s notion of the ‘rule of recognition’ is that of the unity of the legal system and of the obligatoriness of its ultimate sources. Kelsen’s notion, however, points to a norm presupposed by legal theorists and which is a condition of the possibility of a pure legal science, i. e., which excludes “everything that is not strictly law” (Kelsen 1967, 1) — e. g., ethics, politics, and value judgments in general, on the one hand, and causal sentences, on the other. Hart’s notion, in turn, points to a norm that exists insofar as it is socially accepted and that is the condition of the existence of a legal system. Still, one should not forget that, according to Kelsen, it only makes sense to presuppose the basic norm with respect to systems of norms that are, as a whole, socially effective. Thus, both constructions are answers to — or, if you prefer, conceptions of — the central problem common to all the different versions of conceptual legal positivism: that of the social roots of that normative system we call ‘the law’. As will be seen, the following exposition is more in line with Hart’s answer. On some of the deficiencies of Kelsen’s principle of effectiveness, cf. Ruiz Manero 1991.Google Scholar
  2. 3.
    Here and elsewhere in the text, we use the expression ‘judiciary’ and other, similar expressions (like ‘judges and courts’, etc.) in a loose sense, encompassing not only the judicial organs belonging to the ‘third power’, but all organs “concerned with the authoritative determination of normative situations in accordance with pre-existing norms” — to say it in the words of Joseph Raz (1990, 134) —, as for example (to mention two very different examples) the Constitutional Court and the so-called economic-administrative courts (which are organs not of the judiciary, but of public administration).Google Scholar
  3. 4.
    Peces-Barba’s complete thesis is that the basic norm consists not only of the highest values, but also of the sovereignty from paragraph 2 of that same article 1: ‘National sovereignty belongs to the Spanish people from whom the powers of the state are derived.’ The two parts of the article are said to be complementary in the following way: “If we take a closer look at the answer to the questions ‘Who commands?’ and ‘How does he command?’, that is, at sovereignty and the rule of law, we are facing the kind of legal organization Kelsen had in mind when he constructed his theory of dynamic orders, that is, the basic norms of the formal constitution, whereas if we look at the answer to the question ‘What is commanded?’, that is, at the highest values, we are facing the basic norm of the material constitution. They are inseparable, and both perspectives make up the basic norm, articles 1.1 and 1.2 of the Spanish Constitution” (Peces-Barba 1984, 93). “The formal basic norm — popular sovereignty and the rule of law — and the material basic norm — liberty, justice, equality, and political pluralism — express one and the same ideological conception which is the foundation of the constitutional consensus of the Spanish people. The first reflects the legal structure of a representative-parliamentary state, the second the theory of justice, the material contents of a representative-parliamentary state order” (ibid., 94).Google Scholar
  4. 5.
    This may be controvertible, but we do not want to discuss it here. In any case, cf. Laporta (1984) and Ruiz Miguel (1988).Google Scholar
  5. 7.
    By referring to a certain ultimate source, the rule of recognition enables us to identify the independent norms of a legal order. In legal theory, the expression ‘independent norms’ has been coined for those norms whose validity, or belonging to a legal order, is predicated directly from the rule of recognition, and not from criteria of validity or belonging provided by other norms (cf. Caracciolo 1988). That means that the norms contained in the ultimate source the rule of recognition of a legal order refers to are independent norms of that order. Based on this, the rule of recognition of any legal order can be presented in one and the same canonical form. As a guide of behaviour, it would say ‘Independent norms and norms issued or received in accordance with them ought to be obeyed’; and as a criterion for evaluation, it would say ‘Behaviour and decisions ought to be evaluated (i. e., considered justified or unjustified) only on the basis of independent norms and the norms issued or received in accordance with them’. Finally, if what we want is the criterion for the identification of legal norms provided by the rule of recognition, then the formulation would be ‘Legal norms are all independent norms and all norms issued or received in accordance with them’. If the legal system in question has more than one ultimate source — as is the case, for example, in English law (cf. below, 8.1) —, the formulation of the rule of recognition must also reflect the rank order of those different sources (and of the sets of independent norms contained in each one of them).Google Scholar
  6. 10.
    The authors use the term’ sovereign norm’ for referring to the concept which we have prefered to call an ‘independent norm’ (cf. above, n. 6); the expression’ sovereign norm’ is taken from von Wright (1963, 199).Google Scholar
  7. 11.
    On this point, see Guibourg/Mendonça (1995).Google Scholar
  8. 12.
    Juan Carlos Bayón defines a ‘convention’ in the following way: “A regularity R in the behaviour of the members of a group G in a recurring situation S is a convention if and only if in (almost) all cases of S 1) there is general knowledge in G that a) (almost) everyone follows R; b) (almost) everyone expects (almost) everyone else to follow R; c) (almost) everyone prefers to follow R?, provided (almost) everyone else does; d) (almost) everyone prefers that everyone follow some regularity, to not following any; and 2) (almost) all members of G follow R in situations S precisely because the preceding conditions are fulfilled” (Bayón 1991a, 660 f.).Google Scholar
  9. 14.
    This point has been underscored especially by Josep Aguiló Regla (1994).Google Scholar
  10. 15.
    On the concepts of ‘operative reason’ and ‘auxiliary reason’, cf. above, chs. I and II.Google Scholar

Copyright information

© Springer Science+Business Media New York 1998

Authors and Affiliations

  • Manuel Atienza
    • 1
  • Juan Ruiz Manero
    • 1
  1. 1.Universiy of AlicanteAlicanteSpain

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