The rule of recognition and the emergence of a legal system

• Autores: Luka Burazin
• Localización: Revus: Journal for constitutional theory and philosophy of law, ISSN 1581-7652, ISSN-e 1855-7112, Nº. 27, 2015 (Ejemplar dedicado a: Emergence, Coherence, and Interpretation of Law)
• Idioma: inglés
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• Dialnet Métricas: 1 Cita
• Resumen

  • 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.