Title

Rules of Recognition, Constitutional Controversies, and the Dizzying Dependence of Law on Acceptance

Document Type

Article

Publication Date

2008

Abstract

In this essay we take up the question of the non-legal 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, we shall raise but not necessarily resolve several questions about Hart's own account of the rule of recognition. But even though we leave those questions largely unresolved, we shall come away from this discussion with a sufficiently firm grasp of the idea of a rule of recognition to proceed to the second part of the essay. In that part we look 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. And when we do so, we shall encounter some foundational questions about constitutional law and interpretation: Does the rule of recognition in the American legal system change over time, and if so, how does this occur? Has the Constitution itself changed other than by organic processes - processes prescribed by the Constitution itself - and, if so, how? If interpreters employ different interpretive methodologies in interpreting the Constitution, is there one constitution, or are there several (overlapping) constitutions? And if the latter, how is stability achieved? If the Supreme Court (or some other governmental body with final interpretive authority) misinterprets the Constitution, what is the legal status of such a misinterpretation, and why? And finally, given that one function of a constitution is to entrench the "rules of the game," and given that any entrenched rule will suffer from over- and under-inclusiveness with respect to its background purposes, how is it possible for officials and citizens to accept as binding the ultimate rule of recognition and the constitutional and subconstitutional rules it pedigrees?

Our enterprise in this paper is primarily conceptual and descriptive rather than normative. We shall be attempting to identify the rule of recognition in the United States. Or rather, we shall be attempting to identify the multiple rules of recognition in the United States, for we believe that actual American recognitional practices are multifaceted. There is also, however, a normative element in our paper, for we maintain that settlement for settlement's sake is an important legal, social, and moral value, and yet our existing recognitional practices inevitably put settlement at risk.

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