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A Rule of Recognition and U.S. Democracy

The enterprise of law is meaningless without jurisprudence. One of the most monumental theorists who recognized this was H.L.A Hart, whose magnum opus, The Concept of Law, provides an analytically rigorous framework that delineates his original approach to understanding jurisprudence. Introducing a “rule of recognition” is a principal pillar of his argument. The “rule of recognition” lays out criteria that identify which rules are counted as valid under a system of law. In this paper, I will argue how Hart’s concept of a “rule of recognition” is not only crucial for democratic deliberation but also for maintaining the legal validity of foundational texts in U.S. law, such as the Bill of Rights and the Constitution.


I will define democratic deliberation as a process that allows states to determine the interpretation of certain laws that they want to adopt, allowing individuals in these states to deliberate over federal court decisions. Furthermore, I will fortify my claims by arguing that neglecting the “rule of recognition” results in the weakening of democracy. In short, I argue that Hart’s illuminating conception of a “rule of recognition” is quintessential in sustaining the legal validity of fundamental texts in U.S. law, which is necessary for the continuous legitimacy of the legal system. I will also discuss how the recent decisions of the Supreme Court challenge the integrity of democracy, highlighting the urgency of the issue. 


At the core of Hart's legal analysis is his dependency upon rules; he distinguishes rules from habits and uses the concept of rules to analyze rudimentary legal concepts such as legal validity, obligation, and sovereignty. To Hart, a rule is something that people are obliged to do, while a habit is having consistent behavior. For example, people in a village might have the habit of going to the movies every Saturday but that is not a rule; it is a habit because it is a consistent behavior of the people in that village. Whereas, a rule such as the inability to inflict unnecessary bodily harm to another person is such that people must refrain from doing this. It cannot be a coincidence of a consistent behavior wherein people refrain from this action. They are obliged not to do it, which goes beyond that scope. Hart separates rules that direct people to act or refrain from acting from rules that direct people to create legislation, wills, and contracts. Primary rules impose duties upon a person; for example, civil rights refrain individuals from discriminating against others whether they would like to or not. 


There are two ways in which rules impose an obligation: individuals' general conformity towards the rule and the societal pressure individuals have amongst themselves to abide by such rules. Primary rules impose duties, while secondary rules grant powers. Secondary rules contrast primary rules as they specify the procedure for identifying which rules will be treated as valid legal system rules, encouraging lawmakers to legislate, adjudicate, and specify sanctions. Hart argues that a society solely dependent upon primary rules will result in defective and myopic forms of social control as there are no secondary rules to determine which rules are to be treated as valid. In this vein, Hart's argument through the "rule of recognition" goes against the idea that obligations restricting the use of violence, theft, and deception are a sufficient condition for effective social control.


"A rule of recognition" is a rule that fortifies the persistent legal validity of rules that govern a society; by treating specific legal system rules legitimately, there is any uncertainty about the rules. This allows democracy to be held intact by such a concrete foundation. Elaborating on the potency of a rule of recognition is its strength being backed by authoritative texts. A rule of recognition is treated with continuous legal validity because it references an authoritative text, this is shown through the Bill of Rights and Constitution, which are the paradigmatic texts which underlie the electoral process in the United States. Regardless of the ideology or desires of a political representative, they must abide by the precepts laid out in the Bill of Rights and Constitution. Therefore, the Bill of Rights and Constitution are authoritative texts which are the rules of recognition in the United States.


The concept of a rule of recognition is imperative not only for understanding the unflinching legal validity of texts such as the Bill of Rights and the Constitution but also for a functioning democracy. Currently the Supreme Court has oft-cited “democratic deliberation” as justification for its overturning of Roe v. Wade, 410 U.S. 113 (1973). The perspective held by legal theorists Melissa Murray and Katherine Shaw argue that the overturning of Roe v. Wade and the usage of democratic deliberation as justification for it illustrates rhetorical power that hides the judicial imperialism underlying their reasoning.


So while the decision was riddled with sanctimonious claims about democracy the conception of democracy which is upheld was myopic. Its version of democracy is one which is understood solely through political power which overlooks the metrics involved in representation in electoral offices and campaign finances. Instead of fortifying the strength of the Constitution this erodes its legal validity because these justices are weakening the protections of the amendments for citizens with such decisions.


Without rules of recognition, there are no rudimentary rules in our legal system that we can refer to to guide our political representatives. Justice becomes perceived as a matter of conflicts of interest instead of an impenetrable characteristic of democracy. Our legal system and the judges representing it must uphold foundational texts that spell out the U.S. interpretation of democracy. A failure to identify and fortify such fundamental rules of U.S. democracy results in an increasingly unstable view of our country’s future, a situation that we must urgently address.



Cases Referenced:


Hart, H. L. A. The Concept of Law. Third edition, Oxford University Press, 2012. 


Robert S. Summers, Professor H.L.A. Hart’s Concept of Law, 1963 Duke Law Journal 629-670 (1963), https://scholarship.law.duke.edu/dlj/vol12/iss4/2.


Melissa Murray and Katherine Shaw.Dobbs and Democracy, January 2024 Harvard Law Review, https://harvardlawreview.org/print/vol-137/dobbs-and-democracy/.




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