Ross asked:

What is the rule of recognition, and what role does it play in helping us to understand how legal
systems operate?

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Isn't there a jurisprudence site?

As far as I understand it, rules of recognition actually are the legal system: This would be rules about
contracts and compensation and that the court can make rules itself in certain cases (e.g. in case law
when there is no precedent). As such they would seem to be the content of the law as well. The rule
of recognition is that those within the system must recognise these rules and that ultimately the court
and legal officials create the law. So the source of law is the legal system itself as opposed, for
instance, to morality as the source of law. This is also to define the law in terms of it's being a system
of rules as opposed to being a system of obedience and punishment or orders and threats. It does,
therefore, lead us to look at the nature of the rules and commitment and why they differ from moral
rules.

Hart thought that a society must accept primary rules if it is to survive. These primary rules are
restrictions on violence, theft and deception. Doubt about the scope of these rules leads to the rules
of recognition, or the written law. A sophisticated legal system does seem to be a set of rules rather
than a matter of, say, Austin's notion of obedience and punishment: We would find such descriptions
of systems barbaric. Perhaps Hart's definition of the legal system is correct but it is certainly open to
question and is much argued about. Whether or not it is correct it has led to questions in
jurisprudence of greater complexity than those raised by the obedience/ punishment model. See for
instance Hart's Postscript: Essays on the Postscript to the Concept of Lawedited by Jules Coleman.

To define the law in terms of its being based on our moral norms might help us understand the legal
system too, if we followed Dworkin rather than Hart. We could proceed by trying to discover what our
moral norms are and whether they are soundly based and then go on to assess whether laws and
actions of the courts correctly reflect our norms. This would lead to an understanding of how rules
map a possible source.

The role of something as specific as Hart's rule of recognition where this is acceptance of the legal
system by its officials in itself doesn't have much of a role in furthering understanding as far as I can
see. But in describing the legal system as a system of rules and, as such, reasons for action, further
analysis of these concepts is called for. Also that Hart's description or that his overall concept of the
law is taken as having a basic source in social conventions both allows competing theories to arise
and a further analysis of whether rules are conventions. All theories give rise to dispute and analysis.

As far as furthering understanding of how the legal systems operate, it would seem to me that
studying the law of legal systems themselves is the first principle of advancement.

Rachel Browne

Hart in his great text The Concept of Lawemphasises the role of rules in any adequate understanding
of the nature of law and legal systems. He suggests law is a union of primary and secondary rules.
Indeed the move from a pre-legal set up to a legal one is captured by the fact that in the pre-legal set
up individual behaviour is guided by primary rules whereas in the legal set up behaviour is guided by
primary and secondary rules. Secondary rules allow the overcoming of inevitable problems that arise
as a society becomes more complex. Among secondary rules are rules of adjudication and change
but absolutely fundamental is the rule of recognition. The rule of recognition is that by reference to
which the validity of a rule as law is established and by reference to which legal systems can be
identified. A rule is a valid law if and only if it can be traced back the relevant rule of recognition. Laws
are laws of a given legal system if they are all valid by reference to the same rule of recognition.

The great debate between (say) Hart and Dworkin in part is a debate about whether an adequate
understanding of law demands a rule of recognition or whether among the materials of law are
materials that enjoy full legal significance despite not having a pedigree owing anything to a rule of
recognition. If Dworkin is right and law is an irredeemably moral enterprise then at least issues to do
with rule of recognition are more complicated that a simple reading of Hart's seminal work might
suggest. You should read Hart's postscript to the 2nd edition of The Concept of Law.

Ian Gregory