Is the Rule of Recognition a Rule?

Author: Schauer Frederick  

Publisher: Hart Publishing

ISSN: 2041-4013

Source: Transnational Legal Theory, Vol.3, Iss.2, 2012-07, pp. : 173-179

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Abstract

The great contribution of Brian Simpson's enduring 'The Common Law and Legal Theory' is in helping us to understand the nature and limitations of the idea of a rule of recognition in positivist legal theory. Although Simpson's critique challenges the traditional Austinian conception of positivism more than HLA Hart's, it does help us to understand better the idea of a rule of recognition. Simpson does not challenge the notion that recognition as a social fact is necessary for the existence of law, but he argues, largely correctly, that recognition is better understood in terms of Wittgensteinian practices, and of a constantly evolving and bottom-up practice of distinguishing law from non-law. Such a perspective seems better able to explain the common law than one that uses the label 'rule', and for this Simpson's analysis remains important even as understandings of legal positivism have become more refined.