A Critical Study of the Essence of the Rule of Recognition

Herbert L. Hart considers the rule of recognition as the ultimate criterion for the validity of a legal system and its rules. Doubts about the validity of a rule in a primitive legal system-which has only primary rules- due to lack of a formal and valid criterion for recognition, leads to the “uncertainty issue”. But in a matured legal system, secondary rules – rules on recognition, change, and supervision – remove the system’s uncertainty, instability and inefficiency. The purpose of this research is to analyze and identify the rule of recognition as a criterion for determining the validity of other rules in a legal system. Criticisms of the recognition rule have been divided into four categories; the first critique is related to the essence of the legal system meaning that its scope determines its autonomy. The second critique is lack of normative features in the rule of recognition. The third critique is its incompatibility with the ultimate criteria of legal validity. Finally, the fourth critique is hermeneutical. However, some, using Hart's positivist methodology, believe that the rule of recognition lacks the characteristics of a rule and suggest "the idea of recognition" instead.